Calendar No. 541

104TH CONGRESS

2D SESSION S. 1962

[Report No. 104–335]

A BILL

To amend the Indian Child Welfare Act of 1978,

and for other purposes.

JULY 26, 1996

Reported without amendment
II

Calendar No. 541

104TH CONGRESS

2D SESSION S. 1962

[Report No. 104–335]

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, Mr. SIMON, and Mr. DORGAN) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

JULY 26, 1996

Reported by Mr. MCCAIN, without amendment

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’’.
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1 (b) REFERENCES.—Whenever in this Act an amend2 ment or repeal is expressed in terms of an amendment

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

4 shall be considered to be made to a section or other provi5 sion of the Indian Child Welfare Act of 1978 (25 U.S.C.

6 1901 et seq.).

7 SEC. 2. EXCLUSIVE JURISDICTION.

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

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

10 (2) by striking the last sentence and inserting

11 the following:

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

13 over any child custody proceeding that involves an Indian

14 child, notwithstanding any subsequent change in the resi15 dence or domicile of the Indian child, in any case in which

16 the Indian child—

17 ‘‘(A) resides or is domiciled within the reserva18 tion of the Indian tribe and is made a ward of a

19 tribal court of that Indian tribe; or

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

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

22 court of that Indian tribe.’’.

23 SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

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

25 striking ‘‘In any State court proceeding’’ and inserting
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1 ‘‘Except as provided in section 103(e), in any State court

2 proceeding’’.

3 SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

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

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

6 (2) by striking ‘‘foster care placement’’ and in7 serting ‘‘foster care or preadoptive or adoptive place8 ment’’;

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

10 terms’’ and inserting the following: ‘‘judge’s certifi11 cate that—

12 ‘‘(A) the terms’’;

13 (4) by striking ‘‘or Indian custodian.’’ and in14 serting ‘‘or Indian custodian; and’’;

15 (5) by inserting after subparagraph (A), as des16 ignated by paragraph (3) of this subsection, the fol17 lowing new subparagraph:

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

19 that facilitates the voluntary termination of parental

20 rights or preadoptive or adoptive placement has in21 formed the natural parents of the placement options

22 with respect to the child involved, has informed

23 those parents of the applicable provisions of this

24 Act, and has certified that the natural parents will
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1 be notified within 10 days of any change in the

2 adoptive placement.’’;

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

4 and inserting the following:

5 ‘‘(2) The court shall also certify’’;

6 (7) by striking ‘‘Any consent given prior to,’’

7 and inserting the following:

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

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

10 paragraph:

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

12 to consent to an adoptive placement shall be treated as

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

14 adoption provisions of this Act.’’.

15 SEC. 5. WITHDRAWAL OF CONSENT.

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

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

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

19 paragraphs:

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

21 to adoption of an Indian child or voluntary termination

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

23 if—

24 ‘‘(A) no final decree of adoption has been en25 tered; and
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1 ‘‘(B)(i) the adoptive placement specified by the

2 parent terminates; or

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

4 the end of—

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

6 date on which the Indian child’s tribe receives

7 written notice of the adoptive placement pro8 vided in accordance with the requirements of

9 subsections (c) and (d); or

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

11 date on which the parent who revokes consent

12 receives notice of the commencement of the

13 adoption proceeding that includes an expla14 nation of the revocation period specified in this

15 subclause.

16 ‘‘(3) The Indian child with respect to whom a revoca17 tion under paragraph (2) is made shall be returned to the

18 parent who revokes consent immediately upon an effective

19 revocation under that paragraph.

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

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

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

23 termination of parental rights has not been revoked, be24 ginning after that date, a parent may revoke such a con25 sent only—
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1 ‘‘(A) pursuant to applicable State law; or

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

3 petitions a court of competent jurisdiction, and the

4 court finds that the consent to adoption or voluntary

5 termination of parental rights was obtained through

6 fraud or duress.

7 ‘‘(5) Subject to paragraph (6), if a consent to adop8 tion or voluntary termination of parental rights is revoked

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

10 involved—

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

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

13 parent who revokes consent; and

14 ‘‘(B) if a final decree of adoption has been en15 tered, that final decree shall be vacated.

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

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

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

19 this subsection.’’.

20 SEC. 6. NOTICE TO INDIAN TRIBES.

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

22 read as follows:

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

24 of an Indian child or the voluntary termination of the pa25 rental rights of a parent of an Indian child shall provide
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1 written notice of the placement or proceeding to the Indian

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

3 by registered mail (return receipt requested) to the Indian

4 child’s tribe, not later than the applicable date specified

5 in paragraph (2) or (3).

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

7 shall be provided under paragraph (1) in each of the fol8 lowing cases:

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

10 care placement of an Indian child occurs.

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

12 preadoptive or adoptive placement of an Indian

13 child.

14 ‘‘(iii) Not later than 10 days after the com15 mencement of any proceeding for a termination of

16 parental rights to an Indian child.

17 ‘‘(iv) Not later than 10 days after the com18 mencement of any adoption proceeding concerning

19 an Indian child.

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

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

22 referred to in paragraph (1) contemplates a specific adop23 tive or preadoptive placement.

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

25 specified in paragraph (2), a party referred to in para-
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1 graph (1) discovers that the child involved may be an In2 dian child—

3 ‘‘(A) the party shall provide notice under para4 graph (1) not later than 10 days after the discovery;

5 and

6 ‘‘(B) any applicable time limit specified in sub7 section (e) shall apply to the notice provided under

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

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

10 the placement, made reasonable inquiry concerning

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

12 SEC. 7. CONTENT OF NOTICE.

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

14 read as follows:

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

16 (c) shall contain the following:

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

18 the actual or anticipated date and place of birth of

19 the Indian child.

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

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

22 Indian parent and grandparent of the Indian child,

23 if—

24 ‘‘(A) known after inquiry of—
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1 ‘‘(i) the birth parent placing the child

2 or relinquishing parental rights; and

3 ‘‘(ii) the other birth parent (if avail4 able); or

5 ‘‘(B) otherwise ascertainable through other

6 reasonable inquiry.

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

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

9 has priority in placement under section 105.

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

11 involved may be an Indian child.

12 ‘‘(5) The names and addresses of the parties in13 volved in any applicable proceeding in a State court.

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

15 court in which a proceeding referred to in paragraph

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

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

18 proceeding that is scheduled as of the date on which

19 the notice is provided under this subsection.

20 ‘‘(7) If any, the tribal affiliation of the prospec21 tive adoptive parents.

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

23 private social service agency or adoption agency in24 volved.
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1 ‘‘(9) An identification of any Indian tribe with

2 respect to which the Indian child or parent may be

3 a member.

4 ‘‘(10) A statement that each Indian tribe iden5 tified under paragraph (9) may have the right to in6 tervene in the proceeding referred to in paragraph

7 (5).

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

9 tribe that receives notice under subsection (c) in10 tends to intervene under subsection (e) or waive any

11 such right to intervention.

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

13 receives notice under subsection (c) fails to respond

14 in accordance with subsection (e) by the applicable

15 date specified in that subsection, the right of that

16 Indian tribe to intervene in the proceeding involved

17 shall be considered to have been waived by that In18 dian tribe.’’.

19 SEC. 8. INTERVENTION BY INDIAN TRIBE.

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

21 at the end the following new subsections:

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

23 to intervene at any time in a voluntary child custody pro24 ceeding in a State court only if—
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1 ‘‘(A) in the case of a voluntary proceeding to

2 terminate parental rights, the Indian tribe filed a

3 notice of intent to intervene or a written objection

4 to the termination, not later than 30 days after re5 ceiving notice that was provided in accordance with

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

7 ‘‘(B) in the case of a voluntary adoption pro8 ceeding, the Indian tribe filed a notice of intent to

9 intervene or a written objection to the adoptive

10 placement, not later than the later of—

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

12 adoptive placement that was provided in accord13 ance with the requirements of subsections (c)

14 and (d); or

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

16 voluntary adoption proceeding that was pro17 vided in accordance with the requirements of

18 subsections (c) and (d).

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

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

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

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

23 written notice provided in accordance with the require24 ments of subsections (c) and (d).
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1 ‘‘(B) An Indian tribe may not intervene in any vol2 untary child custody proceeding in a State court if the

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

4 party involved of—

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

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

8 that—

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

10 or is not eligible for membership in, the Indian

11 tribe; or

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

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

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

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

17 tribe files that motion, a certification that includes a state18 ment that documents, with respect to the Indian child in19 volved, the membership or eligibility for membership of

20 that Indian child in the Indian tribe under applicable trib21 al law.

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

23 subsection (e) shall not—

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

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

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

3 Indian tribe under subsection (e) from intervening in

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

6 changed after that action is taken; or

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

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

10 proceeding for a voluntary termination of parental rights

11 or adoption of an Indian child may be conducted under

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

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

14 that was provided in accordance with the requirements of

15 subsections (c) and (d).

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

18 ‘‘(1) a court may approve, as part of an adop19 tion decree of an Indian child, an agreement that

20 states that a birth parent, an extended family mem21 ber, or the Indian child’s tribe shall have an enforce22 able right of visitation or continued contact with the

23 Indian child after the entry of a final decree of

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

2 a court order concerning the continued visitation or

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

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

6 SEC. 9. FRAUDULENT REPRESENTATION.

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

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

9 ‘‘SEC. 114. FRAUDULENT REPRESENTATION.

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

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

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

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

14 child, shall, upon conviction, be subject to a criminal sanc15 tion under subsection (b) if that person—

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

17 or covers up by any trick, scheme, or device, a mate18 rial fact concerning whether, for purposes of this

19 Act—

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

21 ‘‘(B) a parent is an Indian; or

22 ‘‘(2)(A) makes any false, fictitious, or fraudu23 lent statement, omission, or representation; or

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

25 the document contains a false, fictitious, or fraudu-
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1 lent statement or entry relating to a material fact

2 described in paragraph (1).

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

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

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

6 fined in accordance with section 3571 of title 18,

7 United States Code, or imprisoned not more than 1

8 year, or both.

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

10 shall be fined in accordance with section 3571 of

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

12 than 5 years, or both.’’.