NCAI Amendments to ICWA

The following text was provided by Kevin McCarty (kmc@netcom.com) by way of Mark Fiddler of the Indian Child Welfare Law Center.

The National Congress of American Indians (NCAI) will propose amendments to the Indian Child Welfare Act (ICWA) to be considered by the Senate Indian Affairs Committee as alternative language to Title III of HR 3286, the adoption tax credit bill that was passed in the House on May 10 this year. Title III of that bill provides that ICWA would not apply to child custody proceedings involving a child where the parents do not maintain "significant social, political, or cultural affiliation" with the Indian tribe.

The proposal, approved June 5 by NCAI, addresses the following nine points:

requires written notice to tribes in voluntary adoptions, termination of parental rights, and foster care proceedings
sets time frames for intervention by tribes in voluntary proceedings
institutes criminal sanctions to discourage deception or misrepresentation in efforts to evade ICWA
sets time frames for withdrawal of parental consent to adoptions
includes Alaska Native villages in ICWA coverage
allows state courts to provide open adoptions where state law would otherwise prohibit them
clarifies exclusive jurisdiction in custody proceedings involving wards of a tribal court.
requires attorneys and agencies to inform Indian parents of their rights under ICWA
insists that any method of addressing tribal membership must be done with full protection of tribal sovereignty.

Here is the full text of the proposed amendments.

<< words in angle brackets >> are ADDITIONS to existing wording.
[[ words in square brackets ]] are DELETIONS of existing wording.
25 U.S.C section 1903(10) (item #5 above)

(10) ''reservation'' means Indian country as defined in section 1151 of title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation << and to the extent, if any, not otherwise included in this definition, any lands located with an Alaska Native village >>;

25 U.S.C section 1911(a) (item #7 above)

(a) 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 << who resides or is domiciled within the reservation of an Indian tribe >> is << made >> a ward of a tribal court << or where an Indian child becomes a ward of a tribal court following a transfer of jurisdiction pursuant to subsection (b) of this section >>, the Indian tribe shall retain exclusive jurisdiction over any child custody proceeding involving such ward, notwithstanding any subsequent change in the residence or domicile of the child.

(b) In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

25 U.S.C section 1911(c) (item #2 above)

(c) << Except as provided in section 103(e) [25 U.S.C. 1913(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 section 1913(a) (item #8 above)

Consents to Foster Care, Adoption, Termination of Parental Rights

Where any parent or Indian custodian voluntarily consents to a foster care << 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 and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian << and that any attorney, public or private agency facilitating the voluntary termination or adoptive placement has informed the natural parents of their placement options and the applicable provisions of this Act >>. The court shall also certify that either the parent or 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, or within ten days after, birth of the Indian child shall not be valid.

25 U.S.C section 1913(b) (item #4 above)

(b) WITHDRAWAL OF CONSENT

<< (i) >> 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.

<< (ii) Except as provided in subsection (b)(iii), a consent to adoption or voluntary termination of parental rights may be revoked and the child shall be immediately returned to the parent only if no final decree of adoption has been entered and

(A) less than six months have passed from the date the Indian child's tribe received notice of the adoptive placement pursuant to section 1913(c) and (d), or
(B) the adoptive placement specified by the parent ends, or
(C) less than 30 days have passed since the commencement of the adoption proceeding.

(iii) If a consent has not been revoked within the time frames provided in subsection b(ii), a parent may thereafter revoke consent only under applicable State law or, upon petition of a parent or the Indian child's tribe to a court of competent jurisdiction and a finding that consent to adoption or termination of parental rights was obtained through fraud or duress, or that notice was not provided under this section. In such case, the child shall be immediately returned to the parent and a final decree of adoption, if any, shall be vacated. No adoption which has been in effect for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law.>>

[[ (c) 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, as the case may be, and the child shall be returned to the parent.

(d) 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.]]

25 U.S.C section 1913(c) (item #1 above)

<< ADD Section 1913(c) NOTICE TO TRIBES - Notice shall be sent by a party seeking voluntary placement of an Indian child or voluntary termination of the parental rights of a parent of an Indian child to the Indian child's tribe, by registered mail with return receipt requested, in the following circumstances:

(i) within one hundred days following any foster care placement,
(ii) within five days following a pre-adoptive or adoptive placement,
(iii) within ten days of the commencement of a termination of parental rights proceeding; and
(iv) within ten days of the commencement of an adoption proceeding. >>

25 U.S.C section 1913(d) (item #1 above)

<< ADD Section 1913(d) CONTENT OF NOTICE - The notices required under section 1913(c) shall contain

(i) the child's name and actual or anticipated date and place of birth;
(ii) the names, maiden names, addresses and dates of birth of the Indian parents and grandparents of the child;
(iii) the names and addresses of the child's extended family members having a priority in placement under section 1915, if known;
(iv) the reasons why the child may be an Indian child;
(v) the names and addresses of the parties to the state court proceeding;
(vi) the name and address of the state court in which the proceeding is pending or will be filed, and the time and date of such proceeding;
(vii) the tribal affiliation, if any, of the prospective adoptive parents;
(viii) the name and address of any social services or adoption agency involved;
(ix) the identity of any tribe of which the child or parent is a member;
(x) a statement that the tribe may have the right to intervene;
(xi) an inquiry as to whether the tribe intends to intervene or waive any right to intervene;
(xii) a statement that any right to intervene will be waived if the tribe does not respond in the manner and within the time frames required by section 1913(e). >>

25 U.S.C section 1913(e) (item #2 above)

<< ADD Section 1913(e) INTERVENTION BY TRIBES - The Indian child's tribe shall have the right to intervene at any point in any voluntary child custody proceeding in a state court if any of the following has occurred:

(i) In the case of a termination of parental rights proceeding, the tribe has filed a notice of intent to intervene or a written objection to termination within 30 days of receiving notice of such proceeding.
(ii) In the case of an adoption proceeding, the tribe has filed a notice of intent to intervene or a written objection to the adoptive placement within 90 days of receiving notice of the adoptive placement or within 30 days of receiving notice of the voluntary adoption proceeding, whichever is later.
(iii) In any case where the tribe did not receive notice that complies with subsections (c) and (d), Provided, that that a tribe shall be precluded from intervention if it gives written notice of its intent not to intervene in a specific proceeding or gives notice that neither the child or parents are members of that tribe. >>

25 U.S.C section 1913(f) (item #2 above)

<< ADD Section 1913(f)

Any action by a tribe pursuant to subsection (e) shall not

(i) affect the rights of any person having a placement preference or other right under this Act,
(ii) preclude intervention by the Indian child's tribe in the event that the proposed adoption placement is changed, or
(iii) otherwise affect the applicability of this Act. >>

25 U.S.C section 1913(g) (item #1 above)

<< ADD Section 1913(g)

No voluntary termination of parental rights of adoption proceeding under State law shall be held until at least 30 days after receipt of notice by the Indian child's tribe. >>

25 U.S.C section 1913(f) (item #6 above)

<< ADD Section 1913(h)

Any State law to the contrary notwithstanding, a court may approve, as part of an adoption decree, an agreement that the birth parents, extended family and Indian tribe of an Indian child shall have an enforceable right to visitation or continued contact with such a child after the entry of a final decree of adoption. Failure to comply with such continued visitation or contact shall not be grounds for setting aside a final decree of adoption.

>> 25 U.S.C. section 1924 (item #3 above)

<< ADD Section 1924

(a) In connection with any proceeding or potential proceeding involving a child who is or may be an Indian child for purposes of this Act, whoever

encourages or facilitates fraudulent representations or omissions regarding whether a child or parent is Indian, or
conspires to encourage or facilitate such representations or omissions, or
aids or abets such representations or omissions having reason to know that such representations or omissions are being made and may have a material impact on the applications of this Act

shall be fined not more than $100,000, or imprisoned not more than 12 months, or both, and in the case of a second or subsequent violation, be fined not more than $250,000, or imprisoned not more than 5 years, or both.

(b) No parent of an Indian child shall be prosecuted under this section. >>