29–010

104TH CONGRESS REPORT

2d Session " ! SENATE 104–335

TO AMEND THE INDIAN CHILD WELFARE ACT OF 1978, AND

FOR OTHER PURPOSES

JULY 26, 1996.—Ordered to be printed

Mr. MCCAIN, from the Committee on Indian Affairs,

submitted the following

REPORT

[To accompany S. 1962]

The Committee on Indian Affairs, to which was referred the bill

(S. 1962) to amend the Indian Child Welfare Act of 1978, and for

other purposes, having considered the same, reports favorably

thereon without amendment and recommends that the bill do pass.

REPORT

The text of the bill follows:

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Indian

Child Welfare Act Amendments of 1996’’.

(b) REFERENCES.—Whenever in this Act an amendment

or repeal is expressed in terms of an amendment to or repeal of a section or other provision, the reference shall be

considered to be made to a section or other provision of the

Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

SEC. 2. EXCLUSIVE JURISDICTION.

Section 101(a) (25 U.S.C. 1911(a)) is amended—

(1) by inserting ‘‘(1)’’ after ‘‘(a)’’; and

(2) by striking the last sentence and inserting the

following:

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

over any child custody proceeding that involves an Indian

child, notwithstanding any subsequent change in the residence or domicile of the Indian child, in any case in which

the Indian child—
2

‘‘(A) resides or is domiciled within the reservation of

the Indian tribe and is made a ward of a tribal court

of that Indian tribe; or

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

under subsection (b), becomes a ward of a tribal court

of that Indian tribe.’’.

SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

Section 101(c) (25 U.S.C. 1911(c)) is amended by striking

‘‘In any State court proceeding’’ and inserting ‘‘Except as

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

SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

Section 103(a) (25 U.S.C. 1913(a)) is amended—

(1) by inserting ‘‘(1)’’ before ‘‘Where’’;

(2) by striking ‘‘foster care placement’’ and inserting

‘‘foster care or preadoptive or adoptive placement’’;

(3) by striking ‘‘judge’s certificate that the terms’’

and inserting the following: ‘‘judge’s certificate that—

‘‘(A) the terms’’;

(4) by striking ‘‘or Indian custodian.’’ and inserting

‘‘or Indian custodian; and’’;

(5) by inserting after subparagraph (A), as designated by paragraph (3) of this subsection, the following new subparagraph:

‘‘(B) any attorney or public or private agency that facilitates the voluntary termination of parental rights

or preadoptive or adoptive placement has informed the

natural parents of the placement options with respect

to the child involved, has informed those parents of

the applicable provisions of this Act, and has certified

that the natural parents will be notified within 10

days of any change in the adoptive placement.’’;

(6) by striking ‘‘The court shall also certify’’ and inserting the following:

‘‘(2) The court shall also certify’’;

(7) by striking ‘‘Any consent given prior to,’’ and inserting the following:

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

(8) by adding at the end the following new paragraph:

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

consent to an adoptive placement shall be treated as a parent for the purposes of the notice and consent to adoption

provisions of this Act.’’.

SEC. 5. WITHDRAWAL OF CONSENT.

Section 103(b) (25 U.S.C. 1913(b)) is amended—

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

(2) by adding at the end the following new paragraphs:

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

adoption of an Indian child or voluntary termination of parental rights to an Indian child may be revoked, only if—

‘‘(A) no final decree of adoption has been entered;

and
3

‘‘(B)(i) the adoptive placement specified by the parent terminates; or

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

of—

‘‘(I) the 180-day period beginning on the date on

which the Indian child’s tribe receives written notice of the adoptive placement provided in accordance with the requirements of subsections (c) and

(d); or

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

which the parent who revokes consent receives notice of the commencement of the adoption proceeding that includes an explanation of the revocation

period specified in this subclause.

‘‘(3) The Indian child with respect to whom a revocation

under paragraph (2) is made shall be returned to the parent who revokes consent immediately upon an effective

revocation under that paragraph.

‘‘(4) Subject to paragraph (6), if, by the end of the applicable period determined under subclause (I) or (II) of paragraph (2)(B)(ii), a consent to adoption or voluntary termination of parental rights has not been revoked, beginning

after that date, a parent may revoke such a consent only—

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

‘‘(B) if the parent of the Indian child involved petitions a court of competent jurisdiction, and the court

finds that the consent to adoption or voluntary termination of parental rights was obtained through fraud

or duress.

‘‘(5) Subject to paragraph (6), if a consent to adoption or

voluntary termination of parental rights is revoked under

paragraph (4)(B), with respect to the Indian child involved—

‘‘(A) in a manner consistent with paragraph (3), the

child shall be returned immediately to the parent who

revokes consent; and

‘‘(B) if a final decree of adoption has been entered,

that final decree shall be vacated.

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

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

than or equal to 2 years may be invalidated under this

subsection.’’.

SEC. 6. NOTICE TO INDIAN TRIBES.

Section 103(c) (25 U.S.C. 1913(c)) is amended to read as

follows:

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

Indian child or the voluntary termination of the parental

rights of a parent of an Indian child shall provide written

notice of the placement or proceeding to the Indian child’s

tribe. A notice under this subsection shall be sent by registered mail (return receipt requested) to the Indian child’s

tribe, not later than the applicable date specified in paragraph (2) or (3).
4

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

be provided under paragraph (1) in each of the following

cases:

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

placement of an Indian child occurs.

‘‘(ii) Not later than 5 days after any preadoptive or

adoptive placement of an Indian child.

‘‘(iii) Not later than 10 days after the commencement of any proceeding for a termination of parental

rights to an Indian child.

‘‘(iv) Not later than 10 days after the commencement

of any adoption proceeding concerning an Indian child.

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

provided before the birth of an Indian child if a party referred to in paragraph (1) contemplates a specific adoptive

or preadoptive placement.

‘‘(3) If, after the expiration of the applicable period specified in paragraph (2), a party referred to in paragraph (1)

discovers that the child involved may be an Indian child—

‘‘(A) the party shall provide notice under paragraph

(1) not later than 10 days after the discovery; and

‘‘(B) any applicable time limit specified in subsection

(e) shall apply to the notice provided under subparagraph (A) only if the party referred to in paragraph (1)

has, on or before commencement of the placement,

made reasonable inquiry concerning whether the child

involved may be an Indian child.’’.

SEC. 7. CONTENT OF NOTICE.

Section 103(d) (25 U.S.C. 1913(d)) is amended to read as

follows:

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

shall contain the following:

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

actual or anticipated date and place of birth of the Indian child.

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

birth, and (if applicable) the maiden name of each Indian parent and grandparent of the Indian child, if—

‘‘(A) known after inquiry of—

‘‘(i) the birth parent placing the child or relinquishing parental rights; and

‘‘(ii) the other birth parent (if available); or

‘‘(B) otherwise ascertainable through other reasonable inquiry.

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

known extended family member (if any), that has priority in placement under section 105.

‘‘(4) A statement of the reasons why the child involved may be an Indian child.

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

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

which a proceeding referred to in paragraph (5) is

pending, or will be filed; and
5

‘‘(B) the date and time of any related court proceeding that is scheduled as of the date on which the notice is provided under this subsection.

‘‘(7) If any, the tribal affiliation of the prospective

adoptive parents.

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

social service agency or adoption agency involved.

‘‘(9) An identification of any Indian tribe with respect to which the Indian child or parent may be a

member.

‘‘(10) A statement that each Indian tribe identified

under paragraph (9) may have the right to intervene

in the proceeding referred to in paragraph (5).

‘‘(11) An inquiry concerning whether the Indian

tribe that receives notice under subsection (c) intends

to intervene under subsection (e) or waive any such

right to intervention.

‘‘(12) A statement that, if the Indian tribe that receives notice under subsection (c) fails to respond in

accordance with subsection (e) by the applicable date

specified in that subsection, the right of that Indian

tribe to intervene in the proceeding involved shall be

considered to have been waived by that Indian tribe.’’.

SEC. 8. INTERVENTION BY INDIAN TRIBE.

Section 103 (25 U.S.C. 1913) is amended by adding at

the end the following new subsections:

‘‘(e)(1) The Indian child’s tribe shall have the right to intervene at any time in a voluntary child custody proceeding in a State court only if—

‘‘(A) in the case of a voluntary proceeding to terminate parental rights, the Indian tribe filed a notice of

intent to intervene or a written objection to the termination, not later than 30 days after receiving notice

that was provided in accordance with the requirements of subsections (c) and (d); or

‘‘(B) in the case of a voluntary adoption proceeding,

the Indian tribe filed a notice of intent to intervene or

a written objection to the adoptive placement, not

later than the later of—

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

placement that was provided in accordance with

the requirements of subsections (c) and (d); or

‘‘(ii) 30 days after receiving a notice of the voluntary adoption proceeding that was provided in

accordance with the requirements of subsections

(c) and (d).

‘‘(2)(A) Except as provided in subparagraph (B), the Indian child’s tribe shall have the right to intervene at any

time in a voluntary child custody proceeding in a State

court in any case in which the Indian tribe did not receive

written notice provided in accordance with the requirements of subsections (c) and (d).

‘‘(B) An Indian tribe may not intervene in any voluntary

child custody proceeding in a State court if the Indian
6

tribe gives written notice to the State court or any party

involved of—

‘‘(i) the intent of the Indian tribe not to intervene in

the proceeding; or

‘‘(ii) the determination by the Indian tribe that—

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

not eligible for membership in, the Indian tribe; or

‘‘(II) neither parent of the child is a member of

the Indian tribe.

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

a State court under this subsection, the Indian tribe shall

submit to the court, at the same time as the Indian tribe

files that motion, a certification that includes a statement

that documents, with respect to the Indian child involved,

the membership or eligibility for membership of that Indian child in the Indian tribe under applicable tribal law.

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

subsection (e) shall not—

‘‘(1) affect any placement preference or other right of

any individual under this Act;

‘‘(2) preclude the Indian tribe of the Indian child

that is the subject of an action taken by the Indian

tribe under subsection (e) from intervening in a proceeding concerning that Indian child if a proposed

adoptive placement of that Indian child is changed

after that action is taken; or

‘‘(3) except as specifically provided in subsection (e),

affect the applicability of this Act.

‘‘(g) Notwithstanding any other provision of law, no proceeding for a voluntary termination of parental rights or

adoption of an Indian child may be conducted under applicable State law before the date that is 30 days after the

Indian child’s tribe receives notice of that proceeding that

was provided in accordance with the requirements of subsections (c) and (d).

‘‘(h) Notwithstanding any other provision of law (including any State law)—

‘‘(1) a court may approve, as part of an adoption decree of an Indian child, an agreement that states that

a birth parent, an extended family member, or the Indian child’s tribe shall have an enforceable right of

visitation or continued contact with the Indian child

after the entry of a final decree of adoption; and

‘‘(2) the failure to comply with any provision of a

court order concerning the continued visitation or contact referred to in paragraph (1) shall not be considered to be grounds for setting aside a final decree of

adoption.’’.

SEC. 9. FRAUDULENT REPRESENTATION.

Title I of the Indian Child Welfare Act of 1978 is amended by adding at the end the following new section:
7

1 H. Rept. 95–1386, 2d Session, 1978, at page 9.

‘‘SEC. 114. FRAUDULENT REPRESENTATION.

‘‘(a) IN GENERAL.—With respect to any proceeding subject to this Act involving an Indian child or a child who

may be considered to be an Indian child for purposes of

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

shall, upon conviction, be subject to a criminal sanction

under subsection (b) if that person—

‘‘(1) knowingly and willfully falsifies, conceals, or

covers up by any trick, scheme, or device, a material

fact concerning whether, for purposes of this Act—

‘‘(A) a child is an Indian child; or

‘‘(B) a parent is an Indian; or

‘‘(2)(A) makes any false, fictitious, or fraudulent

statement, omission, or representation; or

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

document contains a false, fictitious, or fraudulent

statement or entry relating to a material fact described in paragraph (1).

‘‘(b) CRIMINAL SANCTIONS.—The criminal sanctions for a

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

‘‘(1) For an initial violation, a person shall be fined

in accordance with section 3571 of title 18, United

States Code, or imprisoned not more than 1 year, or

both.

‘‘(2) For any subsequent violation, a person shall be

fined in accordance with section 3571 of title 18, United States Code, or imprisoned not more than 5 years,

or both.’’.

PURPOSES

The purpose of S. 1962 is to amend the Indian Child Welfare Act

to make the process that applies to voluntary Indian child custody

and adoption proceedings more fair, consistent and certain, in order

to further advance the best interests of Indian children without

eroding tribal sovereignty and the fundamental principles of Federal-Indian law.

BACKGROUND

FEDERAL-INDIAN CHILD WELFARE POLICY

In 1978, the Congress enacted the Indian Child Welfare Act

(ICWA) in response to growing concerns about the consequences of

the decades-old practice of separating Indian children from their

Indian families and tribes through adoption or foster care placement. The 95th Congress expressed concern over the inordinately

high number of placements of Indian children into non-Indian

homes and environments, concluding that ‘‘[t]he wholesale separation of Indian children from their families is perhaps the most tragic aspect of American Indian life today.’’ 1 The 1977 Final Report

of the American Indian Policy Review Commission, established by

the Congress to study and provide recommendations on Federal-In-
8

2Final Report, May 17, 1977, American Indian Policy Review Commission, pages 422, 423.

3 H. Rept. 95–1386, 2d Session, 1978, at page 9.

4 Id.

5See, e.g., 25 U.S.C. 1912.

6Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49–53 (1989). 7 Id., at 49–50.

dian policy, shared this concern.2 Congressional oversight hearings

in 1974, 1977 and 1978 documented many examples of wholesale

removal of Indian children from their families and homes. Studies

conducted by the Association of American Indian Affairs prior to

enactment of the ICWA revealed that 25 to 35 percent of all Indian

children had been separated from their families and placed into

adoptive families, foster care, or other institutions.3 In certain

States, the problem of public and private agencies removing Indian

children from homes was more widespread. For example, in Minnesota from 1971 through 1972 nearly one in every four Indian infants under the age of one year old was placed for adoption. Over

this same period, the adoption rate of Indian children was five

times that of non-Indian children and approximately 90% of the

placements involving Indian children were with non-Indian families.4

Upon a review of the provisions of the ICWA and of its legislative

history, it is clear to the Committee that the 95th Congress sought

to address both the problems associated with the involuntary removals of Indian children from their families and tribal communities and placement of such children into both foster care and

adoptive settings, as well as the voluntary adoptions of Indian children.5 As the United States Supreme Court observed in Mississippi

Band of Choctaw Indians v. Holyfield, an Indian tribe and an Indian child have an interest in maintaining ties independent of the

interests of the birth parents and, thus, ‘‘Congress determined to

subject such [voluntary] placements to the ICWA’s jurisdiction and

other provisions, even in cases where the parents consented to an

adoption, because of concerns going beyond the wishes of individual

parents.’’ 6

The 95th Congress found that the extraordinarily high rate of involuntary and voluntary placements of Indian children with nonIndian families was not in the best interests of Indian tribes, Indian families and Indian children. As construed in the Holyfield

case, the ICWA is concerned with both the ‘‘impact on the tribes

themselves of the large numbers of children adopted by nonIndians*** [and] the detrimental impact on the children themselves of such placements outside their culture.’’ 7

Several witnesses in hearings before the Senate and House Committees held prior to enactment of the ICWA testified about the serious adjustment problems encountered by many adopted Indian

children as they reached adolescence in non-Indian homes. For example, the American Academy of Child Psychiatry testified that:

There is much clinical evidence to suggest that these

Native American children placed in off-reservation non-Indian homes are at risk in their later development. Often

enough they are cared for by devoted and well intentioned

foster or adoptive parents. Nonetheless, particularly in

adolescence, they are subject to ethnic confusion and a per-
9

8 Hearings on Indian Child Welfare before the Senate Subcommittee on Indian Affairs, 95th

Cong., 1st Session (1977) at 114. 9 Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the

House Committee on Interior and Insular Affairs, 95th Cong. 2d. Sess. (1978) at 193. 10 H. Rept. 95–1386, 2d. Sess., 1978 at pages 10, 20. 11 25 U.S.C. 1901(5).

vasive sense of abandonment with its attendant multiple

ramifications.8

The Congress also received compelling evidence prior to enactment of the ICWA concerning the impact of the large numbers of

placements upon Indian tribes. For example, Chief Calvin Isaac of

the Mississippi Band of Choctaw Indians testified that:

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the

transmission of the tribal heritage, are to be raised in nonIndian homes and denied exposure to the ways of their

People. Furthermore, these practices seriously undercut

the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal

sovereignty be respected than in an area as socially and

culturally determinative as family relationships.9

In addition, the 95th Congress received considerable testimony

on the importance of the extended family in Indian culture. As the

House Interior and Insular Affairs Committee explained in its report accompanying the bill:

[T]he dynamics of Indian extended families are largely

misunderstood. An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as

close, responsible members of the family. * * * The concept of the extended family maintains its vitality and

strength in the Indian community. By custom and tradition, if not necessity, members of the extended family have

definite responsibilities and duties in assisting in

childrearing.10

The 95th Congress determined that much of the responsibility for

the Indian child welfare crisis that was undermining Indian tribes

and families, and that was working against the best interests of Indian children, rested with the policies and practices of State agencies and courts. Congress found that—

the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and

judicial bodies, have often failed to recognize the essential

tribal relations of Indian people and the cultural and social

standards prevailing in Indian communities and families.11

This treatment of Indian children under State law persisted prior

to the enactment of the ICWA despite the existence of well-settled

principles of Federal law which generally established that the primary authority in matters involving the relationship of an Indian

child to his or her parents or extended family was the Indian

child’s tribe. Years after the enactment of the ICWA, the United

States Supreme Court in Holyfield recognized that ‘‘[t]ribal juris-
10

12Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. at 42. 13 Id. at 36. 14 25 U.S.C. 1911(d). 15 25 U.S.C. 1911(c). 16 25 U.S.C. 1912(a). 17 25 U.S.C. 1914. 18 25 U.S.C. 1915(c). 19 25 U.S.C. 1915(e). 20 25 U.S.C. 1919.

diction over Indian child custody proceedings is not a novelty of the

ICWA.’’ 12

Thus, in recognition of the best interests of Indian children and

the parens patriae interest of Indian tribes in the welfare of their

children, the Congress in 1978 carefully crafted the ICWA to protect the important role traditionally played by an Indian tribe and

the extended family in child welfare, with a focus upon State court

proceedings involving off-reservation Indian children, as well as

children resident and domiciled on an Indian reservation. As explained by the United States Supreme Court:

At the heart of the ICWA are its provisions concerning

jurisdiction over Indian child custody proceedings. Section

1911 lays out a dual jurisdictional scheme. Section 1911(a)

establishes exclusive jurisdiction in the tribal courts for

proceedings concerning an Indian child ‘‘who resides or is

domiciled within the reservation of such tribe,’’ as well as

for wards of tribal courts regardless of domicile. Section

1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not

domiciled on the reservation; on petition of either parent

or tribe, State-court proceedings for foster care placement

or termination of parental rights are to be transferred to

the tribal court, except in cases of ‘‘good cause,’’ objection

by either parent, or declination of jurisdiction by the tribal

court.13

APPLICATION OF THE PROCEDURAL REQUIREMENTS OF THE INDIAN

CHILD WELFARE ACT

Under the ICWA, State courts must accord tribal court judgments full faith and credit.14 The Act establishes various procedural safeguards applicable to State Indian child custody proceedings that protect Indian families and children and ensure adequate

tribal involvement in those proceedings. Thus, an Indian tribe may

intervene in any State court child custody proceedings involving

children who are members or eligible for membership in the Indian

tribe.15 An Indian tribe must receive notice of any State court involuntary proceedings involving such children 16 and has the right

to raise a challenge to State placements that do not conform to the

Act’s requirements.17 An Indian tribe may establish tribal placement preferences which are to be recognized by State courts as a

matter of Federal law.18 An Indian tribe has the right to obtain

State records pertaining to the placement of Indian children 19 and

is authorized to enter into agreements with States with regard to

the care and custody of Indian children and the jurisdiction over

child custody proceedings.20
11

21 25 U.S.C. 1912(e) and (f). 22 25 U.S.C. 1915(a) and (b). 23 25 U.S.C. 1915(d). 24 25 U.S.C. 1913(a). 25Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. at 50.

Indian families are protected by provisions which establish substantive standards for involuntary foster care placement of an Indian child or termination of an Indian parent’s parental rights,21

provisions which require that foster care and adoptive placements

of Indian children under State law be made preferentially with the

child’s extended family,22 and a requirement that the cultural and

social standards of the Indian community be applied by the State

court when it applies the placement preferences.23

In the context of voluntary proceedings, the ICWA specifically

prohibits relinquishment of an Indian child for adoption for at least

ten days after birth. Moreover, parental consents must be executed

before a court of competent jurisdiction. Any court considering a

voluntary consent to the termination of parental rights must determine that the consequences of the consent ‘‘were fully understood

by the parent or Indian custodian’’, including, if necessary, the use

of an interpreter to explain the consequences of the consent in the

parent’s native language.24

IMPLEMENTATION OF THE INDIAN CHILD WELFARE ACT

Although implementation of the ICWA has been less than perfect, resulting in some outcomes that appear from a distance to be

unreasonable, in the vast majority of cases the ICWA has provided

vital protection to Indian children, families and Indian tribes. The

ICWA has clarified and formalized the authority and role of Indian

tribes in the Indian child welfare process under Federal law. It has

compelled greater efforts and more painstaking analysis by State

and private agencies and State courts before removing Indian children from their homes and communities. It has provided procedural protections to Indian tribes and families to prevent arbitrary

removals of their children. It has required recognition by State and

private agencies and State courts alike that an Indian child has a

vital interest in retaining a connection with his or her Indian tribe.

As the United States Supreme Court noted in Holyfield, ‘‘[t]he Act

is based on the fundamental assumption that it is in the Indian

child’s best interest that its relationship to the tribe be protected.’’ 25

Each year thousands of child custody and adoption proceedings

take place in which the ICWA is applied without remarkable incident. Nonetheless, particularly in the voluntary adoption context,

there have been occasional, high-profile cases which have resulted

in lengthy, protracted litigation causing great anguish for the children, their adoptive families, their birth families, and their Indian

tribes.

DESCRIPTION OF THE ‘‘TULSA’’ COMPROMISE AGREEMENT

Origins of the Bill

S. 1962 is the product of the year-long efforts of several representatives of the adoption community and of Indian tribal governments who jointly developed compromise amendments to the
12

ICWA. Their effort was to identify changes that would address

some problems with the implementation of the ICWA that would

be acceptable to both adoption advocates and Indian tribes. The

Committee was briefed in late 1995 and early 1996 by representatives of those participating in the compromise negotiations and

these representatives were encouraged to circulate drafts to Indian

tribes and the adoption community for review. Both the National

Indian Child Welfare Association (NICWA) and the National Congress of American Indians (NCAI) were actively involved in these

efforts, as were representatives of the American Academy of Adoption Attorneys (AAAA) and the Academy of California Adoption Attorneys (ACAA). In early June, 1996, at the mid-year convention of

the NCAI at Tulsa, Oklahoma, tribal delegates labored at length

and in good faith to refine the compromise amendments. After the

convention, a tribally-sanctioned committee worked with adoption

attorneys to fine-tune the ‘‘Tulsa’’ compromise language. Representatives of both the Indian tribes and the adoption community have

confirmed that S. 1962 is within the parameters of, and is consistent with, the ‘‘Tulsa’’ compromise agreement.

S. 1962 would achieve greater certainty and speed through new

guarantees of early and effective notice in all cases involving Indian children combined with new, strict time restrictions placed on

both the right of Indian tribes and families to intervene and the

right of Indian birth parents to revoke their consent to an adoptive

placement. S. 1962 would encourage early identification of the relatively few cases involving controversy, and promote settlement of

cases by making visitation agreements enforceable.

Limitations on when and how an Indian tribe may intervene

25 U.S.C. 1911(c) and 1913(e) would be substantially amended to

curtail the present right of an Indian tribe to intervene ‘‘at any

point in the proceeding.’’ Under S. 1962, this right of intervention

could be exercised only within the following periods of time: within

30 days of receipt of notice of a termination of parental rights proceeding, or within the later of 90 days of receipt of notice of an

adoptive placement or 30 days of receipt of notice of a voluntary

adoption proceeding. With proper notice, an Indian tribe’s failure to

act within these time frames early in the placement proceedings is

final. An Indian tribe’s waiver of its right to intervene is binding.

If an Indian tribe seeks to intervene, it must accompany its motion

with a certification that the child at issue is, or is eligible to be,

a member of the tribe and provide documentation of this pursuant

to tribal law.

Limitations on when an Indian birth parent may withdraw his or

her consent to adoption or termination of parental rights

25 U.S.C. 1913(b) would be substantially amended by S. 1962 to

curtail the present right of an Indian birth parent to withdraw his

or her consent to an adoption placement or termination of parental

rights at any time prior to entry of a final decree. Under S. 1962

such consent could be withdrawn before a final decree of adoption

has been entered only if the adoptive placement specified by the

parent is terminated, or before the end of the latter of the following

two periods: 6 months after the Indian child’s tribe received the re-
13

quired notice or 30 days after the adoption proceeding began. An

Indian biological parent may otherwise revoke only under applicable State law. In the case of fraud or duress, an Indian birth parent

may seek to invalidate an adoption up to two years after the adoption has been in effect, or within a longer period established by the

applicable State law.

Requirement of early and effective notice and information to Indian

tribes

25 U.S.C. 1913 would be substantially amended by S. 1962 to

add a requirement for notice to be sent to the Indian child’s tribe

by a party seeking to place or to effect a voluntary termination of

parental rights concerning a child reasonably known to be an Indian. Such notice must be sent by registered mail within 100 days

following a foster care placement, within five days following a preadoptive or adoptive placement, and within 10 days of the commencement of a termination of parental rights proceeding or adoption proceeding. S. 1962 would specify the particular information

that is to be provided. In addition, 25 U.S.C. 1913(a) would be

amended by S. 1962 to require a certification by the State court

that the attorney or public or private agency facilitating the voluntary termination of parental rights or adoptive placement has informed the birth parents of their placement options and of other

provisions of the ICWA and has certified that the birth parents will

be notified within 10 days of any change in the adoptive placement.

Open adoption and enforceable visitation agreements encouraged between Indians and non-Indians

25 U.S.C. 1913 would be amended by S. 1962 to encourage and

facilitate voluntary agreements between Indian families or tribes

and non-Indian adoptive families for enforceable rights of visitation

or continued contact after entry of an adoption decree. This provision would have the effect of authorizing such agreements where

independent authority does not exist in the law of a particular

State. This should help encourage early identification and settlement of controversial cases.

Penalties applied for fraud and misrepresentation

S. 1962 would apply criminal penalties to any efforts to encourage or facilitate fraudulent representations or omissions regarding

whether a child or birth parent is an Indian for purposes of the

Act.

Miscellaneous

S. 1962 would clarify that the exclusive jurisdiction of tribal

courts under 25 U.S.C. 1911(a) continue once a child is properly

made a ward of that tribal court, regardless of any subsequent

change in residence or domicile of the child.

OTHER CONSIDERATIONS

On June 19, 1996, the committee struck the provisions of Title

III from H.R. 3286, the Adoption Promotion and Stability Act of

1996, by a vote of 14 to 1 and ordered it reported with the rec-
14

26S. Rept. 104–288, 2d. Sess., 1996. 27See, e.g., Morton v. Mancari, 417 U.S. 535 (1974). 28Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978).

ommendation that the Senate pass the bill without the provisions

of Title III.26

Title III would have undone much of the progress achieved by

the ICWA. The Committee struck Title III from H.R. 3286 because

it had great potential for harm to Indian children, to Indian families, and to fundamental principles of Federal-tribal relations and

tribal sovereignty. At the very least, Title III would have caused an

explosion of litigation and disrupted tribal and State child welfare

systems, thereby delaying many permanent placements to the detriment of Indian children.

At the core of Title III was a provision that would have codified

in Federal statutory law a version of the so-called ‘‘existing Indian

family exception’’ doctrine that has been created and applied in certain States by judges seeking to find that the ICWA does not apply

to a particular case. In striking Title III, the Committee made clear

its view that the ‘‘existing Indian family exception’’ doctrine is completely contrary to the entire purpose of the ICWA. In contrast, the

ICWA recognizes that the Federal trust responsibility and the role

of Indian tribes as parens patriae extend to all Indian children involved in all child custody proceedings. The constitutional legitimacy of Indian-specific legislation has long rested upon the basis

of a political classification which is unique to Indians and not upon

a racial classification.27 It is a well settled principle in Federal-Indian law that Indian tribes have the authority to define their membership and that this authority is integral to the survival of tribes

and the exercise of their sovereignty as tribal governments. The approach taken by the Title III provisions contradicts that fundamental principle. As the United States Supreme Court has explained:

A tribe’s right to define its own membership for tribal

purposes has long been recognized as central to its existence as an independent political community. Given the

often vast gulf between tribal traditions and those with

which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would

intrude on these delicate matters. (citations omitted) 28

When the ICWA was enacted, it is clear from the statute and

from the legislative history that the Congress intended to reaffirm

these principles and to provide for tribal involvement with, and

Federal protections for, all children defined by their tribes as members or eligible for membership who are involved in any child custody proceeding, regardless of their individual circumstances. Moreover, this Committee’s rejection of Title III and its adoption of S.

1962 is continuing evidence that the ICWA, as amended, is to be

applied to all Indian children in all child custody proceedings regardless of their individual circumstances. Likewise, this Committee’s rejection of Title III and its adoption of S. 1962 should be construed as a rejection of ‘‘existing Indian family exception’’ doctrine

in all of its manifestations.
15

SUMMARY OF THE PROVISIONS OF S. 1962, THE INDIAN CHILD WELFARE

ACT AMENDMENT OF 1996

Ward of the court

Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify that an

Indian tribe retains exclusive jurisdiction over any child made a

ward of a tribal court if the child subsequently changes residence

and domicile. The Committee intends this amendment to clarify

that exclusive jurisdiction over a ward of a tribal court occurs only

if, at the time the wardship is established, the child is a resident

of or domiciled on an Indian reservation or the proceeding has been

transferred to the tribal court pursuant to a valid State court

transfer or jurisdiction.

Tribal interventions in State court proceedings

Sections 3 and 8 provide new limitations on the right of an Indian tribe to intervene in State court proceedings involving Indian

Children. Section 3 makes a conforming, technical amendment

which recognizes that tribal interventions in voluntary proceedings

under 25 U.S.C. 1911(c) will hereafter be governed by the time limitations and other provisions set forth in Section 8 of these amendments. The Committee intends Section 8 to limit the tribal right

to intervene in adoption proceedings by requiring the Indian tribe

to either file a notice of intent to intervene or send a written objection to a proposed adoption to the party or the State court within

90 days of receiving notice of an adoptive placement or 30 days

after receiving notice of a voluntary adoption proceeding, whichever

is later, or the tribe’s right to intervene will be deemed waived. In

the case of voluntary termination proceedings, as distinguished

from adoption proceedings, the Indian tribe must take action within 30 days of having received the requisite notice. The tribal right

to intervene may also be waived if the Indian tribe gives written

notice of its intent not to intervene or gives written notice that neither birth parent is a member of the tribe or gives written notice

that the child is not a member of, and is not eligible for membership in, the Indian tribe.

Under Section 8, an Indian tribe must simply make known its intent to intervene or, in writing, its objection to the termination of

parental rights or the adoptive placement. The Committee intends

that where an Indian tribe sends notice or written objection to the

party seeking the adoption, but not to the court, the party receiving

such notice shall notify the court that the tribe has preserved its

right of intervention. This is likely to occur in cases where a placement has been made before a court proceeding has begun. The

Committee has designed these provisions to give prospective adoptive parents confidence that they can go forward with an adoption

after a specified time period without later action by an Indian tribe

which may disrupt the adoption. Furthermore, the Committee intends that these provisions will provide an Indian tribe with a reasonable time period within which to become involved in the placement of a child if the tribe believes this would be in the best interest of the Indian child.

Section 8 also provides that if an adoptive placement specified in

the notice to the Indian tribe is changed at a later date, the tribal
16

29See, e.g., E.A. v. State, 623 P.2d 1210 (Alaska Sup. Ct. 1981).

right to intervene is restored even if the time periods have lapsed.

Such a change likely would be extremely rare, but in these cases

the Indian tribe’s involvement in the subsequent placement is just

as important for the best interests of the child as was its involvement in the first placement. An Indian tribe must receive notice of

each adoptive, preadoptive or foster care family placement within

five days of when the placement is made. This legislation will ensure that Indian tribes will receive effective notice if an adoptive

placement has ended. Finally, if an Indian tribe does not receive

notice which complies with section 7 of these amendments, the

Committee intends that the Indian tribe will retain a right to intervene at any point in the voluntary proceeding. The Committee recognizes that there may be circumstances when a child’s Indian

identity is discovered after the expiration of the time frames for notice and tribal response, despite the fact that the facilitators of an

adoption made a reasonable inquiry concerning the Indian identity

of a child on or before the beginning of a placement. In those circumstances, it is the Committee’s intention that notice be provided

within 10 days of the discovery of a child’s Indian identity and that

thereafter, the time frames for tribal intervention outlined in section 8 will apply. If, however there is evidence that a reasonable

inquiry was not made concerning the Indian identity of a child on

or before the beginning of a placement, the time limitations set

forth in section 8 on tribal intervention shall not apply.

The Committee intends that a waiver by an Indian tribe under

section 8 does not otherwise affect the applicability of the Act to

the Indian child and family, including application of the placement

preferences, and does not prevent any other person from asserting

any rights under the Act. The Committee intends that the rights

of the Indian child’s extended family or others to intervene, or otherwise be involved, are to be left to existing laws and court rules

on standing and are not to be altered in any way by this legislation. 29

The Committee intends section 8 to also require that an Indian

tribe must include with any motion to intervene in a voluntary proceeding, a certification that includes a statement that documents

the membership or eligibility for membership of the Indian child.

In recognition of long-standing and fundamental principles of Federal Indian law, this section recognizes that tribal determinations

of membership under tribal law are conclusive for the purpose of

determining whether a child is an Indian child subject to the ICWA

and that the ICWA is applicable to all Indian children who are the

subject of a voluntary placement or proceeding. By adding this requirement, it is the Committee’s intent to provide assurances to

other parties involved with Indian children that Indian tribes will

follow a specified set of rules based upon their own membership requirements which they have established under tribal law. Under

the new subsection (e)(3), the Committee intends this certification

to be filed no later than when the motion to intervene is filed. It

need not necessarily be filed when the Indian tribe files its written

objection or notice of intent to intervene. The term ‘‘motion’’ is not

meant, however, to suggest any particular procedure for interven-
17

tion. The Committee is aware that in many State courts, informal

tribal intervention has been permitted through letter, appearance

of a tribal social worker or otherwise. The Committee does not intend in any way to discourage such informal procedures. Rather

the language of this subsection is simply meant to make clear that

the certification requirement attaches at the actual time of intervention.

Finally, section 8 would allow State courts to enter enforceable

orders providing for visitation or continued contact between Indian

tribes, birth parents, extended Indian family members, and an

adopted child. These orders would arise only in the context of a voluntary agreement entered into with the adoptive family. The Committee anticipates that the possibility of open adoption, as an option in all proceedings, may facilitate harmonious placements of Indian children and avoid conflict in some otherwise contentious situations. In a number of States, courts currently have no authority

to recognize and enforce open adoption arrangements even where

the parties have reached an agreement. It is the Committee’s intention that this section authorize State courts to make enforceable

any type of post-adoption arrangement or specific conditions that

may be agreed to by the parties to a voluntary adoptive proceeding.

Voluntary termination of parental rights

Section 4 clarifies that the existing provisions of the ICWA which

deal with the validation of parental consent before a judge at least

10 days after birth applies to all adoptive, preadoptive and foster

care placements. In addition, the Committee intends section 4 to

require a judge to certify that the birth parents have been informed

of their placement options and of their rights under the ICWA. Finally, the judge must confirm that the adoption agency or attorney

which facilitates an adoption has certified that the birth parents

will be notified within ten days if an adoptive placement changes.

The Committee intends that the additional information required

by section 4 will increase the opportunity for birth parents to fully

consider their placement options at the very beginning of the process and more fully understand their right to revoke consent, the

limitations placed upon that right to revoke, the potential role of

the Indian tribe, and the application of the placement preference

provisions in the Act. Full information to birth parents, combined

with notice to the Indian child’s tribe, should help ensure that a

young, vulnerable Indian parent has the balanced information

available which any person needs to make an informed decision.

For example, when only an adoption attorney or agency is involved

with a young parent considering adoption, there is a substantial

possibility that extended family options will not be explored. The

requirement in this section is designed to ensure that all birth parents of Indian children who are involved in a voluntary child custody proceeding understand the multiple options available to them

and that they are not presented with only one placement option.

Providing parents with full information at the outset of the process

should help lessen the number of disputes which can arise later on

in the process because parents were unclear about their available

options when they placed the child for adoption.
18

Finally, the requirement in section 4 that the person or agency

facilitating the adoption notify a birth parent when the adoptive

placement ends is meant to ensure that the parent will be able to

exercise his or her right to revoke consent which is guaranteed

under these amendments in any circumstance where an adoptive

placement is terminated. In addition, the Committee intends that

an Indian custodian vested with legal authority to consent to an

adoptive placement be treated as a birth parent for the purposes

of the Act, including the requirements governing notice provided or

received and consent given or revoked.

Withdrawal of parental consent

The Committee intends section 5 to clarify when a birth parent

can revoke consent to an adoption or voluntary termination of parental rights before a final decree of adoption has been entered by

a court. The revocation period is limited to six months after the Indian child’s tribe receives notice of the adoptive placement of the

child, which notice must be received within five days of the actual

placement. The revocation period is longer if the birth parent has

not received notice of the actual commencement of the legal proceeding to finalize the adoption at least 30 days before the end of

that six month period. If the parent has not received such notice,

the period for revocation is extended until 30 days after receipt of

notice by the parent. The parental right to revoke is also extended

if the child’s adoptive placement is changed from that which was

proposed at the time of the parent’s consent. It should be noted

that section 5 does not alter the provisions of existing law which

terminate, as of the date of the final adoption decree, the parental

right to revoke consent if that adoption decree is finalized prior to

the end of the six month period. The only exception to this limitation occurs when a birth parent can later show to the court that

his or her consent was obtained through fraud or duress, but such

a claim may be brought no later than two years after the final decree of adoption is entered. Finally, the Committee intends the

time limits on parental withdrawal of consent to bring consistency

and certainty to the adoption process. Prospective adoptive parents

will know the time frames during which parental consent can be

revoked and need not fear disruption of the adoption at some unknown point in the future.

Notice to Indian tribes

Section 6 requires notice to an Indian tribe of all voluntary adoptive and preadoptive placements, all voluntary termination of parental rights proceedings, all voluntary adoption proceedings and

all voluntary foster care placements that exceed 100 days which involve a child defined under current law as an Indian child for purposes of the Act (any child who is a member of an Indian tribe or

who may be eligible for membership and is a child of a member of

an Indian tribe). Notice would be required within 5 days of an

adoptive or pre-adoptive placement and may be made earlier, even

prior to birth, if an adoptive or preadoptive placement is contemplated. The Committee intends the language of the bill to permit a single notice to be sent covering multiple activities—for example, if an adoptive placement is made and an adoption proceed-
19

ing is commenced simultaneously, the Committee intends that a

single notice could be written and provided in such a way as to

meet the obligations of section 6 so long as such notice meets the

requirements of section 7. The Committee intends that a notice will

be sent within the specified time frames each time one of the specified placements or proceedings commences. If it is discovered that

a child may be an Indian child after the applicable notice periods

have run, notice under section 6 must be provided within 10 days

of the discovery that the child may be an Indian. If after a placement the child’s Indian identity is uncovered and the notice is provided within 10 days of the discovery, there are no time limitations

placed upon tribal intervention following such a late notice unless

the party serving the notice can show to the court that reasonable

inquiry regarding whether the child may be an Indian had been

made at or prior to placement of the child. With these provisions

dealing with a belated discovery that the child may be an Indian

and that the adoption is thus made subject to the requirements of

the ICWA, the Committee intends to provide prospective adoptive

parents with some protection from late intervention if they can

show they made a reasonable inquiry at or before the time the

placement began as to whether the child may be an Indian. Likewise, the Committee intends these provisions to provide an Indian

tribe with prompt notice of the adoption placement and proceeding

and some opportunity to intervene within the time limitations applicable under section 8.

The Committee has received ample testimony indicating that, because the ICWA does not include a specific notice requirement to

Indian tribes in the case of voluntary adoptions, Indian tribes frequently do not learn of the adoptive placements until months and

sometimes years after the placement has begun. Particularly in the

case of an off-reservation birth to an unwed mother—which is frequently the circumstance in a substantial portion of these cases—

there may be a significant delay in such information becoming

known within the tribal community. Thus, even where an Indian

tribe acts promptly upon obtaining the information, a situation

may have developed where the Indian child has already spent a

significant amount of time in that placement before the Indian

tribe has any knowledge with which it could act to become involved

in the case in the State court, whether through intervention in the

proceeding, submitting a request for future contact or visitation, or

other involvement. The Committee expects that, under the requirements of the bill, providing Indian tribes with prompt notice in all

cases will greatly enhance the possibility that a prospective adoptive parent will know before the initial placement begins, or within

a very short time thereafter, whether a member of the Indian

child’s family or tribe has an interest in adopting the child. The

Committee intends the notice required under section 6 to help to

ensure that the best interests of Indian children are served by the

provision of good and loving families while at the same time ensuring that those best interests of the children are not undermined by

children being removed from their families and tribes in cases

where good and loving placements are available within their families or tribal communities.
20

30See, e.g., Wash. Rev. Code Ann. 13.34.245(3), (5); 26.33.090(2); 26.33.110(2); 26.33.240(1)

(West Supp. 1989); Minn. Stat. Ann. 257.352(2), (3); 257.353(2), (3) (West Supp. 1989); Okla.

10 O.S. 1991, section 40.1 (as amended in 1994); Mich. Court Rules 5.980(A).

Moreover, the Committee wishes to emphasize that an Indian

tribe has a parens patriae relationship with all children who are

members of the tribe or who are eligible for tribal membership and

who are children of tribal members. Off-reservation children and

parents, some of whom may be in a precarious or unstable living

situation and alienated from their tribal community, are a uniquely

vulnerable segment of the American Indian and Alaska Native population and the ICWA specifically recognizes the tribal interest in

such individuals and the benefit to these Indian families of tribal

involvement. Thus, the Committee has concluded that the best interests of Indian children and families are served by early and full

notice to Indian tribes under the provisions of section 6. Although

Indian tribes do not currently receive notice of voluntary proceedings in most States, several States have explicitly recognized and

successfully implemented a requirement that similar notice be provided in voluntary proceedings.30

Content of notice to Indian tribes

Section 7 requires that the notice provided to Indian tribes must

include the name of the Indian child involved and the actual or anticipated date and place of birth of the child, along with an identification, if known after reasonable inquiry, of the Indian parent,

grandparent, and extended family members of the Indian child.

The notice must also provide information about court proceedings

pending in State court, if any, and the parties in such proceedings.

The notice must inform the Indian tribe that it has the right to intervene in the court proceeding and must inform the tribe as to

what actions or inactions by the tribe will lead to a waiver of the

tribal right to intervene.

Sanctions against fraudulent representation

Section 9 provides for criminal sanctions to be applied to anyone

who assists a person to lie about their Indian ancestry or the ancestry of a child for the purposes of avoiding the application of the

ICWA. The Committee intends that these sanctions will apply to

any individual, other than a birth parent, who encourages or facilitates fraudulent representations concerning whether or not a child

or parent is an Indian for the purposes of the ICWA, who conspires

to encourage or facilitate such representations or omissions, or who

aids or abets such representations or omissions having reason to

know that such representations are being made and may have a

material impact upon the application of the ICWA. Criminal penalties are necessary to help assure compliance with the provisions

of the ICWA which are triggered whenever an Indian child is involved in a child custody proceeding. Willful misrepresentations of

Indian identity can serve to thwart the application of the Act and

the intent of the Congress. The criminal sanctions will discourage

attorneys and others from circumventing the ICWA. There is considerable anecdotal evidence that birth parents are often told by

adoption attorneys and agencies that they should not reveal that

the child may be an Indian child in order to avoid the application
21

31 In re Bridget R., 41 Cal. App. 4th 1483 (2nd Dist. 1996).

of the ICWA. Indeed, in the In re Bridget R case,31 which helped

give rise to legislation to amend the Indian Child Welfare Act in

this Congress, there were allegations that the original adoption attorney involved facilitated the very kind of deception that the

criminal sanctions in section 9 are intended to deter. The Committee received testimony which indicates that the birth father of the

children in that case apparently indicated that he was Indian on

the original adoption information sheet, was then informed by an

attorney that this would delay the adoption, and then filled out a

new form omitting the information about his Indian identity which

was then used by this attorney for the purposes of the adoption

even though the attorney knew that this information was not true.

The Committee intends to bring to bear against such behavior the

sanctions of criminal law.

CONCLUSIONS

The ICWA was originally enacted to provide for procedural and

substantive protection for Indian children and families and to recognize and formalize a substantial role for Indian tribes in cases

involving involuntary and voluntary child custody proceedings,

whether on or off the Indian reservation. The bill approved by this

Committee is entirely consistent with, and in furtherance of, these

same goals which continue to be of vital important to the wellbeing of Indian children, Indian families, and Indian tribes. The

Committee has concluded that S. 1962, as a compromise, will greatly improve the procedures required under the ICWA in cases of voluntary child custody and adoption proceedings. While these voluntary cases are but a small fraction of the cases in which the Act

has been applied, they have been the ones which have gained much

of the public scrutiny the ICWA has experienced in recent years.

In adopting S. 1962, the Committee is taking a measured and limited approach, actively crafted by representatives of both the tribal

governments and the adoption community, to address what have

become identified as the problems with how the ICWA functions in

the context of voluntary adoptions.

LEGISLATIVE HISTORY

On June 26, 1996, the Committee held a hearing on a draft discussion bill which served as the basis of S. 1962. S. 1962 was introduced on July 16, 1996 and referred to the Committee on Indian

Affairs. On July 24, 1996, the Committee on Indian Affairs, by a

vote of 13 for, 0 against, and 1 abstention, ordered the bill reported

with the recommendation that the Senate pass the bill as reported.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business session on June 24, 1996, the Committee on

Indian Affairs, by a vote of 13 ayes, 0 nays, and 1 abstention, ordered the bill reported with the recommendation that the Senate

pass the bill as reported.
22

SECTION-BY-SECTION ANALYSIS

Section 1. Short title; references

Section 1 cites the short title of the bill as the ‘‘Indian Child Welfare Act Amendments of 1996’’ and clarifies that references in the

bill to amendment or repeal relate to the Indian Child Welfare Act

of 1978 (25 U.S.C. 1901 et seq.).

Section 2. Exclusive jurisdiction

Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify that an

Indian tribe retains exclusive jurisdiction over any child otherwise

made a ward of the tribal court when the child subsequently

changes residence or domicile for treatment or other purposes.

Section 3. Intervention in State court proceedings

Section 3 makes a conforming technical amendment conditioning

an Indian tribe’s existing right of intervention under 25 U.S.C.

1911(c) to the time limitations added by Section 8 of the bill.

Section 4. Voluntary termination of parental rights

Section 4 amends 25 U.S.C. 1913(a) to clarify that the Act applies to voluntary consents in adoptive, preadoptive and foster care

placements. In addition, section 4 adds a requirement that the presiding judge certify that any attorney or public or private agency

facilitating the voluntary termination of parental rights or adoptive

placement has informed the birth parents of the placement options

available and of the applicable provisions of the Indian Child Welfare Act, and has certified that the birth parents will be notified

within 10 days of any change in the adoptive placement. An Indian

custodian vested with legal authority to consent to an adoptive

placement is to be treated as a parent for purposes of these amendments, including the requirements governing notice provided or received and consent given or revoked.

Section 5. Withdrawal of consent

Section 5 amends the Act by adding several new paragraphs to

25 U.S.C. 1913(b). The additional paragraphs would set limits on

when an Indian birth parent may withdraw his or her consent to

an adoption. Paragraph (2) would permit revocation of parental

consent in only two instances before a final decree of adoption is

entered except as provided in paragraph (4). First, a birth parent

could revoke his or her consent if the original placement specified

by the birth parent terminates before a final decree of adoption has

been entered. Second, a birth parent could revoke his or her consent if the revocation is made before the end of a 30 day period

that begins on the day that parent received notice of the commencement of the adoption proceeding or before the end of a 180

day period that begins on the day the Indian tribe has received notice of the adoptive placement, whichever period ends first. Paragraph (3) provides that upon the effective revocation of consent by

a birth parent under the terms of paragraph (2), the child shall be

returned to that birth parent. Paragraph (4) requires that if a birth

parent has not revoked his or her consent within the time frames

set forth in paragraph (2), thereafter he or she may revoke consent
23

only pursuant to applicable State law or upon a finding by a court

of competent jurisdiction that the consent was obtained through

fraud or duress. Paragraph (5) provides that upon the effective revocation of consent by a birth parent under the terms of paragraph

(4)(B), the child shall be returned to that birth parent and the decree vacated. Paragraph (6) provides that no adoption that has

been in effect for a period of longer than or equal to two years can

be invalidated under any of the conditions set forth in this section,

including those related to a finding of duress or fraud.

Section 6. Notice to Indian tribes

Section 6 requires notice to be provided to the Indian tribe by

any person seeking to secure the voluntary placement of an Indian

child or the voluntary termination of the parental rights of a parent of an Indian child. The notice must be provided no later than

100 days after a foster care placement occurs, no later than five

days after a preadoptive or adoptive placement occurs, no later

than ten days after the commencement of a proceeding for the termination of parental rights, and no later than ten days after the

commencement of an adoption proceeding. Notice may be given

prior to the birth of an Indian child if a particular placement is

contemplated. If an Indian birth parent is discovered after the applicable notice periods have otherwise expired, despite a reasonable

inquiry having been made on or before the commencement of the

placement about whether the child may be an Indian child, the

time limitations placed by section 8 upon the rights of an Indian

tribe to intervene apply only if the party discovering the Indian

birth parent provides notice to the Indian tribe under this section

not later than ten days after making the discovery.

Section 7. Content of notice

Section 7 requires that the notice provided under section 6 include the name of the Indian child involved and the actual or anticipated date and place of birth of the child, along with an identification, if known after reasonable inquiry, of the Indian parent,

grandparent, and extended family members of the Indian child.

The notice must also provide information on the parties and court

proceedings pending in State court. The notice must inform the

identified Indian tribe that it may have the right to intervene in

the court proceeding, and must inquire whether the Indian tribe intends to intervene or waive its rights to intervene. Finally, the notice must state that if the Indian tribe fails to respond by the statutory deadline, the right of that Indian tribe to intervene will be

considered to have been waived.

Section 8. Intervention by Indian tribe

Section 8 adds four new subsections to 25 U.S.C. 1913, which

would limit the right of an Indian tribe to intervene in a court proceeding involving foster care placement, voluntary adoption, or termination of parental rights and which would authorize voluntary

agreements for enforceable rights of visitation.

Under subsection (e), an Indian tribe could intervene in a voluntary proceeding to terminate parental rights only if it has filed

a notice of intent to intervene or a written objection not later than
24

30 days after receiving the notice required by sections 6 and 7. An

Indian tribe could intervene in a voluntary adoption proceeding

only if it has filed a notice of intent to intervene or a written objection not later than the later of 90 days after receiving notice of the

adoptive placement or 30 days after receiving notice of the adoption

proceeding pursuant to sections 6 and 7. If these notice requirements are not complied with, the Indian tribe could intervene at

any time. However, an Indian tribe may no longer intervene in a

proceeding after it has provided written notice to a State court of

its intention not to intervene or of its determination that neither

the child nor any birth parent is a member of that Indian tribe. Finally, subsection (e) would require that an Indian tribe accompany

a motion for intervention with a certification that documents the

tribal membership or eligibility for membership of the Indian child

under applicable tribal law.

Subsection (f) would clarify that the act or failure to act of an Indian tribe to intervene or not intervene under subsection (e) shall

not affect any placement preferences or other rights accorded to individuals under the Act, nor may this preclude an Indian tribe

from intervening in a case in which a proposed adoptive placement

is changed.

Subsection (g) would prohibit any court proceeding involving the

voluntary termination of parental rights or adoption of an Indian

child from being conducted before the date that is 30 days after the

Indian tribe has received notice under sections 6 and 7.

Subsection (h) would authorize courts to approve, as part of the

adoption decree of an Indian child, a voluntary agreement made by

an adoptive family that a birth parent, a member of the extended

family, or the Indian tribe will have an enforceable right of visitation or continued contact after entry of the adoption decree. However, failure to comply with the terms of such agreement may not

be considered grounds for setting aside the adoption decree.

Section 9. Fraudulent representation

Section 9 would add a new section 114 to the Indian Child Welfare Act that would apply criminal sanctions to any person other

than a birth parent who—(1) knowingly and willfully falsifies, conceals, or covers up a material fact concerning whether, for purposes

of the Act, a child is an Indian child or a parent is an Indian; or

(2) makes any false or fraudulent statement, omission, or representation, or falsifies a written document knowing that the document

contains a false or fraudulent statement or entry relating to a material fact described in (1). Upon conviction of an initial violation,

a person shall be subjected to the fine prescribed in 18 U.S.C. 3571

for a Class A misdemeanor (not more than $100,000), imprisonment for not more than 1 year, or both. Upon conviction of any subsequent violation, a person shall be subjected to the fine prescribed

in 18 U.S.C. 3751 for a felony (not more than $250,000), imprisonment for not more than 5 years, or both.

COST AND BUDGETARY CONSIDERATIONS

The cost estimate for S. 1962, as calculated by the Congressional

Budget Office, is set forth below:
25

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 25, 1996.

Hon. JOHN MCCAIN,

Chairman, Committee on Indian Affairs,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed S. 1962, the Indian Child Welfare Act Amendments of 1996,

as ordered reported by the Senate Committee on Indian Affairs on

July 24, 1996.

S. 1962 would amend the Indian Child Welfare Act, including

provisions relating to the voluntary termination of parental rights

of Indian parents in adoption and foster care cases. CBO estimates

that this bill would have no federal budgetary effects. Since enactment of S. 1962 would not affect direct spending or receipts, payas-you-go procedures would not apply to the bill.

Section 4 of the Unfunded Mandates Reform Act of 1995 excludes

from the application of that act legislative provisions that enforce

the constitutional rights of individuals. CBO has determined that

this bill fits within that exclusion because it enforces the due-process rights of parties involved in the adoption of a Native American

child.

If you wish further details on this estimate, we will be pleased

to provide them.

Sincerely,

JUNE E. O’NEILL, Director.

Enclosure.

REGULATORY IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying

out the bill. The Committee has concluded that enactment of S.

1962 will create only de minimis regulatory or paperwork impacts.

EXECUTIVE COMMUNICATIONS

The Committee has received a letter in support for S. 1962 from

the Department of Justice on July 23, 1996 and a letter of support

for S. 1962 from the Department of the Interior on July 24, 1996,

which letters are set forth below:

U.S. DEPARTMENT OF JUSTICE, OFFICE OF LEGISLATIVE AFFAIRS, Washington, DC, July 23, 1996.

Hon. JOHN MCCAIN,

Chairman, Committee on Indian Affairs,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: Thank you for the opportunity to provide

the Department of Justice’s views on S. 1962, The Indian Child

Welfare Act Amendments of 1996.

The Department of Justice has only a limited role in the litigation of Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq.
26

(‘‘ICWA’’) cases, so our knowledge of how, and how well, ICWA

works is premised largely on the reports of the Departments of

Health and Human Services and the Interior. They report that the

ICWA has generally worked well, especially when parties are informed about ICWA and it is applied in a timely manner. Consistent with our institutional role, we have reviewed S. 1962 based on

our experience with civil and criminal enforcement, the United

States’ commitment to supporting tribal sovereignty, and basic

principles of statutory construction. We hope the following comments will assist the Committee in considering the bill.

The Department supports S. 1962 and the important goals of

ICWA to promote the best interests of Indian children and the stability and security of Indian tribes and families. We support the

bill because it would clarify ICWA, establish some deadlines to provide certainty and reduce delay in adoption proceedings, and

strengthen Federal enforcement tools to ensure compliance with

ICWA. We understand that S. 1962 is, to a large extent, based on

the carefully crafted compromise agreement between Indian tribes

and adoption attorneys.

Regarding the provision in Section 4, ‘‘Voluntary Termination of

Parental Rights,’’ which would require courts to certify that attorneys who facilitate adoptive placements have advised the natural

parents of an Indian child concerning the scope of ICWA, see Sec.

4(B), the Department has reservations about this provision to the

extent that it might be construed to limit an attorney’s ability to

discuss the feasibility of various options with his or her client.

Otherwise, the Department believes S. 1962 represents a sound

approach to amending ICWA to address the concerns of its critics

without compromising tribal self-government or the best interests

of Indian children.

If we may be of additional assistance, please do not hesitate to

call upon us. The Office of Management and Budget has advised

that there is no objection to the submission of this letter from the

standpoint of the Administration’s program.

Sincerely,

ANNETT HARKINS

(For Andrew Fois, Assistant Attorney General).

U.S. DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

Washington, DC, July 24, 1996.

Hon. JOHN MCCAIN, Chairman, Committee on Indian Affairs,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: We understand that your Committee will

consider S. 1962, the ‘‘Indian Child Welfare Act (ICWA) Amendments of 1996’’ on July 24, 1996. We support the enactment of S.

1962, and commend the collaborative efforts of Indian tribes and

organizations, adoption attorneys and congressional staff on this

legislation, designed to address problems related to the adoption of

Indian children.

S. 1962 provides further procedural requirements for individuals,

agencies, or tribes involved in the voluntary adoption process and
27

clarifies their respective responsibilities. It also facilitates compliance with the requirements of the ICWA.

We would recommend that S. 1962 be narrowed in one respect.

Section 6 of S. 1962 amends section 103(c)(1) of ICWA to require

that the tribe be given notice of the voluntary foster care or adoptive placement of an Indian child. While we have no disagreement

with this amendment as it relates to adoptive placements, we question its advisability in connection with foster care placements.

Under current law, these placements are not covered by ICWA if

the parent retains the right to have the child returned upon demand. The parent is thus able to use temporary foster care placements as a respite while seeking to resolve the problems that made

the placement necessary. We recommend that the Committee leave

current law unchanged with respect to foster care, in order to support Indian parents’ exercise of responsibility in resolving their

own problems and of control over the care of their children.

S. 1962 is a preferable alternative to Title III of H.R. 3286. It

protects the sovereign status of Indian tribes and preserves the intent of the ICWA.

The Office of Management and Budget has advised that it has

no objection to the submission of this letter from the standpoint of

the Administration’s program. If we can be of additional assistance

please feel free to call upon us.

Sincerely,

ADA E. DEER,

Assistant Secretary—Indian Affairs.

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing

Rules of the Senate, the Committee states that the enactment of

S. 1962 will result in the following changes in 25 U.S.C. § 1901 et

seq., with existing language which is to be deleted in black brackets and the new language to be added in italic:

25 U.S.C. 1911(a)

§ 1911. Indian tribe jurisdiction over Indian child custody

proceedings

(a)(1) Exclusive jurisdiction—

An Indian tribe shall have jurisdiction exclusive as to any State

over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except

where such jurisdiction is otherwise vested in the State by existing

Federal law. øWhere an Indian child is a ward of a tribal court,

the Indian tribe shall retain exclusive jurisdiction, notwithstanding

the residence of domicile of the child.¿

(2) An Indian tribe shall retain exclusive jurisdiction over any

child custody proceeding that involves an Indian child, notwithstanding any subsequent change in the residence or domicile of the

Indian child, in any case in which the Indian child—

(A) resides or is domiciled within the reservation of the Indian tribe and is made a ward of a tribal court of that Indian

tribe; or
28

(B) after a transfer of jurisdiction is carried out under subsection (b), becomes a ward of a tribal court of that Indian

tribe.

* * * * * * *

25 U.S.C. 1911(c)

(c) State court proceedings; intervention—

øIn any State court proceeding¿ Except as provided in section

103(e), in any State court proceeding for the foster care placement

of, or termination of parental rights to, an Indian child, the Indian

custodian of the child and the Indian child’s tribe shall have a right

to intervene at any point in the proceeding.

* * * * * * *

25 U.S.C. 1913(a)

§ 1913. Parental rights, voluntary termination

(a) Consent; record; certification matters; invalid consents—

(1) Where any parent of Indian custodian voluntarily consents to a øFoster care placement¿ foster care of preadoptive or

adoptive placement or to termination of parental rights, such

consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and

accompanied by the presiding øjudge’s certificate that the

terms¿ judge’s certificate that—

(A) the terms and consequences of the consent were fully

explained in detail and were fully understood by the parent øor Indian custodian.¿ or Indian custodian; and

(B) any attorney or public or private agency that facilitates the voluntary termination of parental rights or

preadoptive or adoptive placement has informed the natural parents of the placement options with respect to the

child involved has informed those parents of the applicable

provisions of the Act, and has certified that the natural

parents will be notified within 10 days of any change in the

adoptive placement.

øThe court shall also certify¿

(2) The court shall also certify that either the parent of Indian custodian fully understood the explanation in English or

that it was interpreted into a language that the parent or Indian custodian understood.

øAny consent given prior to,¿

(3) Any consent given prior to, or within ten days after, birth

of the Indian child shall not be valid.

(4) An Indian custodian who has the legal authority to consent to an adoptive placement shall be treated as a parent for

the purposes of the notice and consent to adoption provisions of

this Act.

* * * * * * *

25 U.S.C. 1913(b)

(b) Foster care placement; withdrawal of consent—
29

(1) Any parent or Indian custodian may withdraw consent to

a foster care placement under State law at any time and, upon

such withdrawal, the child shall be returned to the parent or

Indian custodian.

(2) Except as provided in paragraph (4), a consent to adoption of an Indian child or voluntary termination of parental

rights to an Indian child may be revoked, only if—

(A) no final decree of adoption has been entered; and

(B)(i) the adoptive placement specified by the parent terminates; or

(ii) the revocation occurs before the later of the end of—

(I) the 180-day period beginning on the date on

which the Indian child’s tribe receives written notice of

the adoptive placement provided in accordance with

the requirements of subsections (c) and (d); or

(II) the 30-day period beginning on the date on

which the parent who revokes consent receives notice of

the commencement of the adoption proceeding that includes an explanation of the revocation period specified

in this subclause.

(3) The Indian child with respect to whom a revocation under

paragraph (2) is made shall be returned to the parent who revokes consent immediately upon an effective revocation under

that paragraph.

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

period determined under subclause (I) or (II) of paragraph

(2)(B)(ii), a consent to adoption or voluntary termination of parental rights has not been revoked, beginning after that date, a

parent may revoke such a consent only—

(A) pursuant to applicable State law; or

(B) if the parent of the Indian child involved petitions a

court of competent jurisdiction, and the court finds that the

consent to adoption or voluntary termination of parental

rights was obtained through fraud or duress.

(5) Subject to paragraph (6), if a consent to adoption or voluntary termination of parental rights is revoked under paragraph (4)(B), with respect to the Indian child involved—

(A) in a manner consistent with paragraph (3), the child

shall be returned immediately to the parent who revokes

consent; and

(B) if a final decree of adoption has been entered, that

final decree shall be vacated

(6) Except as otherwise provided under applicable State law,

no adoption that has been in effect for a period longer than or

equal to 2 years may be invalidated under this subsection.

* * * * * * *

25 U.S.C. 1913(c)

ø(c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody—

In any voluntary proceeding for termination of parental rights to,

or adoptive placement of, an Indian child, the consent of the parent

may be withdrawn for any reason at any time prior to the entry
30

of a final decree of termination or adoption, or the case may be,

and the child shall be returned to the parent.¿

(c)(1) A party that seeks the voluntary placement of an Indian

child or the voluntary termination of the parental rights of a parent

of an Indian child shall provide written notice of the placement or

proceeding to the Indian child’s tribe. A notice under this subsection

shall be sent by registered mail (return receipt requested) to the Indian child’s tribe, not later than the applicable date specified in

paragraph (2) or (3).

(2)(A) Except as provided in paragraph (3), notice shall be provided under paragraph (1) in each of the following cases:

(i) Not later than 100 days after any foster care placement of

an Indian child occurs.

(ii) Not later than 5 days after any preadoptive or adoptive

placement of an Indian child.

(iii) Not later than 10 days after the commencement of any

proceeding for a termination of parental rights to an Indian

child.

(iv) Not later than 10 days after the commencement of any

adoption proceeding concerning an Indian child.

(B) A notice described in subparagraph (A)(ii) may be provided

before the birth of an Indian child if a party referred to in paragraph (1) contemplates a specific adoptive or preadoptive placement.

(3) If, after the expiration of the applicable period specified in

paragraph (2), a party referred to in paragraph (1) discovers that

the child involved may be an Indian child—

(A) the party shall provide notice under paragraph (1) not

later than 10 days after the discovery; and

(B) any applicable time limit specified in subsection (e) shall

apply to the notice provided under subparagraph (A) only if the

party referred to in paragraph (1) has, on or before commencement of the placement made reasonable inquiry concerning

whether the child involved may be an Indian child.

* * * * * * *

25 U.S.C. 1913(d)

ø(d) Collateral attack; vacation of decree and return of custody;

limitations—

After the entry of a final decree of adoption of an Indian child

in any State court, the parent may withdraw consent thereto upon

the grounds that consent was obtained through fraud or duress and

may petition the court to vacate such decree. Upon a finding that

such consent was obtained through fraud or duress, the court shall

vacate such decree and return the child to the parent. No adoption

which has been effective for at least two years may be invalidated

under the provisions of this subsection unless otherwise permitted

under State law.¿

(d) Each written notice provided under subsection (c) shall contain the following:

(1) The name of the Indian child involved, and the actual or

anticipated date and place of birth of the Indian child.
31

(2) A list containing the name, address, date of birth, and (if

applicable) the maiden name of each Indian parent and grandparent of the Indian child, if—

(A) known after inquiry of—

(i) the birth parent placing the child or relinquishing

parental rights; and

(ii) the other birth parent (if available); or

(B) otherwise ascertainable through other reasonable inquiry.

(3) A list containing the name and address of each known extended family member (if any), that has priority in placement

under section 105.

(4) A statement of the reasons why the child involved may be

an Indian child.

(5) The names and addresses of the parties involved in any

applicable proceeding in a State court.

(6)(A) The name and address of the State court in which a

proceeding referred to in paragraph (5) is pending, or will be

filed; and

(B) the date and time of any related court proceeding that is

scheduled as of the date on which the notice is provided under

this subsection.

(7) If any, the tribal affiliation of the prospective adoptive

parents.

(8) The name and address of any public or private social

service agency or adoption agency involved.

(9) An identification of any Indian tribe with respect to which

the Indian child or parent may be a member.

(10) A statement that each Indian tribe identified under paragraph (9) may have the right to intervene in the proceeding referred to in paragraph (5).

(11) An inquiry concerning whether the Indian tribe that receives notice under subsection (c) intends to intervene under

subsection (e) or waive any such right to intervention.

(12) A statement that, if the Indian tribe that receives notice

under subsection (c) fails to respond in accordance with subsection (e) by the applicable date specified in that subsection,

the right of that Indian tribe to intervene in the proceeding involved shall be considered to have been waived by that Indian

tribe.

* * * * * * *

25 U.S.C. 1913

(e)(1) The Indian child’s tribe shall have the right to intervene at

any time in a voluntary child custody proceeding in a State court

only if—

(A) in the case of a voluntary proceeding to terminate parental rights, the Indian tribe filed a notice of intent to intervene

or a written objection to the termination, not later than 30 days

after receiving notice that was provided in accordance with the

requirements of subsections (c) and (d); or
32

(B) in the case of a voluntary adoption proceeding, the Indian

tribe filed a notice of intent to intervene or a written objection

to the adoptive placement, not later than the later of—

(i) 90 days after receiving notice of the adoptive placement that was provided in accordance with the requirements of subsections (c) and (d); or

(ii) 30 days after receiving a notice of the voluntary adoption proceeding that was provided in accordance with the

requirements of subsections (c) and (d).

(2)(A) Except as provided in subparagraph (B), the Indian child’s

tribe shall have the right to intervene at any time in a voluntary

child custody proceeding in a State court in any case in which the

Indian tribe did not receive written notice provided in accordance

with the requirements of subsections (c) and (d).

(B) An Indian tribe may not intervene in any voluntary child custody proceeding in a State court if the Indian tribe gives written notice to the State court or any party involved of—

(i) the intent of the Indian tribe not to intervene in the proceeding; or

(ii) the determination by the Indian tribe that—

(I) the child involved is not a member of, or is not eligible

for membership in, the Indian tribe; or

(II) neither parent of the child is a member of the Indian

tribe.

(3) If an Indian tribe files a motion for intervention in a State

court under this subsection, the Indian tribe shall submit to the

court, at the same time as the Indian tribe files that motion, a certification that includes a statement that document, with respect to

the Indian child involved, the membership or eligibility for membership of that Indian child in the Indian tribe under applicable tribal

law.

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

(e) shall not—

(1) affect any placement preference or other right of any individual under this Act;

(2) preclude the Indian tribe of the Indian child that is the

subject of an action taken by the Indian tribe under subsection

(e) from intervening in a proceeding concerning that Indian

child if a proposed adoptive placement of that Indian child is

changed after that action is taken; or

(3) except as specifically provided in subsection (e), affect the

applicability of this Act.

(g) Notwithstanding any other provision of law, no proceeding for

a voluntary termination of parental rights or adoption of an Indian

child may be conducted under applicable State law before the date

that is 30 days after the Indian child’s tribe receives notice of that

proceeding that was provided in accordance with the requirements

of subsections (c) and (d).

(h) Notwithstanding any other provision of law (including any

State law)—

(1) a court may approve, as part of an adoption decree of an

Indian child, an agreement that states that a birth parent, an

extended family member, or the Indian child’s tribe shall have
33

an enforceable right of visitation or continued contact with the

Indian child after the entry of a final decree of adoption; and

(2) the failure to comply with any provision of a court order

concerning the continued visitation or contact referred to in

paragraph (1) shall not be considered to be grounds for setting

aside a final decree of adoption.

* * * * * * *

25 U.S.C. 1924

§ 114. Fraudulent Representation

(a) IN GENERAL.—With respect to any proceeding subject to this

Act involving an Indian child or a child who may be considered to

be an Indian child for purposes of this Act, a person, other than a

birth parent of the child, shall, upon conviction, be subject to a

criminal sanction under subsection (b) if that person—

(1) knowingly and willfully falsifies, conceals, or covers up by

any trick, scheme, or device, a material fact concerning whether,

for purposes of this Act—

(A) a child is an Indian child; or

(B) a parent is an Indian; or

(2)(A) makes any false, fictitious, or fraudulent statement,

omission, or representation; or

(B) falsifies a written document knowing that the document

contains a false, fictitious, or fraudulent statement or entry relating to a material fact described in paragraph (1).

(b) CRIMINAL SANCTIONS.—The criminal sanctions for a violation

referred to in subsection (a) are as follows:

(1) For an initial violation, a person shall be fined in accordance with section 3571 of title 18, United States Code, or imprisoned not more than 1 year, or both.

(2) For any subsequent violation, a person shall be fined in

accordance with section 3571 of title 18, United States Code, or

imprisoned not more than 5 years, or both.

Æ