II

104TH CONGRESS

2D SESSION S. 1962

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

IN THE SENATE OF THE UNITED STATES

JULY 16, 1996

Mr. MCCAIN (for himself, Mr. INOUYE, Mr. GLENN, Mr. THOMAS, Mr. DOMENICI, Mrs. KASSEBAUM, Mr. COCHRAN, Mr. MURKOWSKI, Mr. CAMPBELL, and Mr. SIMON) introduced the following bill; which was read twice

and referred to the Committee on Indian Affairs

A BILL

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

other purposes.

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

3 SECTION 1. SHORT TITLE; REFERENCES.

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

5 ‘‘Indian Child Welfare Act Amendments of 1996’’.

6 (b) REFERENCES.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment

8 to or repeal of a section or other provision, the reference

9 shall be considered to be made to a section or other provi-
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1 sion of the Indian Child Welfare Act of 1978 (25 U.S.C.

2 1901 et seq.).

3 SEC. 2. EXCLUSIVE JURISDICTION.

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

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

6 (2) by striking the last sentence and inserting

7 the following:

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

9 over any child custody proceeding that involves an Indian

10 child, notwithstanding any subsequent change in the resi11 dence or domicile of the Indian child, in any case in which

12 the Indian child—

13 ‘‘(A) resides or is domiciled within the reserva14 tion of the Indian tribe and is made a ward of a

15 tribal court of that Indian tribe; or

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

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

18 court of that Indian tribe.’’.

19 SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

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

21 striking ‘‘In any State court proceeding’’ and inserting

22 ‘‘Except as provided in section 103(e), in any State court

23 proceeding’’.

24 SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

25 Section 103(a) (25 U.S.C. 1913(a)) is amended—
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1 (1) by inserting ‘‘(1)’’ before ‘‘Where’’;

2 (2) by striking ‘‘foster care placement’’ and in3 serting ‘‘foster care or preadoptive or adoptive place4 ment’’;

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

6 terms’’ and inserting the following: ‘‘judge’s certifi7 cate that—

8 ‘‘(A) the terms’’;

9 (4) by striking ‘‘or Indian custodian.’’ and in10 serting ‘‘or Indian custodian; and’’ ;

11 (5) by inserting after subparagraph (A), as des12 ignated by paragraph (3) of this subsection, the fol13 lowing new subparagraph:

14 ‘‘(B) any attorney or public or private agency

15 that facilitates the voluntary termination of parental

16 rights or preadoptive or adoptive placement has in17 formed the natural parents of the placement options

18 with respect to the child involved, has informed

19 those parents of the applicable provisions of this

20 Act, and has certified that the natural parents will

21 be notified within 10 days of any change in the

22 adoptive placement.’’;

23 (6) by striking ‘‘The court shall also certify’’

24 and inserting the following:

25 ‘‘(2) The court shall also certify’’;
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1 (7) by striking ‘‘Any consent given prior to,’’

2 and inserting the following:

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

4 (8) by adding at the end the following new

5 paragraph:

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

7 to consent to an adoptive placement shall be treated as

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

9 adoption provisions of this Act.’’.

10 SEC. 5. WITHDRAWAL OF CONSENT.

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

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

13 (2) by adding at the end the following new

14 paragraphs:

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

16 to adoption of an Indian child or voluntary termination

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

18 if—

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

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

22 parent terminates; or

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

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

2 date on which the Indian child’s tribe receives

3 written notice of the adoptive placement pro4 vided in accordance with the requirements of

5 subsections (c) and (d); or

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

7 date on which the parent who revokes consent

8 receives notice of the commencement of the

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

11 subclause.

12 ‘‘(3) The Indian child with respect to whom a revoca13 tion under paragraph (2) is made shall be returned to the

14 parent who revokes consent immediately upon an effective

15 revocation under that paragraph.

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

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

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

19 termination of parental rights has not been revoked, be20 ginning after that date, a parent may revoke such a con21 sent only—

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

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

24 petitions a court of competent jurisdiction, and the

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

2 fraud or duress.

3 ‘‘(5)(A) Subject to paragraph (6), if a consent to

4 adoption or voluntary termination of parental rights is re5 voked under paragraph (4)(B), with respect to the Indian

6 child involved—

7 ‘‘(i) in a manner consistent with paragraph (3),

8 the child shall be returned immediately to the parent

9 who revokes consent; and

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

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

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

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

15 this subsection.’’.

16 SEC. 6. NOTICE TO INDIAN TRIBES.

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

18 read as follows:

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

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

22 written notice of the placement or proceeding to the Indian

23 child’s tribe. A notice under this subsection shall be sent

24 by registered mail (return receipt requested) to the Indian
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1 child’s tribe, not later than the applicable date specified

2 in paragraph (2) or (3).

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

4 shall be provided under paragraph (1) in each of the fol5 lowing cases:

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

7 care placement of an Indian child occurs.

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

9 preadoptive or adoptive placement of an Indian

10 child.

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

13 parental rights to an Indian child.

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

16 an Indian child.

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

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

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

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

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

3 and

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

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

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

8 the placement made reasonable inquiry concerning

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

10 SEC. 7. CONTENT OF NOTICE.

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

12 read as follows:

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

14 (c) shall contain the following:

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

16 the actual or anticipated date and place of birth of

17 the Indian child.

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

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

20 Indian parent and grandparent of the Indian child,

21 if—

22 ‘‘(A) known after inquiry of—

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

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

3 ‘‘(B) otherwise ascertainable through other

4 reasonable inquiry.

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

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

7 has priority in placement under section 105.

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

9 involved may be an Indian child.

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

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

13 court in which a proceeding referred to in paragraph

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

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

16 proceeding that is scheduled as of the date on which

17 the notice is provided under this subsection.

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

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

21 private social service agency or adoption agency in22 volved.

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

24 respect to which the Indian child or parent may be

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

4 (5).

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

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

8 such right to intervention.

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

10 receives notice under subsection (c) fails to respond

11 in accordance with subsection (e) by the applicable

12 date specified in that subsection, the right of that

13 Indian tribe to intervene in the proceeding involved

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

16 SEC. 8. INTERVENTION BY INDIAN TRIBE.

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

18 at the end the following new subsections:

19 ‘‘(e)(1) The Indian child’s tribe shall have the right

20 to intervene at any time in a voluntary child custody pro21 ceeding in a State court only if—

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

23 terminate parental rights, the Indian tribe filed a

24 notice of intent to intervene or a written objection

25 to the termination, not later than 30 days after re-
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1 ceiving notice that was provided in accordance with

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

3 ‘‘(B) in the case of a voluntary adoption pro4 ceeding, the Indian tribe filed a notice of intent to

5 intervene or a written objection to the adoptive

6 placement, not later than the later of—

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

8 adoptive placement that was provided in accord9 ance with the requirements of subsections (c)

10 and (d); or

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

12 voluntary adoption proceeding that was pro13 vided in accordance with the requirements of

14 subsections (c) and (d).

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

16 Indian child’s tribe shall have the right to intervene at

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

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

19 written notice provided in accordance with the require20 ments of subsections (c) and (d).

21 ‘‘(B) An Indian tribe may not intervene in any vol22 untary child custody proceeding in a State court if the

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

24 party involved of—
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1 ‘‘(i) the intent of the Indian tribe not to inter2 vene in the proceeding; or

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

4 that—

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

6 or is not eligible for membership in, the Indian

7 tribe; or

8 ‘‘(II) neither parent of the child is a mem9 ber of the Indian tribe.

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

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

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

13 tribe files that motion, a certification that includes a state14 ment that documents, with respect to the Indian child in15 volved, the membership or eligibility for membership of

16 that Indian child in the Indian tribe under applicable trib17 al law.

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

19 subsection (e) shall not—

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

21 right of any individual under this Act;

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

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

24 Indian tribe under subsection (e) from intervening in

25 a proceeding concerning that Indian child if a pro-
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1 posed adoptive placement of that Indian child is

2 changed after that action is taken; or

3 ‘‘(3) except as specifically provided in sub4 section (e), affect the applicability of this Act.

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

6 proceeding for a voluntary termination of parental rights

7 or adoption of an Indian child may be conducted under

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

9 the Indian child’s tribe receives notice of that proceeding

10 that was provided in accordance with the requirements of

11 subsections (c) and (d).

12 ‘‘(h) Notwithstanding any other provision of law (in13 cluding any State law)—

14 ‘‘(1) a court may approve, as part of an adop15 tion decree of an Indian child, an agreement that

16 states that a birth parent, an extended family mem17 ber, or the Indian child’s tribe shall have an enforce18 able right of visitation or continued contact with the

19 Indian child after the entry of a final decree of

20 adoption; and

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

22 a court order concerning the continued visitation or

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

24 considered to be grounds for setting aside a final de25 cree of adoption.’’.
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1 SEC. 9. FRAUDULENT REPRESENTATION.

2 Title I of the Indian Child Welfare Act of 1978 is

3 amended by adding at the end the following new section:

4 ‘‘SEC. 114. FRAUDULENT REPRESENTATION.

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

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

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

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

9 child, shall, upon conviction, be subject to a criminal sanc10 tion under subsection (b) if that person—

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

12 or covers up by any trick, scheme, or device, a mate13 rial fact concerning whether, for purposes of this

14 Act—

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

16 ‘‘(B) a parent is an Indian; or

17 ‘‘(2)(A) makes any false, fictitious, or fraudu18 lent statement, omission, or representation; or

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

20 the document contains a false, fictitious, or fraudu21 lent statement or entry relating to a material fact

22 described in paragraph (1).

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

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

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

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

2 year, or both.

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

4 shall be fined in accordance with section 3571 of

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

6 than 5 years, or both.’’.

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