I
104TH CONGRESS
2D SESSION
H. R. 3828
To amend the Indian Child Welfare Act of 1978, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 16, 1996
Mr. YOUNG of Alaska (for himself, Mr. MILLER of California, and Mr. RICH-
ARDSON) introduced the following bill; which was referred to the Commit-
tee on Resources
A BILL
To amend the Indian Child Welfare Act of 1978, and for
other purposes.
Be it enacted by the Senate and House of Representa-
tives 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 amend-
ment 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 provi-
sion 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 resi-
dence or domicile of the Indian child, in any case in which
the Indian child—
‘‘(A) resides or is domiciled within the reserva-
tion 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 in-
serting ‘‘foster care or preadoptive or adoptive place-
ment’’;
(3) by striking ‘‘judge’s certificate that the
terms’’ and inserting the following: ‘‘judge’s certifi-
cate that—
‘‘(A) the terms’’;
(4) by striking ‘‘or Indian custodian.’’ and in-
serting ‘‘or Indian custodian; and’’;
(5) by inserting after subparagraph (A), as des-
ignated by paragraph (3) of this subsection, the fol-
lowing new subparagraph:
‘‘(B) any attorney or public or private agency
that facilitates the voluntary termination of parental
rights or preadoptive or adoptive placement has in-
formed 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 en-
tered; 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 pro-
vided 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 expla-
nation of the revocation period specified in this
subclause.
‘‘(3) The Indian child with respect to whom a revoca-
tion 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, be-
ginning after that date, a parent may revoke such a con-
sent 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)(A) Subject to paragraph (6), if a consent to
adoption or voluntary termination of parental rights is re-
voked under paragraph (4)(B), with respect to the Indian
child involved—
‘‘(i) in a manner consistent with paragraph (3),
the child shall be returned immediately to the parent
who revokes consent; and
‘‘(ii) if a final decree of adoption has been en-
tered, 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 pa-
rental 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 fol-
lowing 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 com-
mencement of any proceeding for a termination of
parental rights to an Indian child.
‘‘(iv) Not later than 10 days after the com-
mencement 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 adop-
tive or preadoptive placement.
‘‘(3) If, after the expiration of the applicable period
specified in paragraph (2), a party referred to in para-
graph (1) discovers that the child involved may be an In-
dian child—
‘‘(A) the party shall provide notice under para-
graph (1) not later than 10 days after the discovery;
and
‘‘(B) any applicable time limit specified in sub-
section (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 avail-
able); 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 in-
volved 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 prospec-
tive adoptive parents.
‘‘(8) The name and address of any public or
private social service agency or adoption agency in-
volved.
‘‘(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 iden-
tified under paragraph (9) may have the right to in-
tervene in the proceeding referred to in paragraph
(5).
‘‘(11) An inquiry concerning whether the Indian
tribe that receives notice under subsection (c) in-
tends 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 In-
dian 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 pro-
ceeding 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 re-
ceiving notice that was provided in accordance with
the requirements of subsections (c) and (d); or
‘‘(B) in the case of a voluntary adoption pro-
ceeding, 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 accord-
ance with the requirements of subsections (c)
and (d); or
‘‘(ii) 30 days after receiving a notice of the
voluntary adoption proceeding that was pro-
vided 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 require-
ments of subsections (c) and (d).
‘‘(B) An Indian tribe may not intervene in any vol-
untary 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 inter-
vene 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 mem-
ber 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 state-
ment that documents, with respect to the Indian child in-
volved, the membership or eligibility for membership of
that Indian child in the Indian tribe under applicable trib-
al 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 pro-
posed adoptive placement of that Indian child is
changed after that action is taken; or
‘‘(3) except as specifically provided in sub-
section (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 (in-
cluding any State law)—
‘‘(1) a court may approve, as part of an adop-
tion decree of an Indian child, an agreement that
states that a birth parent, an extended family mem-
ber, or the Indian child’s tribe shall have an enforce-
able 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 de-
cree 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 sanc-
tion under subsection (b) if that person—
‘‘(1) knowingly and willfully falsifies, conceals,
or covers up by any trick, scheme, or device, a mate-
rial 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 fraudu-
lent statement, omission, or representation; or
‘‘(B) falsifies a written document knowing that
the document contains a false, fictitious, or fraudu-
lent 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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