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INDIAN
CHILD WELFARE ACT AMENDMENTS OF 2002 H.R.
4733 SECTION-BY-SECTION
DESCRIPTION |
The
“Bill Language” column shows changes made by H.R. 4733 to the existing
ICWA as it would appear if
H.R.
4733 became law. The strikethrough
represents ICWA language that has been deleted by H.R. 4733,
and
the boldface represents new
language that has been added by H.R. 4733.
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H.R.
4733 Bill Language – Section 2 |
Explanation |
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§
1911. Indian tribe jurisdiction over Indian child custody
proceedings-Exclusive jurisdiction Jurisdiction
Over Child Custody And Child Adoption Proceedings (a)
Exclusive jurisdiction (1)
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.
(2)
An Indian tribe shall retain exclusive jurisdiction over any
involuntary child custody proceeding that involves an Indian child,
notwithstanding the residence or domicile of the Indian child, in any
case in which the Indian child-- (A)
is a ward of a tribal court of that Indian tribe; or (B)
has become subject to the jurisdiction of the tribal court of that
Indian tribe after a transfer of jurisdiction is carried out under
subsection (b). (3)
An Indian tribe shall retain exclusive jurisdiction over any voluntary
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)
resided or was domiciled within the reservation of that Indian tribe
at the time the child custody proceeding commenced; or (B)
has become subject to the jurisdiction of the tribal court of that
Indian tribe after a transfer of jurisdiction is carried out under
subsection (b)..
(4) The provisions of paragraph (2) of this subsection and
subsection (b) shall apply to any child custody proceeding which
became subject to concurrent State jurisdiction pursuant to the Act of
August 15, 1953, or any other Federal law-.
(5) Subject to section 108(b)(1) and 109, subsection (b) of
this section, and paragraphs (2) and (3) of this subsection, but
notwithstanding the existence or absence of a reservation in Alaska,
Indian tribes in Alaska shall have concurrent jurisdiction with the
State of Alaska over child custody proceedings involving Indian
children who reside or are domiciled within the State of Alaska.
(6) Subject to sections 108 and 109, this subsection, and
subsection (b) of this section, but notwithstanding paragraph (5) of
this subsection, any person seeking to adopt an Indian child in an
Alaskan State court may, at any time, petition tribal court of the
Indian child’s tribe to approve the adoption and, upon said tribal
court agreeing to hear and determine the petition, the adoptive
placement proceedings shall be within the exclusive jurisdiction of
the Indian child’s tribe.
“(7) Nothing in paragraph (5) shall
affect – (A)
‘the right of any Indian tribe in Alaska to
exercise jurisdiction pursuant to subsection (b) over
any Indian child who resides or is domiciled outside
the State of Alaska’; and (B)
‘the jurisdiction under paragraph (1) of any
Indian tribe with a reservation within the exterior
boundaries of the State of Alaska’”. |
Section
2 clarifies that an Indian tribe retains exclusive jurisdiction over
involuntary Indian child custody proceedings where the child is a ward
of the tribal court and in voluntary Indian child custody proceedings
where the child is resident or domiciled on the reservation at the
time the child custody proceeding began. The amendment also clarifies
that in any child custody proceeding, the tribe retains exclusive
jurisdiction over children who become wards of the tribal court after
a transfer of jurisdiction from a state court. The amendment further
clarifies that P.L. 83-280 and similar laws do not diminish the
exclusive jurisdiction of tribes over children who are wards of a
tribal court or are otherwise within the exclusive jurisdiction of a
tribe. In addition, the amendment authorizes Alaska tribes to exercise
concurrent jurisdiction with the state over Indian children who reside
in or are domiciled in Alaska and permits petitioners seeking to adopt
an Indian child in an Alaska state court to remove the proceedings to
a tribal court if that court agrees to assume jurisdiction over the
adoption. |
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H.R.
4733 Bill Language – Section 3 |
Explanation |
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§
1911. Transfer of proceedings: declination by tribal court Transfer
Of Jurisdiction To Tribal Court (b)
Transfer of proceedings; declination by tribal court In
any State court child custody proceeding “(1)
the tribal court of such tribe declines the transfer jurisdiction; (2)
the tribal court does not have subject matter jurisdiction
under the laws of the tribe or Federal law; (3)
in circumstances where evidence necessary to decide the case
cannot be adequately presented in tribal court without undue hardship
to the parties or the witnesses, the tribal court is unable to
mitigate such hardship by making arrangements to receive and consider
such evidence by remote communication, hearing the evidence at a
location convenient to the parties or the witnesses, or any other
means permitted in the tribe’s rules of evidence or discovery; or (4)
either parent objects to the transfer of jurisdiction and the
objection is consistent with section 2(3) recognizing the vital
relationship between Indian tribes and their children and the policy
set forth in section 3 that it is in the best interests of Indian
children requiring foster or adoptive home placement to be placed in
homes that reflect the unique values of Indian culture.” |
Section
3 defines the circumstances under which a state court can deny a
petition to transfer jurisdiction to a tribe. Transfer can be denied
only if the tribe declines the transfer, the tribe does not have
subject matter jurisdiction, the tribal forum is inconvenient and the
tribe is unwilling or unable to mitigate the inconvenience, or a
parent objects to transfer, and the objection is consistent with
maintaining the child’s relationship with the tribe and with placing
the child in a home that reflects the unique values of Indian culture. |
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H.R.
4733 Bill Language – Section 4 |
Explanation |
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§
1911. Indian tribe jurisdiction over Indian child custody proceedings Intervention
In State Court Proceedings
(c)
State court proceedings; intervention.
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Section
4 makes a conforming technical amendment that places conditions on an
Indian tribe’s existing right of intervention in a voluntary child
custody proceeding based on the amendments contained in section 11.
The amendment also recognizes the right of tribes to intervene in
adoption proceedings and the right of extended family members to
intervene in child custody proceedings in order to seek placement of a
child. |
H.R.
4733 Bill Language – Section 5
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Explanation |
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§
1911. Indian tribe jurisdiction over Indian child custody proceedings. Full
Faith and Credit (d)
Full faith and credit to public acts, records, and judicial
proceedings of Indian tribes. The United States, every State, every
territory or possession of the United States, and every Indian tribe
shall give full faith and credit to the public acts, records, |
This
amendment clarifies that the full faith and credit provisions of ICWA
apply to tribal court judgments involving the custody of Indian
children whether the judgment was entered in a child custody
proceeding or otherwise. |
H.R.
4733 Bill Language - Section 7
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Explanation |
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§
1913. Parental rights; voluntary termination Voluntary
Termination of Parental Rights
(a)
(1) “(A)
executed in writing
(B) recorded before a judge of a court of competent
jurisdiction; and
(C) accompanied by the presiding judge’s certificate that –
(i)
the terms and consequences of the consent were fully explained
in detail and were fully understood by the parent or Indian custodian (ii)
any attorney or public or private agency that facilitates the
voluntary termination of parental rights or preadoptive or adoptive
placement has – (I)
informed the natural parents of the placement options with respect to
the child involved; (II)
informed those parents of the applicable provisions of this Act; and (III)
certified that the natural parents will be notified within 10 days
after any termination of or change in the adoptive placement”
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Section
7 clarifies that ICWA applies to voluntary consents to adoptive,
preadoptive, and foster care placements. In addition, the
presiding judge must 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
ICWA 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 under ICWA, including the requirements
governing notice and consent. |
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H.R.
4733 Bill language - Section 8 |
Explanation |
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§
1913 Foster care placement, withdraw of consent Withdrawl
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 changes or terminates; or (ii)
(ii)
the revocation occurs before the later of the end of –- (I)
the 180-day period beginning on the date on which the tribe of
the Indian child receives written notice of the adoptive placement
provided in accordance with the requirements of subsections (c) and
(d), which includes an explanation of the revocation period specified
in this subclause; 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. (C)
Revocation of consent under this paragraph shall be effective from the
date on which the parent who revokes consent provides a written
revocation of consent to a party that seeks the voluntary adoptive
placement of an Indian child or a written or oral revocation of
consent to the State court, if any, in which any proceeding for a
termination of parental rights such as Indian child, or an adoption
proceeding concerning to such an Indian child is pending. Any
revocation sent by mail under this paragraph shall be effective from
the postmarked date of the notice. (3)
Immediately upon revocation under paragraph (2) – (A)
the Indian child who is the subject of that revocation shall be
returned to the parent who revokes consent, but such return shall not
be construed to effect the rights of the parent to whom the child is
not returned; and (B)
the court shall send notification of the revocation to the last
known address of the other parent not later than 5 days after the
court received the revocation. (4)
Subject to paragraphs (2)(A), (2)(B)(i) and (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, a parent may revoke such consent after
that date only – (A)
pursuant to applicable State law (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; or (C)
if the parent of the Indian child involved did not receive each
applicable written notice required by paragraphs (3)(A), (3)(B), and
(3)(C) of subsection (h) (5)
Subject to paragraph (6), if a consent to adoption or voluntary
termination of parental rights is revoked under paragraph 4(B) – “(A)
the child shall be returned immediately to the parent who revokes
consent; and (C)
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. |
Section
8 sets limits on when an Indian parent may withdraw consent to an
adoption. A birth parent
can revoke consent under one of the following timelines: 1)
if no final decree of adoption has been entered, within the
later of (a)
a 30 day period that starts on the day the parent receives notice of
the adoption proceeding, or (b)
a 180 day period that begins on the day the tribe has received notice
of the adoptive placement 2)
at any time before a final decree of adoption is entered if the
original placement is changed or terminated This
section also provides that if a birth parent has not revoked consent
under one of these timelines then consent may only be revoked under
applicable timelines established under state law or by a court finding
that the consent was obtained through fraud or duress. No
adoption that has been in effect longer than or equal to two years can
be invalidated. |
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H.R.
4733 Bill Language - Section 9 |
Explanation |
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§
1913. Parental rights; voluntary termination Notice
to Tribes
(c)(1)
“(A)
any preadoptive or adoptive placement subsequent to an involuntary
termination of parental rights of a parent of an Indian child; and (B)
any termination or change of such voluntary placement, shall provide
written notice of the proposed placement or proceeding to the tribe of
that Indian child. A notice under this subsection shall be sent by
registered mail (return receipt requested) to the tribe of the Indian
child, not later than the applicable date specified in paragraph (2)
or (3) and shall include a copy of any complaint or petition and any
court orders.” (2)
(A) Except as provided in paragraph (3), in each of the
following cases, notice shall be provided under paragraph (1) by the
applicable dates specified: “(i)
Not later than 100 days after any foster care placement of an Indian
child occurs. (ii)
Not later than 5 days after any initial or subsequent preadoptive or
adoptive placement or termination of of an 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 adoptive 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 a good faith investigation concerning whether the child involved
may be an Indian child. |
Section
9 requires that notice be provided to the child’s tribe by any
person seeking the voluntary placement of an Indian child or
termination of the parental rights of a parent of an Indian child.
The notice must be provided under the following timelines: 1)
100 days after a foster care placement, 2)
5 days after a pre-adoptive or adoptive placement or
termination of an adoptive placement, 3)
10 days after a proceeding to terminate parental rights, and 4)
10 days after an adoption proceeding Notice
can also be given prior to the birth of an Indian child when a
placement is contemplated earlier. If
after the notice periods have expired, it is discovered that a child
may be Indian, the time limitations on a tribe’s right to intervene
only apply if the tribe is provided notice within 10 days after the
discovery was made. |
H.R.
4733 Bill Language - Section 10
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Explanation |
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§
1913. Parental rights; voluntary termination Content
of Notice
(d)
Each written notice provided under subsection (c) shall be based on a
good faith investigation and 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 and the name and address of each known extended
family member (if any) that has priority in placement under section
105, 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 statement of the reasons why the child involved may be an Indian
child. (4)
The names and addresses of the parties involved in any applicable
proceeding in a State court. (5)
(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. (6)
The tribal affiliation if any, of the prospective adoptive parents. (7)
The name and address of any public or private social service agency or
adoption agency involved. (8)
An identification of any Indian tribe with respect to which the Indian
child or parent may be a member, is eligible for membership, or
satisfies the requirements of paragraph 4(C) of section 4. (9)
An identification of any Indian tribes in which the Indian child’s
parents or grandparents may be a member. (10)
A statement that each Indian
tribe identified under paragraph (8) may have the right to intervene
in the proceeding referred to in paragraph (4). (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. (13)
If applicable, a statement of the reasons why the adoptive placement
of the Indian child involved was terminated or changed and the date of
such termination or change. |
Requires
that the notice to Indian tribes under section 9 must include the
following and be based on a good faith investigation: 1)
name of the Indian child 2)
actual or anticipated date and place of birth of the child 3)
identification, if known after reasonable inquiry, of the
Indian parent and grandparent
of the Indian child and a list of known extended family members 4)
statement of the reasons why a child may be an Indian child 5)
information on the parties involved and court proceedings in
state court 6)
notification to the tribe that it may have a right to intervene 7)
inquiry into whether the tribe intends to intervene or waive
its right to intervene 8)
statement that if the tribe fails to respond by the deadlines
in section 11, the right of the tribe to intervene will be considered
to have been waived |
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H.R.
4733 Bill Language –
Section 11 |
Explanation
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§
1913. Parental rights; voluntary termination Intervention
by Indian Tribe
(e)(1)
The tribe of the Indian child involved 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 sent a notice of intent to intervene or a written
objection to the adoptive placement to the court or to the party that
is seeking the voluntary placement of the Indian child, not later than
45 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 sent
a notice of intent to intervene or a written objection to the adoptive
placement to the court or to the party that is seeking the voluntary
placement of the Indian child, not later than the later of-- (i)
100 days after receiving notice of the adoptive placement that was
provided in accordance with the requirements of subsections (c) and
(d); or (ii)
45 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 State court may extend the time period in paragraph (1) by not more
than 15 days if that court determines that extenuating circumstances
require such an extension to promote justice. (3)(A) Except as provided in subparagraph (B), the tribe of the Indian child involved 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 provi |