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[Senate Report 104-335]
[From the U.S. Government Publishing Office]

104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-335
_______________________________________________________________________

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

                                _______
                                

                 July 26, 1996.--Ordered to be printed

_______________________________________________________________________

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

                              R E P O R T

                         [To accompany S. 1962]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1962) to amend the Indian Child Welfare Act of 1978, 
and for other purposes, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                 Report

    The text of the bill follows:

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

SECTION 1. SHORT TITLE; REFERENCES.

  (a) Short Title.--This Act may be cited as the ``Indian Child 
Welfare Act Amendments of 1996''.
  (b) References.--Whenever in this Act an amendment or repeal 
is expressed in terms of an amendment to or repeal of a section 
or other provision, the reference shall be considered to be 
made to a section or other provision of the Indian Child 
Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

SEC. 2. EXCLUSIVE JURISDICTION.

  Section 101(a) (25 U.S.C. 1911(a)) is amended--
          (1) by inserting ``(1)'' after ``(a)''; and
          (2) by striking the last sentence and inserting the 
        following:
  ``(2) An Indian tribe shall retain exclusive jurisdiction 
over any child custody proceeding that involves an Indian 
child, notwithstanding any subsequent change in the residence 
or domicile of the Indian child, in any case in which the 
Indian child--
          ``(A) resides or is domiciled within the reservation 
        of the Indian tribe and is made a ward of a tribal 
        court of that Indian tribe; or
          ``(B) after a transfer of jurisdiction is carried out 
        under subsection (b), becomes a ward of a tribal court 
        of that Indian tribe.''.

SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

  Section 101(c) (25 U.S.C. 1911(c)) is amended by striking 
``In any State court proceeding'' and inserting ``Except as 
provided in section 103(e), in any State court proceeding''.

SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

  Section 103(a) (25 U.S.C. 1913(a)) is amended--
          (1) by inserting ``(1)'' before ``Where'';
          (2) by striking ``foster care placement'' and 
        inserting ``foster care or preadoptive or adoptive 
        placement'';
          (3) by striking ``judge's certificate that the 
        terms'' and inserting the following: ``judge's 
        certificate that--
          ``(A) the terms'';
          (4) by striking ``or Indian custodian.'' and 
        inserting ``or Indian custodian; and'';
          (5) by inserting after subparagraph (A), as 
        designated by paragraph (3) of this subsection, the 
        following new subparagraph:
          ``(B) any attorney or public or private agency that 
        facilitates the voluntary termination of parental 
        rights or preadoptive or adoptive placement has 
        informed the natural parents of the placement options 
        with respect to the child involved, has informed those 
        parents of the applicable provisions of this Act, and 
        has certified that the natural parents will be notified 
        within 10 days of any change in the adoptive 
        placement.'';
          (6) by striking ``The court shall also certify'' and 
        inserting the following:
  ``(2) The court shall also certify'';
          (7) by striking ``Any consent given prior to,'' and 
        inserting the following:
  ``(3) Any consent given prior to,''; and
          (8) by adding at the end the following new paragraph:
  ``(4) An Indian custodian who has the legal authority to 
consent to an adoptive placement shall be treated as a parent 
for the purposes of the notice and consent to adoption 
provisions of this Act.''.

SEC. 5. WITHDRAWAL OF CONSENT.

  Section 103(b) (25 U.S.C. 1913(b)) is amended--
          (1) by inserting ``(1)'' before ``Any''; and
          (2) by adding at the end the following new 
        paragraphs:
  ``(2) Except as provided in paragraph (4), a consent to 
adoption of an Indian child or voluntary termination of 
parental rights to an Indian child may be revoked, only if--
          ``(A) no final decree of adoption has been entered; 
        and
          ``(B)(i) the adoptive placement specified by the 
        parent terminates; or
          ``(ii) the revocation occurs before the later of the 
        end of--
                  ``(I) the 180-day period beginning on the 
                date on which the Indian child's tribe receives 
                written notice of the adoptive placement 
                provided in accordance with the requirements of 
                subsections (c) and (d); or
                  ``(II) the 30-day period beginning on the 
                date on which the parent who revokes consent 
                receives notice of the commencement of the 
                adoption proceeding that includes an 
                explanation of the revocation period specified 
                in this subclause.
  ``(3) The Indian child with respect to whom a revocation 
under paragraph (2) is made shall be returned to the parent who 
revokes consent immediately upon an effective revocation under 
that paragraph.
  ``(4) Subject to paragraph (6), if, by the end of the 
applicable period determined under subclause (I) or (II) of 
paragraph (2)(B)(ii), a consent to adoption or voluntary 
termination of parental rights has not been revoked, beginning 
after that date, a parent may revoke such a consent only--
          ``(A) pursuant to applicable State law; or
          ``(B) if the parent of the Indian child involved 
        petitions a court of competent jurisdiction, and the 
        court finds that the consent to adoption or voluntary 
        termination of parental rights was obtained through 
        fraud or duress.
  ``(5) Subject to paragraph (6), if a consent to adoption or 
voluntary termination of parental rights is revoked under 
paragraph (4)(B), with respect to the Indian child involved--
          ``(A) in a manner consistent with paragraph (3), the 
        child shall be returned immediately to the parent who 
        revokes consent; and
          ``(B) if a final decree of adoption has been entered, 
        that final decree shall be vacated.
  ``(6) Except as otherwise provided under applicable State 
law, no adoption that has been in effect for a period longer 
than or equal to 2 years may be invalidated under this 
subsection.''.

SEC. 6. NOTICE TO INDIAN TRIBES.

  Section 103(c) (25 U.S.C. 1913(c)) is amended to read as 
follows:
  ``(c)(1) A party that seeks the voluntary placement of an 
Indian child or the voluntary termination of the parental 
rights of a parent of an Indian child shall provide written 
notice of the placement or proceeding to the Indian child's 
tribe. A notice under this subsection shall be sent by 
registered mail (return receipt requested) to the Indian 
child's tribe, not later than the applicable date specified in 
paragraph (2) or (3).
  ``(2)(A) Except as provided in paragraph (3), notice shall be 
provided under paragraph (1) in each of the following cases:
          ``(i) Not later than 100 days after any foster care 
        placement of an Indian child occurs.
          ``(ii) Not later than 5 days after any preadoptive or 
        adoptive placement of an Indian child.
          ``(iii) Not later than 10 days after the commencement 
        of any proceeding for a termination of parental rights 
        to an Indian child.
          ``(iv) Not later than 10 days after the commencement 
        of any adoption proceeding concerning an Indian child.
  ``(B) A notice described in subparagraph (A)(ii) may be 
provided before the birth of an Indian child if a party 
referred to in paragraph (1) contemplates a specific adoptive 
or preadoptive placement.
  ``(3) If, after the expiration of the applicable period 
specified in paragraph (2), a party referred to in paragraph 
(1) discovers that the child involved may be an Indian child--
          ``(A) the party shall provide notice under paragraph 
        (1) not later than 10 days after the discovery; and
          ``(B) any applicable time limit specified in 
        subsection (e) shall apply to the notice provided under 
        subparagraph (A) only if the party referred to in 
        paragraph (1) has, on or before commencement of the 
        placement, made reasonable inquiry concerning whether 
        the child involved may be an Indian child.''.

SEC. 7. CONTENT OF NOTICE.

  Section 103(d) (25 U.S.C. 1913(d)) is amended to read as 
follows:
  ``(d) Each written notice provided under subsection (c) shall 
contain the following:
          ``(1) The name of the Indian child involved, and the 
        actual or anticipated date and place of birth of the 
        Indian child.
          ``(2) A list containing the name, address, date of 
        birth, and (if applicable) the maiden name of each 
        Indian parent and grandparent of the Indian child, if--
                  ``(A) known after inquiry of--
                          ``(i) the birth parent placing the 
                        child or relinquishing parental rights; 
                        and
                          ``(ii) the other birth parent (if 
                        available); or
                  ``(B) otherwise ascertainable through other 
                reasonable inquiry.
          ``(3) A list containing the name and address of each 
        known extended family member (if any), that has 
        priority in placement under section 105.
          ``(4) A statement of the reasons why the child 
        involved may be an Indian child.
          ``(5) The names and addresses of the parties involved 
        in any applicable proceeding in a State court.
          ``(6)(A) The name and address of the State court in 
        which a proceeding referred to in paragraph (5) is 
        pending, or will be filed; and
          ``(B) the date and time of any related court 
        proceeding that is scheduled as of the date on which 
        the notice is provided under this subsection.
          ``(7) If any, the tribal affiliation of the 
        prospective adoptive parents.
          ``(8) The name and address of any public or private 
        social service agency or adoption agency involved.
          ``(9) An identification of any Indian tribe with 
        respect to which the Indian child or parent may be a 
        member.
          ``(10) A statement that each Indian tribe identified 
        under paragraph (9) may have the right to intervene in 
        the proceeding referred to in paragraph (5).
          ``(11) An inquiry concerning whether the Indian tribe 
        that receives notice under subsection (c) intends to 
        intervene under subsection (e) or waive any such right 
        to intervention.
          ``(12) A statement that, if the Indian tribe that 
        receives notice under subsection (c) fails to respond 
        in accordance with subsection (e) by the applicable 
        date specified in that subsection, the right of that 
        Indian tribe to intervene in the proceeding involved 
        shall be considered to have been waived by that Indian 
        tribe.''.

SEC. 8. INTERVENTION BY INDIAN TRIBE.

  Section 103 (25 U.S.C. 1913) is amended by adding at the end 
the following new subsections:
  ``(e)(1) The Indian child's tribe shall have the right to 
intervene at any time in a voluntary child custody proceeding 
in a State court only if--
          ``(A) in the case of a voluntary proceeding to 
        terminate parental rights, the Indian tribe filed a 
        notice of intent to intervene or a written objection to 
        the termination, not later than 30 days after receiving 
        notice that was provided in accordance with the 
        requirements of subsections (c) and (d); or
          ``(B) in the case of a voluntary adoption proceeding, 
        the Indian tribe filed a notice of intent to intervene 
        or a written objection to the adoptive placement, not 
        later than the later of--
                  ``(i) 90 days after receiving notice of the 
                adoptive placement that was provided in 
                accordance with the requirements of subsections 
                (c) and (d); or
                  ``(ii) 30 days after receiving a notice of 
                the voluntary adoption proceeding that was 
                provided in accordance with the requirements of 
                subsections (c) and (d).
  ``(2)(A) Except as provided in subparagraph (B), the Indian 
child's tribe shall have the right to intervene at any time in 
a voluntary child custody proceeding in a State court in any 
case in which the Indian tribe did not receive written notice 
provided in accordance with the requirements of subsections (c) 
and (d).
  ``(B) An Indian tribe may not intervene in any voluntary 
child custody proceeding in a State court if the Indian tribe 
gives written notice to the State court or any party involved 
of--
          ``(i) the intent of the Indian tribe not to intervene 
        in the proceeding; or
          ``(ii) the determination by the Indian tribe that--
                  ``(I) the child involved is not a member of, 
                or is not eligible for membership in, the 
                Indian tribe; or
                  ``(II) neither parent of the child is a 
                member of the Indian tribe.
  ``(3) If an Indian tribe files a motion for intervention in a 
State court under this subsection, the Indian tribe shall 
submit to the court, at the same time as the Indian tribe files 
that motion, a certification that includes a statement that 
documents, with respect to the Indian child involved, the 
membership or eligibility for membership of that Indian child 
in the Indian tribe under applicable tribal law.
  ``(f) Any act or failure to act of an Indian tribe under 
subsection (e) shall not--
          ``(1) affect any placement preference or other right 
        of any individual under this Act;
          ``(2) preclude the Indian tribe of the Indian child 
        that is the subject of an action taken by the Indian 
        tribe under subsection (e) from intervening in a 
        proceeding concerning that Indian child if a proposed 
        adoptive placement of that Indian child is changed 
        after that action is taken; or
          ``(3) except as specifically provided in subsection 
        (e), affect the applicability of this Act.
  ``(g) Notwithstanding any other provision of law, no 
proceeding for a voluntary termination of parental rights or 
adoption of an Indian child may be conducted under applicable 
State law before the date that is 30 days after the Indian 
child's tribe receives notice of that proceeding that was 
provided in accordance with the requirements of subsections (c) 
and (d).
  ``(h) Notwithstanding any other provision of law (including 
any State law)--
          ``(1) a court may approve, as part of an adoption 
        decree of an Indian child, an agreement that states 
        that a birth parent, an extended family member, or the 
        Indian child's tribe shall have an enforceable right of 
        visitation or continued contact with the Indian child 
        after the entry of a final decree of adoption; and
          ``(2) the failure to comply with any provision of a 
        court order concerning the continued visitation or 
        contact referred to in paragraph (1) shall not be 
        considered to be grounds for setting aside a final 
        decree of adoption.''.

SEC. 9. FRAUDULENT REPRESENTATION.

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

``SEC. 114. FRAUDULENT REPRESENTATION.

  ``(a) In General.--With respect to any proceeding subject to 
this Act involving an Indian child or a child who may be 
considered to be an Indian child for purposes of this Act, a 
person, other than a birth parent of the child, shall, upon 
conviction, be subject to a criminal sanction under subsection 
(b) if that person--
          ``(1) knowingly and willfully falsifies, conceals, or 
        covers up by any trick, scheme, or device, a material 
        fact concerning whether, for purposes of this Act--
                  ``(A) a child is an Indian child; or
                  ``(B) a parent is an Indian; or
          ``(2)(A) makes any false, fictitious, or fraudulent 
        statement, omission, or representation; or
          ``(B) falsifies a written document knowing that the 
        document contains a false, fictitious, or fraudulent 
        statement or entry relating to a material fact 
        described in paragraph (1).
  ``(b) Criminal Sanctions.--The criminal sanctions for a 
violation referred to in subsection (a) are as follows:
          ``(1) For an initial violation, a person shall be 
        fined in accordance with section 3571 of title 18, 
        United States Code, or imprisoned not more than 1 year, 
        or both.
          ``(2) For any subsequent violation, a person shall be 
        fined in accordance with section 3571 of title 18, 
        United States Code, or imprisoned not more than 5 
        years, or both.''.

                                Purposes

    The purpose of S. 1962 is to amend the Indian Child Welfare 
Act to make the process that applies to voluntary Indian child 
custody and adoption proceedings more fair, consistent and 
certain, in order to further advance the best interests of 
Indian children without eroding tribal sovereignty and the 
fundamental principles of Federal-Indian law.

                               Background

                  Federal-Indian Child Welfare Policy

    In 1978, the Congress enacted the Indian Child Welfare Act 
(ICWA) in response to growing concerns about the consequences 
of the decades-old practice of separating Indian children from 
their Indian families and tribes through adoption or foster 
care placement. The 95th Congress expressed concern over the 
inordinately high number of placements of Indian children into 
non-Indian homes and environments, concluding that ``[t]he 
wholesale separation of Indian children from their families is 
perhaps the most tragic aspect of American Indian life today.'' 
\1\ The 1977 Final Report of the American Indian Policy Review 
Commission, established by the Congress to study and provide 
recommendations on Federal-Indian policy, shared this 
concern.\2\ Congressional oversight hearings in 1974, 1977 and 
1978 documented many examples of wholesale removal of Indian 
children from their families and homes. Studies conducted by 
the Association of American Indian Affairs prior to enactment 
of the ICWA revealed that 25 to 35 percent of all Indian 
children had been separated from their families and placed into 
adoptive families, foster care, or other institutions.\3\ In 
certain States, the problem of public and private agencies 
removing Indian children from homes was more widespread. For 
example, in Minnesota from 1971 through 1972 nearly one in 
every four Indian infants under the age of one year old was 
placed for adoption. Over this same period, the adoption rate 
of Indian children was five times that of non-Indian children 
and approximately 90% of the placements involving Indian 
children were with non-Indian families.\4\
---------------------------------------------------------------------------
    \1\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
    \2\ Final Report, May 17, 1977, American Indian Policy Review 
Commission, pages 422, 423.
    \3\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
    \4\ Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ See, e.g., 25 U.S.C. 1912.
    \6\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 
49-53 (1989).
---------------------------------------------------------------------------
    The 95th Congress found that the extraordinarily high rate 
of involuntary and voluntary placements of Indian children with 
non-Indian families was not in the best interests of Indian 
tribes, Indian families and Indian children. As construed in 
the Holyfield case, the ICWA is concerned with both the 
``impact on the tribes themselves of the large numbers of 
children adopted by non-Indians * * * [and] the detrimental 
impact on the children themselves of such placements outside 
their culture.'' \7\
---------------------------------------------------------------------------
    \7\ Id., at 49-50.
---------------------------------------------------------------------------
    Several witnesses in hearings before the Senate and House 
Committees held prior to enactment of the ICWA testified about 
the serious adjustment problems encountered by many adopted 
Indian children as they reached adolescence in non-Indian 
homes. For example, the American Academy of Child Psychiatry 
testified that:

          There is much clinical evidence to suggest that these 
        Native American children placed in off-reservation non-
        Indian homes are at risk in their later development. 
        Often enough they are cared for by devoted and well 
        intentioned foster or adoptive parents. Nonetheless, 
        particularly in adolescence, they are subject to ethnic 
        confusion and a pervasive sense of abandonment with its 
        attendant multiple ramifications.\8\
---------------------------------------------------------------------------
    \8\ Hearings on Indian Child Welfare before the Senate Subcommittee 
on Indian Affairs, 95th Cong., 1st Session (1977) at 114.

    The Congress also received compelling evidence prior to 
enactment of the ICWA concerning the impact of the large 
numbers of placements upon Indian tribes. For example, Chief 
Calvin Isaac of the Mississippi Band of Choctaw Indians 
---------------------------------------------------------------------------
testified that:

          Culturally, the chances of Indian survival are 
        significantly reduced if our children, the only real 
        means for the transmission of the tribal heritage, are 
        to be raised in non-Indian homes and denied exposure to 
        the ways of their People. Furthermore, these practices 
        seriously undercut the tribes' ability to continue as 
        self-governing communities. Probably in no area is it 
        more important that tribal sovereignty be respected 
        than in an area as socially and culturally 
        determinative as family relationships.\9\
---------------------------------------------------------------------------
    \9\ Hearings on S. 1214 before the Subcommittee on Indian Affairs 
and Public Lands of the House Committee on Interior and Insular 
Affairs, 95th Cong. 2d. Sess. (1978) at 193.

    In addition, the 95th Congress received considerable 
testimony on the importance of the extended family in Indian 
culture. As the House Interior and Insular Affairs Committee 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \10\ H. Rept. 95-1386, 2d. Sess., 1978 at pages 10, 20.

    The 95th Congress determined that much of the 
responsibility for the Indian child welfare crisis that was 
undermining Indian tribes and families, and that was working 
against the best interests of Indian children, rested with the 
policies and practices of State agencies and courts. Congress 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \11\ 25 U.S.C. 1901(5).

    This treatment of Indian children under State law persisted 
prior to the enactment of the ICWA despite the existence of 
well-settled principles of Federal law which generally 
established that the primary authority in matters involving the 
relationship of an Indian child to his or her parents or 
extended family was the Indian child's tribe. Years after the 
enactment of the ICWA, the United States Supreme Court in 
Holyfield recognized that ``[t]ribal jurisdiction over Indian 
child custody proceedings is not a novelty of the ICWA.'' \12\
---------------------------------------------------------------------------
    \12\ Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 
U.S. at 42.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \13\ Id. at 36.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ 25 U.S.C. 1913(a).
---------------------------------------------------------------------------

             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\
---------------------------------------------------------------------------
    \25\ Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 
U.S. at 50.
---------------------------------------------------------------------------
    Each year thousands of child custody and adoption 
proceedings take place in which the ICWA is applied without 
remarkable incident. Nonetheless, particularly in the voluntary 
adoption context, there have been occasional, high-profile 
cases which have resulted in lengthy, protracted litigation 
causing great anguish for the children, their adoptive 
families, their birth families, and their Indian tribes.

           DESCRIPTION OF THE ``TULSA'' COMPROMISE AGREEMENT

Origins of the Bill

    S. 1962 is the product of the year-long efforts of several 
representatives of the adoption community and of Indian tribal 
governments who jointly developed compromise amendments to the 
ICWA. Their effort was to identify changes that would address 
some problems with the implementation of the ICWA that would be 
acceptable to both adoption advocates and Indian tribes. The 
Committee was briefed in late 1995 and early 1996 by 
representatives of those participating in the compromise 
negotiations and these representatives were encouraged to 
circulate drafts to Indian tribes and the adoption community 
for review. Both the National Indian Child Welfare Association 
(NICWA) and the National Congress of American Indians (NCAI) 
were actively involved in these efforts, as were 
representatives of the American Academy of Adoption Attorneys 
(AAAA) and the Academy of California Adoption Attorneys (ACAA). 
In early June, 1996, at the mid-year convention of the NCAI at 
Tulsa, Oklahoma, tribal delegates labored at length and in good 
faith to refine the compromise amendments. After the 
convention, a tribally-sanctioned committee worked with 
adoption attorneys to fine-tune the ``Tulsa'' compromise 
language. Representatives of both the Indian tribes and the 
adoption community have confirmed that S. 1962 is within the 
parameters of, and is consistent with, the ``Tulsa'' compromise 
agreement.
    S. 1962 would achieve greater certainty and speed through 
new guarantees of early and effective notice in all cases 
involving Indian children combined with new, strict time 
restrictions placed on both the right of Indian tribes and 
families to intervene and the right of Indian birth parents to 
revoke their consent to an adoptive placement. S. 1962 would 
encourage early identification of the relatively few cases 
involving controversy, and promote settlement of cases by 
making visitation agreements enforceable.

Limitations on when and how an Indian tribe may intervene

    25 U.S.C. 1911(c) and 1913(e) would be substantially 
amended to curtail the present right of an Indian tribe to 
intervene ``at any point in the proceeding.'' Under S. 1962, 
this right of intervention could be exercised only within the 
following periods of time: within 30 days of receipt of notice 
of a termination of parental rights proceeding, or within the 
later of 90 days of receipt of notice of an adoptive placement 
or 30 days of receipt of notice of a voluntary adoption 
proceeding. With proper notice, an Indian tribe's failure to 
act within these time frames early in the placement proceedings 
is final. An Indian tribe's waiver of its right to intervene is 
binding. If an Indian tribe seeks to intervene, it must 
accompany its motion with a certification that the child at 
issue is, or is eligible to be, a member of the tribe and 
provide documentation of this pursuant to tribal law.

Limitations on when an Indian birth parent may withdraw his or her 
        consent to adoption or termination of parental rights

    25 U.S.C. 1913(b) would be substantially amended by S. 1962 
to curtail the present right of an Indian birth parent to 
withdraw his or her consent to an adoption placement or 
termination of parental rights at any time prior to entry of a 
final decree. Under S. 1962 such consent could be withdrawn 
before a final decree of adoption has been entered only if the 
adoptive placement specified by the parent is terminated, or 
before the end of the latter of the following two periods: 6 
months after the Indian child's tribe received the required 
notice or 30 days after the adoption proceeding began. An 
Indian biological parent may otherwise revoke only under 
applicable State law. In the case of fraud or duress, an Indian 
birth parent may seek to invalidate an adoption up to two years 
after the adoption has been in effect, or within a longer 
period established by the applicable State law.

Requirement of early and effective notice and information to Indian 
        tribes

    25 U.S.C. 1913 would be substantially amended by S. 1962 to 
add a requirement for notice to be sent to the Indian child's 
tribe by a party seeking to place or to effect a voluntary 
termination of parental rights concerning a child reasonably 
known to be an Indian. Such notice must be sent by registered 
mail within 100 days following a foster care placement, within 
five days following a pre-adoptive or adoptive placement, and 
within 10 days of the commencement of a termination of parental 
rights proceeding or adoption proceeding. S. 1962 would specify 
the particular information that is to be provided. In addition, 
25 U.S.C. 1913(a) would be amended by S. 1962 to require a 
certification by the State court that the attorney or public or 
private agency facilitating the voluntary termination of 
parental rights or adoptive placement has informed the birth 
parents of their placement options and of other provisions of 
the ICWA and has certified that the birth parents will be 
notified within 10 days of any change in the adoptive 
placement.

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

    25 U.S.C. 1913 would be amended by S. 1962 to encourage and 
facilitate voluntary agreements between Indian families or 
tribes and non-Indian adoptive families for enforceable rights 
of visitation or continued contact after entry of an adoption 
decree. This provision would have the effect of authorizing 
such agreements where independent authority does not exist in 
the law of a particular State. This should help encourage early 
identification and settlement of controversial cases.

Penalties applied for fraud and misrepresentation

    S. 1962 would apply criminal penalties to any efforts to 
encourage or facilitate fraudulent representations or omissions 
regarding whether a child or birth parent is an Indian for 
purposes of the Act.

Miscellaneous

    S. 1962 would clarify that the exclusive jurisdiction of 
tribal courts under 25 U.S.C. 1911(a) continue once a child is 
properly made a ward of that tribal court, regardless of any 
subsequent change in residence or domicile of the child.

                          other considerations

    On June 19, 1996, the committee struck the provisions of 
Title III from H.R. 3286, the Adoption Promotion and Stability 
Act of 1996, by a vote of 14 to 1 and ordered it reported with 
the recommendation that the Senate pass the bill without the 
provisions of Title III.\26\
---------------------------------------------------------------------------
    \26\ S. Rept. 104-288, 2d. Sess., 1996.
---------------------------------------------------------------------------
    Title III would have undone much of the progress achieved 
by the ICWA. The Committee struck Title III from H.R. 3286 
because it had great potential for harm to Indian children, to 
Indian families, and to fundamental principles of Federal-
tribal relations and tribal sovereignty. At the very least, 
Title III would have caused an explosion of litigation and 
disrupted tribal and State child welfare systems, thereby 
delaying many permanent placements to the detriment of Indian 
children.
    At the core of Title III was a provision that would have 
codified in Federal statutory law a version of the so-called 
``existing Indian family exception'' doctrine that has been 
created and applied in certain States by judges seeking to find 
that the ICWA does not apply to a particular case. In striking 
Title III, the Committee made clear its view that the 
``existing Indian family exception'' doctrine is completely 
contrary to the entire purpose of the ICWA. In contrast, the 
ICWA recognizes that the Federal trust responsibility and the 
role of Indian tribes as parens patriae extend to all Indian 
children involved in all child custody proceedings. The 
constitutional legitimacy of Indian-specific legislation has 
long rested upon the basis of a political classification which 
is unique to Indians and not upon a racial classification.\27\ 
It is a well settled principle in Federal-Indian law that 
Indian tribes have the authority to define their membership and 
that this authority is integral to the survival of tribes and 
the exercise of their sovereignty as tribal governments. The 
approach taken by the Title III provisions contradicts that 
fundamental principle. As the United States Supreme Court has 
explained:
---------------------------------------------------------------------------
    \27\ See, e.g., Morton v. Mancari, 417 U.S. 535 (1974).

          A tribe's right to define its own membership for 
        tribal purposes has long been recognized as central to 
        its existence as an independent political community. 
        Given the often vast gulf between tribal traditions and 
        those with which federal courts are more intimately 
        familiar, the judiciary should not rush to create 
        causes of action that would intrude on these delicate 
        matters. (citations omitted) \28\
---------------------------------------------------------------------------
    \28\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978).

    When the ICWA was enacted, it is clear from the statute and 
from the legislative history that the Congress intended to 
reaffirm these principles and to provide for tribal involvement 
with, and Federal protections for, all children defined by 
their tribes as members or eligible for membership who are 
involved in any child custody proceeding, regardless of their 
individual circumstances. Moreover, this Committee's rejection 
of Title III and its adoption of S. 1962 is continuing evidence 
that the ICWA, as amended, is to be applied to all Indian 
children in all child custody proceedings regardless of their 
individual circumstances. Likewise, this Committee's rejection 
of Title III and its adoption of S. 1962 should be construed as 
a rejection of ``existing Indian family exception'' doctrine in 
all of its manifestations.

  SUMMARY OF THE PROVISIONS OF S. 1962, THE INDIAN CHILD WELFARE ACT 
                           AMENDMENT OF 1996

Ward of the court

    Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify 
that an Indian tribe retains exclusive jurisdiction over any 
child made a ward of a tribal court if the child subsequently 
changes residence and domicile. The Committee intends this 
amendment to clarify that exclusive jurisdiction over a ward of 
a tribal court occurs only if, at the time the wardship is 
established, the child is a resident of or domiciled on an 
Indian reservation or the proceeding has been transferred to 
the tribal court pursuant to a valid State court transfer or 
jurisdiction.

Tribal interventions in State court proceedings

    Sections 3 and 8 provide new limitations on the right of an 
Indian tribe to intervene in State court proceedings involving 
Indian Children. Section 3 makes a conforming, technical 
amendment which recognizes that tribal interventions in 
voluntary proceedings under 25 U.S.C. 1911(c) will hereafter be 
governed by the time limitations and other provisions set forth 
in Section 8 of these amendments. The Committee intends Section 
8 to limit the tribal right to intervene in adoption 
proceedings by requiring the Indian tribe to either file a 
notice of intent to intervene or send a written objection to a 
proposed adoption to the party or the State court within 90 
days of receiving notice of an adoptive placement or 30 days 
after receiving notice of a voluntary adoption proceeding, 
whichever is later, or the tribe's right to intervene will be 
deemed waived. In the case of voluntary termination 
proceedings, as distinguished from adoption proceedings, the 
Indian tribe must take action within 30 days of having received 
the requisite notice. The tribal right to intervene may also be 
waived if the Indian tribe gives written notice of its intent 
not to intervene or gives written notice that neither birth 
parent is a member of the tribe or gives written notice that 
the child is not a member of, and is not eligible for 
membership in, the Indian tribe.
    Under Section 8, an Indian tribe must simply make known its 
intent to intervene or, in writing, its objection to the 
termination of parental rights or the adoptive placement. The 
Committee intends that where an Indian tribe sends notice or 
written objection to the party seeking the adoption, but not to 
the court, the party receiving such notice shall notify the 
court that the tribe has preserved its right of intervention. 
This is likely to occur in cases where a placement has been 
made before a court proceeding has begun. The Committee has 
designed these provisions to give prospective adoptive parents 
confidence that they can go forward with an adoption after a 
specified time period without later action by an Indian tribe 
which may disrupt the adoption. Furthermore, the Committee 
intends that these provisions will provide an Indian tribe with 
a reasonable time period within which to become involved in the 
placement of a child if the tribe believes this would be in the 
best interest of the Indian child.
    Section 8 also provides that if an adoptive placement 
specified in the notice to the Indian tribe is changed at a 
later date, the tribal right to intervene is restored even if 
the time periods have lapsed. Such a change likely would be 
extremely rare, but in these cases the Indian tribe's 
involvement in the subsequent placement is just as important 
for the best interests of the child as was its involvement in 
the first placement. An Indian tribe must receive notice of 
each adoptive, preadoptive or foster care family placement 
within five days of when the placement is made. This 
legislation will ensure that Indian tribes will receive 
effective notice if an adoptive placement has ended. Finally, 
if an Indian tribe does not receive notice which complies with 
section 7 of these amendments, the Committee intends that the 
Indian tribe will retain a right to intervene at any point in 
the voluntary proceeding. The Committee recognizes that there 
may be circumstances when a child's Indian identity is 
discovered after the expiration of the time frames for notice 
and tribal response, despite the fact that the facilitators of 
an adoption made a reasonable inquiry concerning the Indian 
identity of a child on or before the beginning of a placement. 
In those circumstances, it is the Committee's intention that 
notice be provided within 10 days of the discovery of a child's 
Indian identity and that thereafter, the time frames for tribal 
intervention outlined in section 8 will apply. If, however 
there is evidence that a reasonable inquiry was not made 
concerning the Indian identity of a child on or before the 
beginning of a placement, the time limitations set forth in 
section 8 on tribal intervention shall not apply.
    The Committee intends that a waiver by an Indian tribe 
under section 8 does not otherwise affect the applicability of 
the Act to the Indian child and family, including application 
of the placement preferences, and does not prevent any other 
person from asserting any rights under the Act. The Committee 
intends that the rights of the Indian child's extended family 
or others to intervene, or otherwise be involved, are to be 
left to existing laws and court rules on standing and are not 
to be altered in any way by this legislation. \29\
---------------------------------------------------------------------------
    \29\ See, e.g., E.A. v. State, 623 P.2d 1210 (Alaska Sup. Ct. 
1981).
---------------------------------------------------------------------------
    The Committee intends section 8 to also require that an 
Indian tribe must include with any motion to intervene in a 
voluntary proceeding, a certification that includes a statement 
that documents the membership or eligibility for membership of 
the Indian child. In recognition of long-standing and 
fundamental principles of Federal Indian law, this section 
recognizes that tribal determinations of membership under 
tribal law are conclusive for the purpose of determining 
whether a child is an Indian child subject to the ICWA and that 
the ICWA is applicable to all Indian children who are the 
subject of a voluntary placement or proceeding. By adding this 
requirement, it is the Committee's intent to provide assurances 
to other parties involved with Indian children that Indian 
tribes will follow a specified set of rules based upon their 
own membership requirements which they have established under 
tribal law. Under the new subsection (e)(3), the Committee 
intends this certification to be filed no later than when the 
motion to intervene is filed. It need not necessarily be filed 
when the Indian tribe files its written objection or notice of 
intent to intervene. The term ``motion'' is not meant, however, 
to suggest any particular procedure for intervention. The 
Committee is aware that in many State courts, informal tribal 
intervention has been permitted through letter, appearance of a 
tribal social worker or otherwise. The Committee does not 
intend in any way to discourage such informal procedures. 
Rather the language of this subsection is simply meant to make 
clear that the certification requirement attaches at the actual 
time of intervention.
    Finally, section 8 would allow State courts to enter 
enforceable orders providing for visitation or continued 
contact between Indian tribes, birth parents, extended Indian 
family members, and an adopted child. These orders would arise 
only in the context of a voluntary agreement entered into with 
the adoptive family. The Committee anticipates that the 
possibility of open adoption, as an option in all proceedings, 
may facilitate harmonious placements of Indian children and 
avoid conflict in some otherwise contentious situations. In a 
number of States, courts currently have no authority to 
recognize and enforce open adoption arrangements even where the 
parties have reached an agreement. It is the Committee's 
intention that this section authorize State courts to make 
enforceable any type of post-adoption arrangement or specific 
conditions that may be agreed to by the parties to a voluntary 
adoptive proceeding.

Voluntary termination of parental rights

    Section 4 clarifies that the existing provisions of the 
ICWA which deal with the validation of parental consent before 
a judge at least 10 days after birth applies to all adoptive, 
preadoptive and foster care placements. In addition, the 
Committee intends section 4 to require a judge to certify that 
the birth parents have been informed of their placement options 
and of their rights under the ICWA. Finally, the judge must 
confirm that the adoption agency or attorney which facilitates 
an adoption has certified that the birth parents will be 
notified within ten days if an adoptive placement changes.
    The Committee intends that the additional information 
required by section 4 will increase the opportunity for birth 
parents to fully consider their placement options at the very 
beginning of the process and more fully understand their right 
to revoke consent, the limitations placed upon that right to 
revoke, the potential role of the Indian tribe, and the 
application of the placement preference provisions in the Act. 
Full information to birth parents, combined with notice to the 
Indian child's tribe, should help ensure that a young, 
vulnerable Indian parent has the balanced information available 
which any person needs to make an informed decision. For 
example, when only an adoption attorney or agency is involved 
with a young parent considering adoption, there is a 
substantial possibility that extended family options will not 
be explored. The requirement in this section is designed to 
ensure that all birth parents of Indian children who are 
involved in a voluntary child custody proceeding understand the 
multiple options available to them and that they are not 
presented with only one placement option. Providing parents 
with full information at the outset of the process should help 
lessen the number of disputes which can arise later on in the 
process because parents were unclear about their available 
options when they placed the child for adoption.
    Finally, the requirement in section 4 that the person or 
agency facilitating the adoption notify a birth parent when the 
adoptive placement ends is meant to ensure that the parent will 
be able to exercise his or her right to revoke consent which is 
guaranteed under these amendments in any circumstance where an 
adoptive placement is terminated. In addition, the Committee 
intends that an Indian custodian vested with legal authority to 
consent to an adoptive placement be treated as a birth parent 
for the purposes of the Act, including the requirements 
governing notice provided or received and consent given or 
revoked.

Withdrawal of parental consent

    The Committee intends section 5 to clarify when a birth 
parent can revoke consent to an adoption or voluntary 
termination of parental rights before a final decree of 
adoption has been entered by a court. The revocation period is 
limited to six months after the Indian child's tribe receives 
notice of the adoptive placement of the child, which notice 
must be received within five days of the actual placement. The 
revocation period is longer if the birth parent has not 
received notice of the actual commencement of the legal 
proceeding to finalize the adoption at least 30 days before the 
end of that six month period. If the parent has not received 
such notice, the period for revocation is extended until 30 
days after receipt of notice by the parent. The parental right 
to revoke is also extended if the child's adoptive placement is 
changed from that which was proposed at the time of the 
parent's consent. It should be noted that section 5 does not 
alter the provisions of existing law which terminate, as of the 
date of the final adoption decree, the parental right to revoke 
consent if that adoption decree is finalized prior to the end 
of the six month period. The only exception to this limitation 
occurs when a birth parent can later show to the court that his 
or her consent was obtained through fraud or duress, but such a 
claim may be brought no later than two years after the final 
decree of adoption is entered. Finally, the Committee intends 
the time limits on parental withdrawal of consent to bring 
consistency and certainty to the adoption process. Prospective 
adoptive parents will know the time frames during which 
parental consent can be revoked and need not fear disruption of 
the adoption at some unknown point in the future.

Notice to Indian tribes

    Section 6 requires notice to an Indian tribe of all 
voluntary adoptive and preadoptive placements, all voluntary 
termination of parental rights proceedings, all voluntary 
adoption proceedings and all voluntary foster care placements 
that exceed 100 days which involve a child defined under 
current law as an Indian child for purposes of the Act (any 
child who is a member of an Indian tribe or who may be eligible 
for membership and is a child of a member of an Indian tribe). 
Notice would be required within 5 days of an adoptive or pre-
adoptive placement and may be made earlier, even prior to 
birth, if an adoptive or preadoptive placement is contemplated. 
The Committee intends the language of the bill to permit a 
single notice to be sent covering multiple activities--for 
example, if an adoptive placement is made and an adoption 
proceeding is commenced simultaneously, the Committee intends 
that a single notice could be written and provided in such a 
way as to meet the obligations of section 6 so long as such 
notice meets the requirements of section 7. The Committee 
intends that a notice will be sent within the specified time 
frames each time one of the specified placements or proceedings 
commences. If it is discovered that a child may be an Indian 
child after the applicable notice periods have run, notice 
under section 6 must be provided within 10 days of the 
discovery that the child may be an Indian. If after a placement 
the child's Indian identity is uncovered and the notice is 
provided within 10 days of the discovery, there are no time 
limitations placed upon tribal intervention following such a 
late notice unless the party serving the notice can show to the 
court that reasonable inquiry regarding whether the child may 
be an Indian had been made at or prior to placement of the 
child. With these provisions dealing with a belated discovery 
that the child may be an Indian and that the adoption is thus 
made subject to the requirements of the ICWA, the Committee 
intends to provide prospective adoptive parents with some 
protection from late intervention if they can show they made a 
reasonable inquiry at or before the time the placement began as 
to whether the child may be an Indian. Likewise, the Committee 
intends these provisions to provide an Indian tribe with prompt 
notice of the adoption placement and proceeding and some 
opportunity to intervene within the time limitations applicable 
under section 8.
    The Committee has received ample testimony indicating that, 
because the ICWA does not include a specific notice requirement 
to Indian tribes in the case of voluntary adoptions, Indian 
tribes frequently do not learn of the adoptive placements until 
months and sometimes years after the placement has begun. 
Particularly in the case of an off-reservation birth to an 
unwed mother--which is frequently the circumstance in a 
substantial portion of these cases--there may be a significant 
delay in such information becoming known within the tribal 
community. Thus, even where an Indian tribe acts promptly upon 
obtaining the information, a situation may have developed where 
the Indian child has already spent a significant amount of time 
in that placement before the Indian tribe has any knowledge 
with which it could act to become involved in the case in the 
State court, whether through intervention in the proceeding, 
submitting a request for future contact or visitation, or other 
involvement. The Committee expects that, under the requirements 
of the bill, providing Indian tribes with prompt notice in all 
cases will greatly enhance the possibility that a prospective 
adoptive parent will know before the initial placement begins, 
or within a very short time thereafter, whether a member of the 
Indian child's family or tribe has an interest in adopting the 
child. The Committee intends the notice required under section 
6 to help to ensure that the best interests of Indian children 
are served by the provision of good and loving families while 
at the same time ensuring that those best interests of the 
children are not undermined by children being removed from 
their families and tribes in cases where good and loving 
placements are available within their families or tribal 
communities.
    Moreover, the Committee wishes to emphasize that an Indian 
tribe has a parens patriae relationship with all children who 
are members of the tribe or who are eligible for tribal 
membership and who are children of tribal members. Off-
reservation children and parents, some of whom may be in a 
precarious or unstable living situation and alienated from 
their tribal community, are a uniquely vulnerable segment of 
the American Indian and Alaska Native population and the ICWA 
specifically recognizes the tribal interest in such individuals 
and the benefit to these Indian families of tribal involvement. 
Thus, the Committee has concluded that the best interests of 
Indian children and families are served by early and full 
notice to Indian tribes under the provisions of section 6. 
Although Indian tribes do not currently receive notice of 
voluntary proceedings in most States, several States have 
explicitly recognized and successfully implemented a 
requirement that similar notice be provided in voluntary 
proceedings.\30\
---------------------------------------------------------------------------
    \30\ See, e.g., Wash. Rev. Code Ann. 13.34.245(3), (5); 
26.33.090(2); 26.33.110(2); 26.33.240(1) (West Supp. 1989); Minn. Stat. 
Ann. 257.352(2), (3); 257.353(2), (3) (West Supp. 1989); Okla. 10 O.S. 
1991, section 40.1 (as amended in 1994); Mich. Court Rules 5.980(A).
---------------------------------------------------------------------------

Content of notice to Indian tribes

    Section 7 requires that the notice provided to Indian 
tribes must include the name of the Indian child involved and 
the actual or anticipated date and place of birth of the child, 
along with an identification, if known after reasonable 
inquiry, of the Indian parent, grandparent, and extended family 
members of the Indian child. The notice must also provide 
information about court proceedings pending in State court, if 
any, and the parties in such proceedings. The notice must 
inform the Indian tribe that it has the right to intervene in 
the court proceeding and must inform the tribe as to what 
actions or inactions by the tribe will lead to a waiver of the 
tribal right to intervene.

Sanctions against fraudulent representation

    Section 9 provides for criminal sanctions to be applied to 
anyone who assists a person to lie about their Indian ancestry 
or the ancestry of a child for the purposes of avoiding the 
application of the ICWA. The Committee intends that these 
sanctions will apply to any individual, other than a birth 
parent, who encourages or facilitates fraudulent 
representations concerning whether or not a child or parent is 
an Indian for the purposes of the ICWA, who conspires to 
encourage or facilitate such representations or omissions, or 
who aids or abets such representations or omissions having 
reason to know that such representations are being made and may 
have a material impact upon the application of the ICWA. 
Criminal penalties are necessary to help assure compliance with 
the provisions of the ICWA which are triggered whenever an 
Indian child is involved in a child custody proceeding. Willful 
misrepresentations of Indian identity can serve to thwart the 
application of the Act and the intent of the Congress. The 
criminal sanctions will discourage attorneys and others from 
circumventing the ICWA. There is considerable anecdotal 
evidence that birth parents are often told by adoption 
attorneys and agencies that they should not reveal that the 
child may be an Indian child in order to avoid the application 
of the ICWA. Indeed, in the In re Bridget R case,\31\ which 
helped give rise to legislation to amend the Indian Child 
Welfare Act in this Congress, there were allegations that the 
original adoption attorney involved facilitated the very kind 
of deception that the criminal sanctions in section 9 are 
intended to deter. The Committee received testimony which 
indicates that the birth father of the children in that case 
apparently indicated that he was Indian on the original 
adoption information sheet, was then informed by an attorney 
that this would delay the adoption, and then filled out a new 
form omitting the information about his Indian identity which 
was then used by this attorney for the purposes of the adoption 
even though the attorney knew that this information was not 
true. The Committee intends to bring to bear against such 
behavior the sanctions of criminal law.
---------------------------------------------------------------------------
    \31\ In re Bridget R., 41 Cal. App. 4th 1483 (2nd Dist. 1996).
---------------------------------------------------------------------------

                              Conclusions

    The ICWA was originally enacted to provide for procedural 
and substantive protection for Indian children and families and 
to recognize and formalize a substantial role for Indian tribes 
in cases involving involuntary and voluntary child custody 
proceedings, whether on or off the Indian reservation. The bill 
approved by this Committee is entirely consistent with, and in 
furtherance of, these same goals which continue to be of vital 
important to the well-being of Indian children, Indian 
families, and Indian tribes. The Committee has concluded that 
S. 1962, as a compromise, will greatly improve the procedures 
required under the ICWA in cases of voluntary child custody and 
adoption proceedings. While these voluntary cases are but a 
small fraction of the cases in which the Act has been applied, 
they have been the ones which have gained much of the public 
scrutiny the ICWA has experienced in recent years. In adopting 
S. 1962, the Committee is taking a measured and limited 
approach, actively crafted by representatives of both the 
tribal governments and the adoption community, to address what 
have become identified as the problems with how the ICWA 
functions in the context of voluntary adoptions.

                          Legislative History

    On June 26, 1996, the Committee held a hearing on a draft 
discussion bill which served as the basis of S. 1962. S. 1962 
was introduced on July 16, 1996 and referred to the Committee 
on Indian Affairs. On July 24, 1996, the Committee on Indian 
Affairs, by a vote of 13 for, 0 against, and 1 abstention, 
ordered the bill reported with the recommendation that the 
Senate pass the bill as reported.

            Committee Recommendation and Tabulation of Vote

    In an open business session on June 24, 1996, the Committee 
on Indian Affairs, by a vote of 13 ayes, 0 nays, and 1 
abstention, ordered the bill reported with the recommendation 
that the Senate pass the bill as reported.

                      Section-by-Section Analysis

Section 1. Short title; references

    Section 1 cites the short title of the bill as the ``Indian 
Child Welfare Act Amendments of 1996'' and clarifies that 
references in the bill to amendment or repeal relate to the 
Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

Section 2. Exclusive jurisdiction

    Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify 
that an Indian tribe retains exclusive jurisdiction over any 
child otherwise made a ward of the tribal court when the child 
subsequently changes residence or domicile for treatment or 
other purposes.

Section 3. Intervention in State court proceedings

    Section 3 makes a conforming technical amendment 
conditioning an Indian tribe's existing right of intervention 
under 25 U.S.C. 1911(c) to the time limitations added by 
Section 8 of the bill.

Section 4. Voluntary termination of parental rights

    Section 4 amends 25 U.S.C. 1913(a) to clarify that the Act 
applies to voluntary consents in adoptive, preadoptive and 
foster care placements. In addition, section 4 adds a 
requirement that the presiding judge certify that any attorney 
or public or private agency facilitating the voluntary 
termination of parental rights or adoptive placement has 
informed the birth parents of the placement options available 
and of the applicable provisions of the Indian Child Welfare 
Act, and has certified that the birth parents will be notified 
within 10 days of any change in the adoptive placement. An 
Indian custodian vested with legal authority to consent to an 
adoptive placement is to be treated as a parent for purposes of 
these amendments, including the requirements governing notice 
provided or received and consent given or revoked.

Section 5. Withdrawal of consent

    Section 5 amends the Act by adding several new paragraphs 
to 25 U.S.C. 1913(b). The additional paragraphs would set 
limits on when an Indian birth parent may withdraw his or her 
consent to an adoption. Paragraph (2) would permit revocation 
of parental consent in only two instances before a final decree 
of adoption is entered except as provided in paragraph (4). 
First, a birth parent could revoke his or her consent if the 
original placement specified by the birth parent terminates 
before a final decree of adoption has been entered. Second, a 
birth parent could revoke his or her consent if the revocation 
is made before the end of a 30 day period that begins on the 
day that parent received notice of the commencement of the 
adoption proceeding or before the end of a 180 day period that 
begins on the day the Indian tribe has received notice of the 
adoptive placement, whichever period ends first. Paragraph (3) 
provides that upon the effective revocation of consent by a 
birth parent under the terms of paragraph (2), the child shall 
be returned to that birth parent. Paragraph (4) requires that 
if a birth parent has not revoked his or her consent within the 
time frames set forth in paragraph (2), thereafter he or she 
may revoke consent only pursuant to applicable State law or 
upon a finding by a court of competent jurisdiction that the 
consent was obtained through fraud or duress. Paragraph (5) 
provides that upon the effective revocation of consent by a 
birth parent under the terms of paragraph (4)(B), the child 
shall be returned to that birth parent and the decree vacated. 
Paragraph (6) provides that no adoption that has been in effect 
for a period of longer than or equal to two years can be 
invalidated under any of the conditions set forth in this 
section, including those related to a finding of duress or 
fraud.

Section 6. Notice to Indian tribes

    Section 6 requires notice to be provided to the Indian 
tribe by any person seeking to secure the voluntary placement 
of an Indian child or the voluntary termination of the parental 
rights of a parent of an Indian child. The notice must be 
provided no later than 100 days after a foster care placement 
occurs, no later than five days after a preadoptive or adoptive 
placement occurs, no later than ten days after the commencement 
of a proceeding for the termination of parental rights, and no 
later than ten days after the commencement of an adoption 
proceeding. Notice may be given prior to the birth of an Indian 
child if a particular placement is contemplated. If an Indian 
birth parent is discovered after the applicable notice periods 
have otherwise expired, despite a reasonable inquiry having 
been made on or before the commencement of the placement about 
whether the child may be an Indian child, the time limitations 
placed by section 8 upon the rights of an Indian tribe to 
intervene apply only if the party discovering the Indian birth 
parent provides notice to the Indian tribe under this section 
not later than ten days after making the discovery.

Section 7. Content of notice

    Section 7 requires that the notice provided under section 6 
include the name of the Indian child involved and the actual or 
anticipated date and place of birth of the child, along with an 
identification, if known after reasonable inquiry, of the 
Indian parent, grandparent, and extended family members of the 
Indian child. The notice must also provide information on the 
parties and court proceedings pending in State court. The 
notice must inform the identified Indian tribe that it may have 
the right to intervene in the court proceeding, and must 
inquire whether the Indian tribe intends to intervene or waive 
its rights to intervene. Finally, the notice must state that if 
the Indian tribe fails to respond by the statutory deadline, 
the right of that Indian tribe to intervene will be considered 
to have been waived.

Section 8. Intervention by Indian tribe

    Section 8 adds four new subsections to 25 U.S.C. 1913, 
which would limit the right of an Indian tribe to intervene in 
a court proceeding involving foster care placement, voluntary 
adoption, or termination of parental rights and which would 
authorize voluntary agreements for enforceable rights of 
visitation.
    Under subsection (e), an Indian tribe could intervene in a 
voluntary proceeding to terminate parental rights only if it 
has filed a notice of intent to intervene or a written 
objection not later than 30 days after receiving the notice 
required by sections 6 and 7. An Indian tribe could intervene 
in a voluntary adoption proceeding only if it has filed a 
notice of intent to intervene or a written objection not later 
than the later of 90 days after receiving notice of the 
adoptive placement or 30 days after receiving notice of the 
adoption proceeding pursuant to sections 6 and 7. If these 
notice requirements are not complied with, the Indian tribe 
could intervene at any time. However, an Indian tribe may no 
longer intervene in a proceeding after it has provided written 
notice to a State court of its intention not to intervene or of 
its determination that neither the child nor any birth parent 
is a member of that Indian tribe. Finally, subsection (e) would 
require that an Indian tribe accompany a motion for 
intervention with a certification that documents the tribal 
membership or eligibility for membership of the Indian child 
under applicable tribal law.
    Subsection (f) would clarify that the act or failure to act 
of an Indian tribe to intervene or not intervene under 
subsection (e) shall not affect any placement preferences or 
other rights accorded to individuals under the Act, nor may 
this preclude an Indian tribe from intervening in a case in 
which a proposed adoptive placement is changed.
    Subsection (g) would prohibit any court proceeding 
involving the voluntary termination of parental rights or 
adoption of an Indian child from being conducted before the 
date that is 30 days after the Indian tribe has received notice 
under sections 6 and 7.
    Subsection (h) would authorize courts to approve, as part 
of the adoption decree of an Indian child, a voluntary 
agreement made by an adoptive family that a birth parent, a 
member of the extended family, or the Indian tribe will have an 
enforceable right of visitation or continued contact after 
entry of the adoption decree. However, failure to comply with 
the terms of such agreement may not be considered grounds for 
setting aside the adoption decree.

Section 9. Fraudulent representation

    Section 9 would add a new section 114 to the Indian Child 
Welfare Act that would apply criminal sanctions to any person 
other than a birth parent who--(1) knowingly and willfully 
falsifies, conceals, or covers up a material fact concerning 
whether, for purposes of the Act, a child is an Indian child or 
a parent is an Indian; or (2) makes any false or fraudulent 
statement, omission, or representation, or falsifies a written 
document knowing that the document contains a false or 
fraudulent statement or entry relating to a material fact 
described in (1). Upon conviction of an initial violation, a 
person shall be subjected to the fine prescribed in 18 U.S.C. 
3571 for a Class A misdemeanor (not more than $100,000), 
imprisonment for not more than 1 year, or both. Upon conviction 
of any subsequent violation, a person shall be subjected to the 
fine prescribed in 18 U.S.C. 3751 for a felony (not more than 
$250,000), imprisonment for not more than 5 years, or both.

                   Cost and Budgetary Considerations

    The cost estimate for S. 1962, as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 25, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 1962, the Indian Child Welfare Act Amendments of 
1996, as ordered reported by the Senate Committee on Indian 
Affairs on July 24, 1996.
    S. 1962 would amend the Indian Child Welfare Act, including 
provisions relating to the voluntary termination of parental 
rights of Indian parents in adoption and foster care cases. CBO 
estimates that this bill would have no federal budgetary 
effects. Since enactment of S. 1962 would not affect direct 
spending or receipts, pay-as-you-go procedures would not apply 
to the bill.
    Section 4 of the Unfunded Mandates Reform Act of 1995 
excludes from the application of that act legislative 
provisions that enforce the constitutional rights of 
individuals. CBO has determined that this bill fits within that 
exclusion because it enforces the due-process rights of parties 
involved in the adoption of a Native American child.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee has concluded that 
enactment of S. 1962 will create only de minimis regulatory or 
paperwork impacts.

                        Executive Communications

    The Committee has received a letter in support for S. 1962 
from the Department of Justice on July 23, 1996 and a letter of 
support for S. 1962 from the Department of the Interior on July 
24, 1996, which letters are set forth below:

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, July 23, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Thank you for the opportunity to provide 
the Department of Justice's views on S. 1962, The Indian Child 
Welfare Act Amendments of 1996.
    The Department of Justice has only a limited role in the 
litigation of Indian Child Welfare Act, 25 U.S.C. 
Sec. Sec. 1901 et seq. (``ICWA'') cases, so our knowledge of 
how, and how well, ICWA works is premised largely on the 
reports of the Departments of Health and Human Services and the 
Interior. They report that the ICWA has generally worked well, 
especially when parties are informed about ICWA and it is 
applied in a timely manner. Consistent with our institutional 
role, we have reviewed S. 1962 based on our experience with 
civil and criminal enforcement, the United States' commitment 
to supporting tribal sovereignty, and basic principles of 
statutory construction. We hope the following comments will 
assist the Committee in considering the bill.
    The Department supports S. 1962 and the important goals of 
ICWA to promote the best interests of Indian children and the 
stability and security of Indian tribes and families. We 
support the bill because it would clarify ICWA, establish some 
deadlines to provide certainty and reduce delay in adoption 
proceedings, and strengthen Federal enforcement tools to ensure 
compliance with ICWA. We understand that S. 1962 is, to a large 
extent, based on the carefully crafted compromise agreement 
between Indian tribes and adoption attorneys.
    Regarding the provision in Section 4, ``Voluntary 
Termination of Parental Rights,'' which would require courts to 
certify that attorneys who facilitate adoptive placements have 
advised the natural parents of an Indian child concerning the 
scope of ICWA, see Sec. 4(B), the Department has reservations 
about this provision to the extent that it might be construed 
to limit an attorney's ability to discuss the feasibility of 
various options with his or her client.
    Otherwise, the Department believes S. 1962 represents a 
sound approach to amending ICWA to address the concerns of its 
critics without compromising tribal self-government or the best 
interests of Indian children.
    If we may be of additional assistance, please do not 
hesitate to call upon us. The Office of Management and Budget 
has advised that there is no objection to the submission of 
this letter from the standpoint of the Administration's 
program.
            Sincerely,
                                             Annett Harkins
                     (For Andrew Fois, Assistant Attorney General).
                                ------                                

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, July 24, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: We understand that your Committee will 
consider S. 1962, the ``Indian Child Welfare Act (ICWA) 
Amendments of 1996'' on July 24, 1996. We support the enactment 
of S. 1962, and commend the collaborative efforts of Indian 
tribes and organizations, adoption attorneys and congressional 
staff on this legislation, designed to address problems related 
to the adoption of Indian children.
    S. 1962 provides further procedural requirements for 
individuals, agencies, or tribes involved in the voluntary 
adoption process and clarifies their respective 
responsibilities. It also facilitates compliance with the 
requirements of the ICWA.
    We would recommend that S. 1962 be narrowed in one respect. 
Section 6 of S. 1962 amends section 103(c)(1) of ICWA to 
require that the tribe be given notice of the voluntary foster 
care or adoptive placement of an Indian child. While we have no 
disagreement with this amendment as it relates to adoptive 
placements, we question its advisability in connection with 
foster care placements. Under current law, these placements are 
not covered by ICWA if the parent retains the right to have the 
child returned upon demand. The parent is thus able to use 
temporary foster care placements as a respite while seeking to 
resolve the problems that made the placement necessary. We 
recommend that the Committee leave current law unchanged with 
respect to foster care, in order to support Indian parents' 
exercise of responsibility in resolving their own problems and 
of control over the care of their children.
    S. 1962 is a preferable alternative to Title III of H.R. 
3286. It protects the sovereign status of Indian tribes and 
preserves the intent of the ICWA.
    The Office of Management and Budget has advised that it has 
no objection to the submission of this letter from the 
standpoint of the Administration's program. If we can be of 
additional assistance please feel free to call upon us.
            Sincerely,
                                               Ada E. Deer,
                               Assistant Secretary--Indian Affairs.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 1962 will result in the following changes in 25 
U.S.C. Sec. 1901 et seq., with existing language which is to be 
deleted in black brackets and the new language to be added in 
italic:

                           25 U.S.C. 1911(a)

Sec. 1911. Indian tribe jurisdiction over Indian child custody 
                    proceedings

    (a)(1) Exclusive jurisdiction--
    An Indian tribe shall have jurisdiction exclusive as to any 
State over any child custody proceeding involving an Indian 
child who resides or is domiciled within the reservation of 
such tribe, except where such jurisdiction is otherwise vested 
in the State by existing Federal law. [Where an Indian child is 
a ward of a tribal court, the Indian tribe shall retain 
exclusive jurisdiction, notwithstanding the residence of 
domicile of the child.]
    (2) An Indian tribe shall retain exclusive jurisdiction 
over any child custody proceeding that involves an Indian 
child, notwithstanding any subsequent change in the residence 
or domicile of the Indian child, in any case in which the 
Indian child--
          (A) resides or is domiciled within the reservation of 
        the Indian tribe and is made a ward of a tribal court 
        of that Indian tribe; or
          (B) after a transfer of jurisdiction is carried out 
        under subsection (b), becomes a ward of a tribal court 
        of that Indian tribe.
          * * * * * * *

                           25 U.S.C. 1911(c)

    (c) State court proceedings; intervention--
    [In any State court proceeding] Except as provided in 
section 103(e), in any State court proceeding for the foster 
care placement of, or termination of parental rights to, an 
Indian child, the Indian custodian of the child and the Indian 
child's tribe shall have a right to intervene at any point in 
the proceeding.
          * * * * * * *

                           25 U.S.C. 1913(a)

Sec. 1913. Parental rights, voluntary termination

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

                           25 U.S.C. 1913(b)

    (b) Foster care placement; withdrawal of consent--
          (1) Any parent or Indian custodian may withdraw 
        consent to a foster care placement under State law at 
        any time and, upon such withdrawal, the child shall be 
        returned to the parent or Indian custodian.
          (2) Except as provided in paragraph (4), a consent to 
        adoption of an Indian child or voluntary termination of 
        parental rights to an Indian child may be revoked, only 
        if--
                  (A) no final decree of adoption has been 
                entered; and
                  (B)(i) the adoptive placement specified by 
                the parent terminates; or
                  (ii) the revocation occurs before the later 
                of the end of--
                          (I) the 180-day period beginning on 
                        the date on which the Indian child's 
                        tribe receives written notice of the 
                        adoptive placement provided in 
                        accordance with the requirements of 
                        subsections (c) and (d); or
                          (II) the 30-day period beginning on 
                        the date on which the parent who 
                        revokes consent receives notice of the 
                        commencement of the adoption proceeding 
                        that includes an explanation of the 
                        revocation period specified in this 
                        subclause.
          (3) The Indian child with respect to whom a 
        revocation under paragraph (2) is made shall be 
        returned to the parent who revokes consent immediately 
        upon an effective revocation under that paragraph.
          (4) Subject to paragraph (6), if, by the end of the 
        applicable period determined under subclause (I) or 
        (II) of paragraph (2)(B)(ii), a consent to adoption or 
        voluntary termination of parental rights has not been 
        revoked, beginning after that date, a parent may revoke 
        such a consent only--
                  (A) pursuant to applicable State law; or
                  (B) if the parent of the Indian child 
                involved petitions a court of competent 
                jurisdiction, and the court finds that the 
                consent to adoption or voluntary termination of 
                parental rights was obtained through fraud or 
                duress.
          (5) Subject to paragraph (6), if a consent to 
        adoption or voluntary termination of parental rights is 
        revoked under paragraph (4)(B), with respect to the 
        Indian child involved--
                  (A) in a manner consistent with paragraph 
                (3), the child shall be returned immediately to 
                the parent who revokes consent; and
                  (B) if a final decree of adoption has been 
                entered, that final decree shall be vacated
          (6) Except as otherwise provided under applicable 
        State law, no adoption that has been in effect for a 
        period longer than or equal to 2 years may be 
        invalidated under this subsection.
          * * * * * * *

                           25 U.S.C. 1913(c)

    [(c) Voluntary termination of parental rights or adoptive 
placement; withdrawal of consent; return of custody--
    In any voluntary proceeding for termination of parental 
rights to, or adoptive placement of, an Indian child, the 
consent of the parent may be withdrawn for any reason at any 
time prior to the entry of a final decree of termination or 
adoption, or the case may be, and the child shall be returned 
to the parent.]
    (c)(1) A party that seeks the voluntary placement of an 
Indian child or the voluntary termination of the parental 
rights of a parent of an Indian child shall provide written 
notice of the placement or proceeding to the Indian child's 
tribe. A notice under this subsection shall be sent by 
registered mail (return receipt requested) to the Indian 
child's tribe, not later than the applicable date specified in 
paragraph (2) or (3).
    (2)(A) Except as provided in paragraph (3), notice shall be 
provided under paragraph (1) in each of the following cases:
          (i) Not later than 100 days after any foster care 
        placement of an Indian child occurs.
          (ii) Not later than 5 days after any preadoptive or 
        adoptive placement of an Indian child.
          (iii) Not later than 10 days after the commencement 
        of any proceeding for a termination of parental rights 
        to an Indian child.
          (iv) Not later than 10 days after the commencement of 
        any adoption proceeding concerning an Indian child.
    (B) A notice described in subparagraph (A)(ii) may be 
provided before the birth of an Indian child if a party 
referred to in paragraph (1) contemplates a specific adoptive 
or preadoptive placement.
    (3) If, after the expiration of the applicable period 
specified in paragraph (2), a party referred to in paragraph 
(1) discovers that the child involved may be an Indian child--
          (A) the party shall provide notice under paragraph 
        (1) not later than 10 days after the discovery; and
          (B) any applicable time limit specified in subsection 
        (e) shall apply to the notice provided under 
        subparagraph (A) only if the party referred to in 
        paragraph (1) has, on or before commencement of the 
        placement made reasonable inquiry concerning whether 
        the child involved may be an Indian child.
          * * * * * * *

                           25 U.S.C. 1913(d)

    [(d) Collateral attack; vacation of decree and return of 
custody; limitations--
    After the entry of a final decree of adoption of an Indian 
child in any State court, the parent may withdraw consent 
thereto upon the grounds that consent was obtained through 
fraud or duress and may petition the court to vacate such 
decree. Upon a finding that such consent was obtained through 
fraud or duress, the court shall vacate such decree and return 
the child to the parent. No adoption which has been effective 
for at least two years may be invalidated under the provisions 
of this subsection unless otherwise permitted under State law.]
    (d) Each written notice provided under subsection (c) shall 
contain the following:
          (1) The name of the Indian child involved, and the 
        actual or anticipated date and place of birth of the 
        Indian child.
          (2) A list containing the name, address, date of 
        birth, and (if applicable) the maiden name of each 
        Indian parent and grandparent of the Indian child, if--
                  (A) known after inquiry of--
                          (i) the birth parent placing the 
                        child or relinquishing parental rights; 
                        and
                          (ii) the other birth parent (if 
                        available); or
                  (B) otherwise ascertainable through other 
                reasonable inquiry.
          (3) A list containing the name and address of each 
        known extended family member (if any), that has 
        priority in placement under section 105.
          (4) A statement of the reasons why the child involved 
        may be an Indian child.
          (5) The names and addresses of the parties involved 
        in any applicable proceeding in a State court.
          (6)(A) The name and address of the State court in 
        which a proceeding referred to in paragraph (5) is 
        pending, or will be filed; and
          (B) the date and time of any related court proceeding 
        that is scheduled as of the date on which the notice is 
        provided under this subsection.
          (7) If any, the tribal affiliation of the prospective 
        adoptive parents.
          (8) The name and address of any public or private 
        social service agency or adoption agency involved.
          (9) An identification of any Indian tribe with 
        respect to which the Indian child or parent may be a 
        member.
          (10) A statement that each Indian tribe identified 
        under paragraph (9) may have the right to intervene in 
        the proceeding referred to in paragraph (5).
          (11) An inquiry concerning whether the Indian tribe 
        that receives notice under subsection (c) intends to 
        intervene under subsection (e) or waive any such right 
        to intervention.
          (12) A statement that, if the Indian tribe that 
        receives notice under subsection (c) fails to respond 
        in accordance with subsection (e) by the applicable 
        date specified in that subsection, the right of that 
        Indian tribe to intervene in the proceeding involved 
        shall be considered to have been waived by that Indian 
        tribe.
          * * * * * * *

                             25 U.S.C. 1913

    (e)(1) The Indian child's tribe shall have the right to 
intervene at any time in a voluntary child custody proceeding 
in a State court only if--
          (A) in the case of a voluntary proceeding to 
        terminate parental rights, the Indian tribe filed a 
        notice of intent to intervene or a written objection to 
        the termination, not later than 30 days after receiving 
        notice that was provided in accordance with the 
        requirements of subsections (c) and (d); or
          (B) in the case of a voluntary adoption proceeding, 
        the Indian tribe filed a notice of intent to intervene 
        or a written objection to the adoptive placement, not 
        later than the later of--
                  (i) 90 days after receiving notice of the 
                adoptive placement that was provided in 
                accordance with the requirements of subsections 
                (c) and (d); or
                  (ii) 30 days after receiving a notice of the 
                voluntary adoption proceeding that was provided 
                in accordance with the requirements of 
                subsections (c) and (d).
    (2)(A) Except as provided in subparagraph (B), the Indian 
child's tribe shall have the right to intervene at any time in 
a voluntary child custody proceeding in a State court in any 
case in which the Indian tribe did not receive written notice 
provided in accordance with the requirements of subsections (c) 
and (d).
    (B) An Indian tribe may not intervene in any voluntary 
child custody proceeding in a State court if the Indian tribe 
gives written notice to the State court or any party involved 
of--
          (i) the intent of the Indian tribe not to intervene 
        in the proceeding; or
          (ii) the determination by the Indian tribe that--
                  (I) the child involved is not a member of, or 
                is not eligible for membership in, the Indian 
                tribe; or
                  (II) neither parent of the child is a member 
                of the Indian tribe.
    (3) If an Indian tribe files a motion for intervention in a 
State court under this subsection, the Indian tribe shall 
submit to the court, at the same time as the Indian tribe files 
that motion, a certification that includes a statement that 
document, with respect to the Indian child involved, the 
membership or eligibility for membership of that Indian child 
in the Indian tribe under applicable tribal law.
    (f) Any act or failure to act of an Indian tribe under 
subsection (e) shall not--
          (1) affect any placement preference or other right of 
        any individual under this Act;
          (2) preclude the Indian tribe of the Indian child 
        that is the subject of an action taken by the Indian 
        tribe under subsection (e) from intervening in a 
        proceeding concerning that Indian child if a proposed 
        adoptive placement of that Indian child is changed 
        after that action is taken; or
          (3) except as specifically provided in subsection 
        (e), affect the applicability of this Act.
    (g) Notwithstanding any other provision of law, no 
proceeding for a voluntary termination of parental rights or 
adoption of an Indian child may be conducted under applicable 
State law before the date that is 30 days after the Indian 
child's tribe receives notice of that proceeding that was 
provided in accordance with the requirements of subsections (c) 
and (d).
    (h) Notwithstanding any other provision of law (including 
any State law)--
          (1) a court may approve, as part of an adoption 
        decree of an Indian child, an agreement that states 
        that a birth parent, an extended family member, or the 
        Indian child's tribe shall have an enforceable right of 
        visitation or continued contact with the Indian child 
        after the entry of a final decree of adoption; and
          (2) the failure to comply with any provision of a 
        court order concerning the continued visitation or 
        contact referred to in paragraph (1) shall not be 
        considered to be grounds for setting aside a final 
        decree of adoption.
          * * * * * * *

                             25 U.S.C. 1924

Sec. 114. Fraudulent Representation

    (a) In General.--With respect to any proceeding subject to 
this Act involving an Indian child or a child who may be 
considered to be an Indian child for purposes of this Act, a 
person, other than a birth parent of the child, shall, upon 
conviction, be subject to a criminal sanction under subsection 
(b) if that person--
          (1) knowingly and willfully falsifies, conceals, or 
        covers up by any trick, scheme, or device, a material 
        fact concerning whether, for purposes of this Act--
                  (A) a child is an Indian child; or
                  (B) a parent is an Indian; or
          (2)(A) makes any false, fictitious, or fraudulent 
        statement, omission, or representation; or
          (B) falsifies a written document knowing that the 
        document contains a false, fictitious, or fraudulent 
        statement or entry relating to a material fact 
        described in paragraph (1).
    (b) Criminal Sanctions.--The criminal sanctions for a 
violation referred to in subsection (a) are as follows:
          (1) For an initial violation, a person shall be fined 
        in accordance with section 3571 of title 18, United 
        States Code, or imprisoned not more than 1 year, or 
        both.
          (2) For any subsequent violation, a person shall be 
        fined in accordance with section 3571 of title 18, 
        United States Code, or imprisoned not more than 5 
        years, or both.
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