II

106TH CONGRESS

1ST SESSION S. 1213

To amend the Indian Child Welfare Act of 1978, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 10, 1999

Mr. MCCAIN (for himself, Mr. CAMPBELL, and Mr. DOMENICI) introduced the

following bill; which was read twice and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Child Welfare Act of 1978, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Child Welfare

5 Act Amendments of 1999’’.

6 SEC. 2. EXCLUSIVE JURISDICTION.

7 Section 101(a) of the Indian Child Welfare Act of

8 1978 (25 U.S.C. 1911(a)) is amended—

9 (1) by inserting ‘‘(1)’’ after ‘‘(a)’’; and
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1 (2) by striking the last sentence and inserting

2 the following:

3 ‘‘(2) An Indian tribe shall retain exclusive jurisdiction

4 over any child custody proceeding that involves an Indian

5 child, notwithstanding any subsequent change in the resi6 dence or domicile of the Indian child, in any case in which

7 the Indian child—

8 ‘‘(A) resides or is domiciled within the reserva9 tion of that Indian tribe and is made a ward of a

10 tribal court of that Indian tribe; or

11 ‘‘(B) after a transfer of jurisdiction is carried

12 out under subsection (b), becomes a ward of a tribal

13 court of that Indian tribe.’’.

14 SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

15 Section 101(c) of the Indian Child Welfare Act of

16 1978 (25 U.S.C. 1911(c)) is amended by striking ‘‘In any

17 State court proceeding’’ and inserting ‘‘Except as provided

18 in section 103(e), in any State court proceeding’’.

19 SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

20 Section 103(a) of the Indian Child Welfare Act of

21 1978 (25 U.S.C. 1913(a)) is amended—

22 (1) by striking the first sentence and inserting

23 the following:

24 ‘‘(a)(1) Where any parent or Indian custodian volun25 tarily consents to foster care or preadoptive or adoptive
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1 placement or to termination of parental rights, such con2 sent shall not be valid unless—

3 ‘‘(A) executed in writing;

4 ‘‘(B) recorded before a judge of a court of com5 petent jurisdiction; and

6 ‘‘(C) accompanied by the presiding judge’s cer7 tificate that—

8 ‘‘(i) the terms and consequences of the

9 consent were fully explained in detail and were

10 fully understood by the parent or Indian custo11 dian; and

12 ‘‘(ii) any attorney or public or private

13 agency that facilitates the voluntary termi14 nation of parental rights or preadoptive or

15 adoptive placement has—

16 ‘‘(I) informed the natural parents of

17 the placement options with respect to the

18 child involved;

19 ‘‘(II) informed those parents of the

20 applicable provisions of this Act; and

21 ‘‘(III) certified that the natural par22 ents will be notified within 10 days after

23 any change in the adoptive placement.’’;

24 (2) by striking ‘‘The court shall also certify’’

25 and inserting the following:
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1 ‘‘(2) The court shall also certify’’;

2 (3) by striking ‘‘Any consent given prior to,’’

3 and inserting the following:

4 ‘‘(3) Any consent given prior to,’’; and

5 (4) by adding at the end the following:

6 ‘‘(4) An Indian custodian who has the legal authority

7 to consent to an adoptive placement shall be treated as

8 a parent for the purposes of the notice and consent to

9 adoption provisions of this Act.’’.

10 SEC. 5. WITHDRAWAL OF CONSENT.

11 Section 103(b) of the Indian Child Welfare Act of

12 1978 (25 U.S.C. 1913(b)) is amended—

13 (1) by inserting ‘‘(1)’’ before ‘‘Any’’; and

14 (2) by adding at the end the following:

15 ‘‘(2) Except as provided in paragraph (4), a consent

16 to adoption of an Indian child or voluntary termination

17 of parental rights to an Indian child may be revoked, only

18 if—

19 ‘‘(A) no final decree of adoption has been en20 tered; and

21 ‘‘(B)(i) the adoptive placement specified by the

22 parent terminates; or

23 ‘‘(ii) the revocation occurs before the later of

24 the end of—
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1 ‘‘(I) the 180-day period beginning on the

2 date on which the tribe of the Indian child re3 ceives written notice of the adoptive placement

4 provided in accordance with the requirements of

5 subsections (c) and (d); or

6 ‘‘(II) the 30-day period beginning on the

7 date on which the parent who revokes consent

8 receives notice of the commencement of the

9 adoption proceeding that includes an expla10 nation of the revocation period specified in this

11 subclause.

12 ‘‘(3) Immediately upon an effective revocation under

13 paragraph (2), the Indian child who is the subject of that

14 revocation shall be returned to the parent who revokes

15 consent.

16 ‘‘(4) Subject to paragraph (6), if, by the end of the

17 applicable period determined under subclause (I) or (II)

18 of paragraph (2)(B)(ii), a consent to adoption or voluntary

19 termination of parental rights has not been revoked, a par20 ent may revoke such consent after that date only—

21 ‘‘(A) pursuant to applicable State law; or

22 ‘‘(B) if the parent of the Indian child involved

23 petitions a court of competent jurisdiction, and the

24 court finds that the consent to adoption or voluntary
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1 termination of parental rights was obtained through

2 fraud or duress.

3 ‘‘(5) Subject to paragraph (6), if a consent to adop4 tion or voluntary termination of parental rights is revoked

5 under paragraph (4)(B), with respect to the Indian child

6 involved—

7 ‘‘(A) in a manner consistent with paragraph

8 (3), the child shall be returned immediately to the

9 parent who revokes consent; and

10 ‘‘(B) if a final decree of adoption has been en11 tered, that final decree shall be vacated.

12 ‘‘(6) Except as otherwise provided under applicable

13 State law, no adoption that has been in effect for a period

14 longer than or equal to 2 years may be invalidated under

15 this subsection.’’.

16 SEC. 6. NOTICE TO INDIAN TRIBES.

17 Section 103(c) of the Indian Child Welfare Act of

18 1978 (25 U.S.C. 1913(c)) is amended to read as follows:

19 ‘‘(c)(1) A party that seeks the voluntary placement

20 of an Indian child or the voluntary termination of the pa21 rental rights of a parent of an Indian child shall provide

22 written notice of the placement or proceeding to the tribe

23 of that Indian child. A notice under this subsection shall

24 be sent by registered mail (return receipt requested) to
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1 the tribe of the Indian child, not later than the applicable

2 date specified in paragraph (2) or (3).

3 ‘‘(2)(A) Except as provided in paragraph (3), notice

4 shall be provided under paragraph (1) by the applicable

5 date specified in each of the following cases:

6 ‘‘(i) Not later than 100 days after any foster

7 care placement of an Indian child occurs.

8 ‘‘(ii) Not later than 5 days after any

9 preadoptive or adoptive placement of an Indian

10 child.

11 ‘‘(iii) Not later than 10 days after the com12 mencement of any proceeding for a termination of

13 parental rights to an Indian child.

14 ‘‘(iv) Not later than 10 days after the com15 mencement of any adoptive proceeding concerning

16 an Indian child.

17 ‘‘(B) A notice described in subparagraph (A)(ii) may

18 be provided before the birth of an Indian child if a party

19 referred to in paragraph (1) contemplates a specific adop20 tive or preadoptive placement.

21 ‘‘(3) If, after the expiration of the applicable period

22 specified in paragraph (2), a party referred to in para23 graph (1) discovers that the child involved may be an In24 dian child—
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1 ‘‘(A) the party shall provide notice under para2 graph (1) not later than 10 days after the discovery;

3 and

4 ‘‘(B) any applicable time limit specified in sub5 section (e) shall apply to the notice provided under

6 subparagraph (A) only if the party referred to in

7 paragraph (1) has, on or before commencement of

8 the placement, made reasonable inquiry concerning

9 whether the child involved may be an Indian child.’’.

10 SEC. 7. CONTENT OF NOTICE.

11 Section 103(d) of the Indian Child Welfare Act of

12 1978 (25 U.S.C. 1913(d)) is amended to read as follows:

13 ‘‘(d) Each written notice provided under subsection

14 (c) shall be based on a good faith investigation and contain

15 the following:

16 ‘‘(1) The name of the Indian child involved, and

17 the actual or anticipated date and place of birth of

18 the Indian child.

19 ‘‘(2) A list containing the name, address, date

20 of birth, and (if applicable) the maiden name of each

21 Indian parent and grandparent of the Indian child,

22 if—

23 ‘‘(A) known after inquiry of—

24 ‘‘(i) the birth parent placing the child

25 or relinquishing parental rights; and
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1 ‘‘(ii) the other birth parent (if avail2 able); or

3 ‘‘(B) otherwise ascertainable through other

4 reasonable inquiry.

5 ‘‘(3) A list containing the name and address of

6 each known extended family member (if any), that

7 has priority in placement under section 105.

8 ‘‘(4) A statement of the reasons why the child

9 involved may be an Indian child.

10 ‘‘(5) The names and addresses of the parties in11 volved in any applicable proceeding in a State court.

12 ‘‘(6)(A) The name and address of the State

13 court in which a proceeding referred to in paragraph

14 (5) is pending, or will be filed; and

15 ‘‘(B) the date and time of any related court

16 proceeding that is scheduled as of the date on which

17 the notice is provided under this subsection.

18 ‘‘(7) If any, the tribal affiliation of the prospec19 tive adoptive parents.

20 ‘‘(8) The name and address of any public or

21 private social service agency or adoption agency in22 volved.

23 ‘‘(9) An identification of any Indian tribe with

24 respect to which the Indian child or parent may be

25 a member.
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1 ‘‘(10) A statement that each Indian tribe iden2 tified under paragraph (9) may have the right to in3 tervene in the proceeding referred to in paragraph

4 (5).

5 ‘‘(11) An inquiry concerning whether the Indian

6 tribe that receives notice under subsection (c) in7 tends to intervene under subsection (e) or waive any

8 such right to intervention.

9 ‘‘(12) A statement that, if the Indian tribe that

10 receives notice under subsection (c) fails to respond

11 in accordance with subsection (e) by the applicable

12 date specified in that subsection, the right of that

13 Indian tribe to intervene in the proceeding involved

14 shall be considered to have been waived by that In15 dian tribe.’’.

16 SEC. 8. INTERVENTION BY INDIAN TRIBE.

17 Section 103 of the Indian Child Welfare Act of 1978

18 (25 U.S.C. 1913) is amended by adding at the end the

19 following:

20 ‘‘(e)(1) The tribe of the Indian child involved shall

21 have the right to intervene at any time in a voluntary child

22 custody proceeding in a State court only if—

23 ‘‘(A) in the case of a voluntary proceeding to

24 terminate parental rights, the Indian tribe sent a no25 tice of intent to intervene or a written objection to
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1 the adoptive placement to the court or to the party

2 that is seeking the voluntary placement of the In3 dian child, not later than 30 days after receiving no4 tice that was provided in accordance with the re5 quirements of subsections (c) and (d); or

6 ‘‘(B) in the case of a voluntary adoption pro7 ceeding, the Indian tribe sent a notice of intent to

8 intervene or a written objection to the adoptive

9 placement to the court or to the party that is seek10 ing the voluntary placement of the Indian child, not

11 later than the later of—

12 ‘‘(i) 90 days after receiving notice of the

13 adoptive placement that was provided in accord14 ance with the requirements of subsections (c)

15 and (d); or

16 ‘‘(ii) 30 days after receiving a notice of the

17 voluntary adoption proceeding that was pro18 vided in accordance with the requirements of

19 subsections (c) and (d).

20 ‘‘(2)(A) Except as provided in subparagraph (B), the

21 tribe of the Indian child involved shall have the right to

22 intervene at any time in a voluntary child custody pro23 ceeding in a State court in any case in which the Indian

24 tribe did not receive written notice provided in accordance

25 with the requirements of subsections (c) and (d).
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1 ‘‘(B) An Indian tribe may not intervene in any vol2 untary child custody proceeding in a State court if the

3 Indian tribe gives written notice to the State court or any

4 party involved of—

5 ‘‘(i) the intent of the Indian tribe not to inter6 vene in the proceeding; or

7 ‘‘(ii) the determination by the Indian tribe

8 that—

9 ‘‘(I) the child involved is not a member of,

10 or is not eligible for membership in, the Indian

11 tribe; or

12 ‘‘(II) neither parent of the child is a mem13 ber of the Indian tribe.

14 ‘‘(3) If an Indian tribe files a motion for intervention

15 in a State court under this subsection, the Indian tribe

16 shall submit to the court, at the same time as the Indian

17 tribe files that motion, a tribal certification that includes

18 a statement that documents, with respect to the Indian

19 child involved, the membership or eligibility for member20 ship of that Indian child in the Indian tribe under applica21 ble tribal law.

22 ‘‘(f) Any act or failure to act of an Indian tribe under

23 subsection (e) shall not—

24 ‘‘(1) affect any placement preference or other

25 right of any individual under this Act;
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1 ‘‘(2) preclude the Indian tribe of the Indian

2 child that is the subject of an action taken by the

3 Indian tribe under subsection (e) from intervening in

4 a proceeding concerning that Indian child if a pro5 posed adoptive placement of that Indian child is

6 changed after that action is taken; or

7 ‘‘(3) except as specifically provided in sub8 section (e), affect the applicability of this Act.

9 ‘‘(g) Notwithstanding any other provision of law, no

10 proceeding for a voluntary termination of parental rights

11 or adoption of an Indian child may be conducted under

12 applicable State law before the date that is 30 days after

13 the tribe of the Indian child receives notice of that pro14 ceeding that was provided in accordance with the require15 ments of subsections (c) and (d).

16 ‘‘(h) Notwithstanding any other provision of law (in17 cluding any State law)—

18 ‘‘(1) a court may approve, if in the best inter19 ests of an Indian child, as part of an adoption de20 cree of that Indian child, an agreement that states

21 that a birth parent, an extended family member, or

22 the tribe of the Indian child shall have an enforce23 able right of visitation or continued contact with the

24 Indian child after the entry of a final decree of

25 adoption; and
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1 ‘‘(2) the failure to comply with any provision of

2 a court order concerning the continued visitation or

3 contact referred to in paragraph (1) shall not be

4 considered to be grounds for setting aside a final de5 cree of adoption.’’.

6 SEC. 9. PLACEMENT OF INDIAN CHILDREN.

7 Section 105(c) of the Indian Child Welfare Act of

8 1978 (25 U.S.C. 1915(c)) is amended—

9 (1) in the second sentence—

10 (A) by striking ‘‘Indian child or parent’’

11 and inserting ‘‘parent or Indian child’’; and

12 (B) by striking the colon after ‘‘consid13 ered’’ and inserting a period;

14 (2) by striking ‘‘Provided, That where’’ and in15 serting: ‘‘In any case in which’’; and

16 (3) by inserting after the second sentence the

17 following: ‘‘In any case in which a court determines

18 that it is appropriate to consider the preference of

19 a parent or Indian child, for purposes of subsection

20 (a), that preference may be considered to constitute

21 good cause.’’.

22 SEC. 10. FRAUDULENT REPRESENTATION.

23 Title I of the Indian Child Welfare Act of 1978 (25

24 U.S.C. 1911 et seq.) is amended by adding at the end

25 the following:
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1 ‘‘SEC. 114. FRAUDULENT REPRESENTATION.

2 ‘‘(a) IN GENERAL.—With respect to any proceeding

3 subject to this Act involving an Indian child or a child

4 who may be considered to be an Indian child for purposes

5 of this Act, a person, other than a birth parent of the

6 child, shall, upon conviction, be subject to a criminal sanc7 tion under subsection (b) if that person knowingly and

8 willfully—

9 ‘‘(1) falsifies, conceals, or covers up by any

10 trick, scheme, or device, a material fact concerning

11 whether, for purposes of this Act—

12 ‘‘(A) a child is an Indian child; or

13 ‘‘(B) a parent is an Indian;

14 ‘‘(2)(A) makes any false, fictitious, or fraudu15 lent statement, omission, or representation; or

16 ‘‘(B) falsifies a written document knowing that

17 the document contains a false, fictitious, or fraudu18 lent statement or entry relating to a material fact

19 described in paragraph (1); or

20 ‘‘(3) assists any person in physically removing

21 a child from the United States in order to obstruct

22 the application of this Act.

23 ‘‘(b) CRIMINAL SANCTIONS.—The criminal sanctions

24 for a violation referred to in subsection (a) are as follows:

25 ‘‘(1) for an initial violation, a person shall be

26 fined in accordance with section 3571 of title 18,
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1 United States Code, or imprisoned not more than 1

2 year, or both.

3 ‘‘(2) For any subsequent violation, a person

4 shall be fined in accordance with section 3571 of

5 title 18, United States Code, or imprisoned not more

6 than 5 years, or both.’’.

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