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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 provided in accordance
with the requirements of subsections (c) and (d). (B)
An Indian tribe may not intervene in any voluntary 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 intervene 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)
does not meet the requirements of paragraph 4(C) of section 4. (4)
Except in the case of a voluntary foster care placement proceeding, 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 tribal
certification that includes a statement that documents, with respect
to the Indian child involved, the membership or eligibility for
membership of that Indian child in the Indian tribe under applicable
tribal law or the basis for any assertion by the tribe that the child
meets the requirements of paragraph 4(C) of section 4. (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 proposed
adoptive placement of that Indian child is changed after that action
is taken; or (3)
except as specifically provided in subsection (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 45 days after the tribe of the Indian child receives notice of that
proceeding that was provided in accordance with the requirements of
subsections (c) and (d). |
An
Indian tribe can intervene in a voluntary proceeding under the
following criteria and timelines: 1)
termination of parental rights proceeding – tribe filed
notice of intent to intervene or a written objection not later
than 45 days after receiving the notice of the termination of parental
rights proceeding 2)
voluntary adoptive placement – tribe filed notice of intent
to intervene or a written objection to the placement not later than
100 days after receiving notice of the adoptive placement 3)
voluntary adoption proceeding - tribe filed notice of intent
to intervene or a written objection not later than 45 days after
receiving a notice of the adoption proceeding 4)
voluntary foster care placement – tribe can intervene at any
time 5)
extenuating circumstances – tribe can request that the above
timelines be extended by up to 15 days If a
tribe does not receive proper notice under the requirements in
sections 9 and 10, a tribe can intervene at any time.
A
tribe cannot intervene after it has provided written notice to a state
court that it does not intend to intervene or that neither the child
nor birth parent(s) is a member of the tribe, is eligible for
membership in the tribe, or is otherwise an Indian child.
With
its motion to intervene, a tribe must provide a tribal certification
of the tribal membership or eligibility for membership of the Indian
child or establish another basis for the child to be treated as an
Indian child. If a
tribe chooses not to intervene, either through a written response or
by not responding to a notice, the placement preference or rights of
others under ICWA will not be affected.
If
the proposed adoptive placement is changed, the tribe will still have
a right to intervene. The
court is prohibited from conducting a voluntary termination of
parental rights or adoption proceeding sooner than 45 days after the
tribe has received notice. |
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H.R.
4733 Bill Language – Section 12 |
Explanation
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§
1913 (new subsection) Notice
to Parents (h)(1)
A party that terminates or changes the voluntary adoptive placement of
an Indian child or commences a proceeding for the adoption of an
Indian child shall provide written notice of such termination, changed
adoptive placement, or proceeding to the parent or parents of that
Indian child. Such a party shall also provide the parent or parents of
that Indian child with a written notice specifying the date on which
the Indian child’s tribe received a written notice of the adoptive
placement that was in accordance with the requirements of subsections
(c) and (d). Any notice
under this subsection shall be sent by registered mail (return receipt
requested) to the parent or parents of the Indian child, not later
than the applicable date specified in paragraph (2). (2)
Each of the notices required under paragraph (1) shall be provided by
the applicable date specified in the following cases: (A)
Not later than 10 days after any termination of
or change in the
adoptive placement of an Indian child,
including any termination or change that occurs
whenever a final decree of adoption has been vacated or
set aside or the adoptive parent or parents voluntarily
consent to the termination of parental rights. (B)
Not later than 10 days after the commencement
of any adoption proceeding concerning an Indian child. (C)
Not later than 5 days after receiving from an
Indian child’s tribe the return receipt requested with
respect to the notice of the adoptive placement of an
Indian child sent to such tribe. “(3)(A)
Each written notice of a termination or change in an adoptive
placement shall contain the following: (i)
The name of the Indian child involved. (ii)
A description of the rights of the parent or
parents of an Indian child under paragraphs (2)
and (3) of
subsection (b) of this section and
subsection (a) of section 106.
(iii) A statement of the reasons why the adoptive
placement of the child involved was terminated or
changed.
(iv) The date on which the adoptive placement of
the child involved was terminated or changed.
(v) The names and addresses of the parties
involved in any applicable proceeding
or
contemplated proceeding in
a State court.
(vi)(I) The name and address of the State court in
which a proceeding referred to in clause (v) is
pending or will be filed.
(II) 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. (vii)
The tribal affiliation of the prospective adoptive parents, if any. (viii)
The name and address of any public or private social service agency or
adoption agency involved.”
“(B) Each written notice of the commencement of an adoption
proceeding concerning an Indian child shall contain the following: (i)
The name of the Indian child involved. (ii)
A description of the rights of the parent or
parents of an Indian child under paragraphs (2)
and (3) of
subsection (b).
(iii) The date on which the adoption proceeding
was commenced.
(iv) If known, the date that is the end of the 180-
day period
beginning on the date on which the
tribe of the
Indian child received written notice of
the adoptive placement.
(v) The names and addresses of the parties
involved in any applicable adoption
proceeding
in a State court.
(vi)(I) The name and address of the State court in
which a proceeding referred to in clause (iii) is
pending.
(II) 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. (vii)
The name and address of any public or private social service agency or
adoption agency involved.
(C) Each written notice of the date on which the Indian
child’s tribe received a written notice of the adoptive placement
that was in accordance with the requirements of subsections © and (d)
shall contain the following: (i)
The name of the Indian child involved. (ii)
A description of the rights of the parent or
parents of an Indian child under paragraphs (2)
and (3) of
subsection (b).
(iii) The date that is the end of the 180- day period
beginning on the date on which the tribe of
the
Indian child received such written notice of
the adoptive placement. (iv)If
known, the exact date
that is the end of the
30-day period beginning
on the date on which the parent revoking consent received notice of
the commencement of the adoption proceeding.
(v) The names and addresses of the parties
involved in any applicable adoption
proceeding in
a State court.
(vi) The name and address of the State court in
which a proceeding referred to in clause (v) is
pending.
(vii)
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. |
Section
12 requires that parents receive notice of any termination or change
in an adoptive placement and of any adoption proceeding. Parents must
also be notified of the date on which the tribe received notice of the
adoptive placement so that, if they choose, they can exercise their
rights under section 8. The amendment specifies timelines for the
required notices as well as the content of each notice. |
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H.R.
4733 Bill Language – Section 13 |
Explanation
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§ 1914. Petition to court of competent jurisdiction to invalidate action upon showing of certain violations.
Sec. 104. Invalidation of Child Custody Proceedings
(a) Any Indian child who is the subject of any action for foster care or adoptive
placement or termination of parental rights under State law, any parent or Indian custodian of any such
child, the Indian child’s tribe, and a member of the Indian child’s extended family who has been rejected
as a placement for the child
(b) Notwithstanding any Federal law or rule to the contrary, a petition under subsection (a)
shall be adjudicated during a pending proceeding when a State court has –
(1) ruled that the proceeding is not within the exclusive jurisdiction of an Indian child’s
tribe or that the proceeding should not be transferred to such tribe’s jurisdiction;
(2) ruled that the proceeding is not a child custody proceeding or that this Act, for other
reasons, does not apply to the proceeding;
(3) held that this Act, on its face or as applied, violates the Constitution;
(4) denied a motion to intervene filed by an Indian tribe or a member of the Indian child’s
extended family;
(5) denied the placement of an Indian child in foster care or adoptive placement with a member
of the Indian child's extended family who has specifically requested such placement, where the justification of good
cause to not make such placement was arbitrary or capricious or
(6) in a case where the father of an Indian child objects to the adoption of such child and the
parental rights of such father have not been terminated pursuant to section 102, ruled that such father’s consent to the
adoption of such child is unnecessary.”
(c) Whenever a petition under subsection (a) is filed after a final judgment under State law,
the petition shall be adjudicated notwithstanding any Federal law or rule to the contrary.
For purposes of this subsection, the term “final judgment” means a judgment of a trial court
where no appeal has been filed under State law, or a judgment of an appellate court affirming
the judgment of a trial court, or an order of the United States Supreme Court denying a writ of
certiorari to a State appellate court.
|
Section
13 clarifies that a proceeding may be brought in federal court to
invalidate foster care placements and termination of parental rights
that violate ICWA requirements. An adoption finalized in violation of
the ICWA or a placement made in violation of ICWA placement
preferences may also be challenged in federal court. The amendment
defines the circumstances under which such a proceeding may be
adjudicated prior to a final judgment in a state court proceeding and
defines the term “final judgment” for purposes of any proceeding
filed under this section following a final judgment under state law. |
H.R.
4733 Bill Language – Section 14
|
Explanation |
|
Sec.
14 Notice to Extended Family Members (new section)
(i)(1) Whenever, in connection with a proceeding or other
action under this section, a party seeks the placement of an Indian
child, including any termination or change of such placement, such
party shall provide written notice of the placement to the Indian
child’s extended family members listed in any notice sent pursuant
to subsection (c). The notice shall be provided in accordance with
subsection (c)(2)(A) and (3)(A) of this section. A notice under this
subsection shall be sent by registered mail (return receipt
requested).
(2) Any notice under paragraph (1) shall contain the
information required under paragraphs (1) through (9) of subsection
(d). In addition, such notice shall contain the following: (A)
“A statement that each extended family member identified in
the notice has the right to intervene in any proceeding described in
the notice in order to seek the placement of the child. (B)
A statement that each extended family member identified in the
notice has the right to seek the placement of the child without having
to intervene in any proceeding described in the notice. (C)
A statement as to whether a written response to the notice must
be filed and, if so, the date that the response must be received and
the name and address to which the response must be sent. The statement
shall include an explanation of the legal consequences, if any, of
failure to file such written response. (D)
A description of any information that must be provided by the
extended family member in order for such member to be considered as a
placement for the child. (E)
A description of
the procedure that an extended family member must follow in order to
be considered as a placement for the child, including the dates by
which an extended family member must take on any action in order to be
so considered.”
|
Section
14 requires a party seeking the voluntary foster care, preadoptive
placement, or adoptive placement of an Indian child to notify members
of the Indian child's extended family identified in any notice
sent to the Indian child’s tribe under section 9. The notice must be
sent within the same time that notices of such placements must be sent
to the Indian child’s tribe. The amendment specifies the content of
the notice which, generally, must inform those notified of their legal
rights under both ICWA and state law. |
|
H.R.
4733 Bill Language – Section 15 |
Explanation
|
|
§
1917. Tribal affiliation information and other information for
protection of rights from tribal relationship; application of subject
of adoptive placement; disclosure by court Tribal
Affiliation Information Sec.
107 Disclosure of Information Regarding Biological Parents
“If
an adopted Indian who is 18 years of age or older, the tribe of an
adopted Indian child, the tribe of an adopted Indian who is 18 years
of age or older, an adoptive parent or guardian of an Indian child who
is under the age of 18, or, in the case of a medical emergency or
incompetence of an adopted Indian, an adoptive parent or guardian of
an Indian 18 years of age or older, petitions the court which entered
the final decree of adoption for the release of information regarding
the tribal affiliation, if any of the adopted child’s biological
parents, the court shall disclose, from any records subject to its
jurisdiction, such information to the petitioner and shall provide the
petitioner with any other identifying information as may be necessary
to protect any rights flowing from an adopted Indian’s tribal
relationship.” |
The
amendment clarifies the rights of adopted Indians to secure a court
order providing the information needed for the adopted Indian to learn
his or her birth identity and obtain any rights that may accrue from
tribal membership. The amendment would also enable adopted Indian
minors, through a proceeding brought by their adoptive parents or a
guardian, or adopted Indians who are incompetent or in a medical
emergency to obtain such information through a proceeding brought by
their adoptive parents or a guardian. |
|
H.R.
4733 Bill Language – Section 16 |
Explanation
|
|
§
1918. Reassumption of jurisdiction over child custody proceedings.
(a) Children Residing or Domiciled Within A Reservation. – Where pursuant to
the provisions of the Act of August 15, 1953 (67 Stat. 588), or pursuant to
any other Federal law, a State became vested with jurisdiction over child
custody proceedings involving Indian children who reside or are domiciled
within the reservation of an Indian tribe, including the disestablished portion,
if any, of such reservation, such tribe may assume jurisdiction exclusive as to
any State over such child custody proceedings.
(b) When An Indian Tribe Does Not Have A Reservation. – Any Indian tribe that does
not have a reservation and as a result does not exercise exclusive jurisdiction
under section 101(a) over child custody proceedings involving Indian children may
assume jurisdiction exclusive as to any State over child custody proceedings
involving Indian children who reside or are domiciled within any of the following
geographic areas:
(A) In the case of a tribe presently located in Oklahoma,
the lands that are within the jurisdictional area of any such tribe are within the
boundaries of such tribe’s last reservation established by final treaty, Federal
agreement, Executive or secretarial order, Executive or secretarial proclamation,
United States patent, Federal statute, or final judicial or administrative
determination.
(B) Lands located in a State other than Oklahoma, including
Alaska, that are within the Indian tribe’s last recognized reservation within the
State or States within which such Indian tribe is presently located.
(C) In case of a tribe located in Alaska –
(i) lands selected by a village corporation
pursuant to sections 12(a) and (b) and 16(b) and (d) of the Alaska Native
Claims Settlement Act (85 Stat. 688, 701, 706; 42 U.S.C. 1611(a) and
(b) and 1615(b) and (d);
(ii) in any other lands located within or contiguous
to the areas described in clause (i) of this subparagraph, including
the lands described in section 22(1) of the Alaska Native Claims
Settlement Act (85 Stat. 688, 715; 42 U.S.C. 1921(1)); or
(iii) lands withdrawn pursuant to section 14(h) f the Alaska
Native Claims Settlement Act (85 Stat. 688, 704, 705; 42 U.S.C.
1613(h)), that are located within a 25-mile radius of the seat
of government of any such tribe
(D) Lands held in trust or restricted status by the United States
for an Indian tribe or individual member of such tribe that are located
within a 100-mile radius of the seat of government of any such tribe.
(E) Lands owned in fee simple by an Indian tribe.
(b)(2) Subject to section 101(a)(5) and (6), whenever existing Federal law vests
exclusive jurisdiction in the State over any of the areas described in paragraph
(1), a tribe may assume jurisdiction, under said paragraph, that is exclusive as
to any State or concurrent with the jurisdiction exercised by any State. Such a
tribe may limit its assumption of jurisdiction to types of child custody
proceedings, transfer jurisdiction under section 101(b), or otherwise accept
less than exclusive jurisdiction over child custody proceedings.
(c) Resolution of Governing Body. – Before any Indian tribe may assume
jurisdiction over Indian child custody proceedings such tribe shall
present to the Secretary a resolution of its governing body authorizing
the assumption of such jurisdiction. The governing body of an Indian
tribe referred to in subsection (b) shall include in its jurisdiction
assumption resolution a clear and definite description of the territory
over which jurisdiction is to be assumed.
(d) Publication Of Notice. – Not later than 60 days after receipt of a
jurisdiction assumption resolution from the governing body of an Indian
tribe, the Secretary shall publish in the Federal Register a notice
that includes the resolution and informs the public of the tribe’s
action. The Secretary shall also notify the affected State or States
of such resolution. The Indian tribe concerned shall assume jurisdiction
30 days after publication in the Federal Register of the notice of the
tribe’s resolution unless such resolution specifies a later date.
(e) Retrocession Of Jurisdiction. – Any Indian tribe that, pursuant to
this section, has assumed jurisdiction exclusive as to any State over
child custody proceedings may retrocede such jurisdiction as it assumed
to any such State by presenting to the Secretary a resolution of its
governing authorizing the retrocession of such jurisdiction. Not later
than 60 days after receipt of a jurisdiction retrocession resolution
from the governing body of an Indian tribe, the Secretary shall
publish in the Federal Register a notice that includes the resolution
and informs the public of the tribe’s action. The Secretary shall
also notify the affected State or States of such resolution. The
retrocession of jurisdiction
shall take effect 30 days after publication in the Federal
Register of the notice of the tribe’s resolution unless such
resolution specifies a later date. Nothing in this subsection
shall affect the right of any Indian tribe to assume jurisdiction,
pursuant to this section, subsequent to a retrocession of such
jurisdiction.
(f) Effect On Certain Actions. – Assumption or retrocession of
jurisdiction under this section shall not affect any action or
proceeding over which a court has already assumed jurisdiction,
except as may be provided in an order of such court or pursuant
to any agreement under section 109.
|
The
amendment provides that Indian tribes that became subject to
concurrent state jurisdiction over any child custody proceeding as a
result of P.L. 83-280 or any similar law may resume exclusive
jurisdiction over such proceedings by adopting an exclusive
jurisdiction assumption resolution which, in the case of an Indian
tribe without a reservation, must specify the geographic area over
which the tribe will exercise exclusive jurisdiction. Tribes without a
reservation have the option to assume less than exclusive
jurisdiction. The Secretary of Interior is required to publish the
resolution in the Federal Register. The assumption of
jurisdiction is effective 30 days thereafter. The amendment also
provides for tribes to retrocede the jurisdiction they assume and to
subsequently assume such jurisdiction again. |
|
H.R.
4733 Bill Language – Section 17 |
Explanation
|
|
§
1919.
Agreements between States and Indian tribes – subject coverage Agreements
(a)(1)
States and Indian tribes are authorized to enter into agreements with
each other respecting care and custody of Indian children and
jurisdiction over child custody proceedings, including agreements
which may provide for orderly transfer of jurisdiction on a
case-by-case basis and agreements which provide for concurrent
jurisdiction between States and Indian tribes.
(a)(2)
When an agreement entered into under paragraph (1) involves and Indian
tribe that has entered into a land claims settlement with the United
States or a State, or an Indian tribe that has been restored to
Federal supervision, or an Indian tribe that has been recognized in or
pursuant to any act of Congress, the jurisdiction provisions of any
such agreement, if any, may recognize the concurrent or exclusive
jurisdiction of any such tribe, within any service area established
for any such tribe, over child custody proceedings involving Indian
children who reside or are domiciled within any such area. Nothing in
this paragraph shall affect the right of any such tribe to exercise
exclusive jurisdiction under section 101(a) or to assume exclusive or
other jurisdiction within the areas
described
in section 108 (a) and (b). (b)
Such agreements may be revoked by either party upon one hundred and
eighty days’ written notice to the other party. Such revocation
shall not affect any action or proceeding over which a court
has already assumed jurisdiction, unless the agreement provides
otherwise. (c)
An agreement respecting the care and custody of Indian children,
entered into under subsection (a), shall govern such care and custody,
any law to the contrary not withstanding. For purposes of carrying out
any agreement entered into pursuant to this section, the terms of
‘Indian child’ and ‘Indian tribe’, as defined in any such
agreement, shall govern. Nothing in this subsection shall be construed
to authorize Federal Funds appropriated for Indian tribes, or for the
members of Indian tribes, to be expended for any other person or
entity. |
With
respect to tribes that have acquired land through a land claims
settlement or tribes that have been restored to federal supervision or
have been recognized pursuant to federal law, section 17 provides that
tribal/state agreements may recognize the right of these tribes to
exercise concurrent or exclusive jurisdiction over child custody
proceedings involving Indian children who reside or are domiciled
within any service area established for such tribes in any federal law
or within any area within which the Secretary of Interior is
authorized to take land in trust for such tribes. Section
17 also clarifies that the provisions of any agreement between a
federally-recognized tribe and a state governing the care and custody
of Indian children govern such care and custody even if the agreement
is in conflict with state law or other federal law or is at variance
with other ICWA provisions. This subsection further provides authority
for such agreements to extend ICWA protections to tribes not
recognized by the United
States
and the members of such tribes so long as no federal Indian funds are
spent on or for these tribes or their members.
|
|
H.R.
4733 Bill Language – Section 18 |
Explanation |
|
Fraudulent
Representation; Visitation 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
sanction under subsection (b) if that person knowingly and willfully -
(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact concerning whether for purposes of this Act - (A)
a child is an Indian child; or (B)
a parent is an Indian
(2)(A) makes any false, fictitious, or fraudulent statement,
omission, or representation; or (B)
falsifies a written document knowing that the document contains
a false, fraudulent, fictitious, or fraudulent statement or entry
relating to a material fact described in paragraph (1); or (3)
assists any person in physically removing a child from the United
States in order to obstruct the application of this Act. (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 of 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. Sec.
115 Visitation.
Notwithstanding
any other provision of law (including any State law) – (1)
a court may approve; if in the best interests of an Indian
child, as part of an adoption decree of that Indian child, an
agreement that states that a birth parent, an extended family member,
or the tribe of the Indian child shall have an enforceable right of
visitation or continued contact with the Indian 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 decree of adoption Sec.
116. Compliance Reviews (a)
In General. – The Secretary of Health and Human Services, in
consultation with the Secretary of the Interior and affected Indian
tribes, shall promulgate regulations for the review and determination
of whether States and State agencies, including agencies licensed by
the State, are acting in substantial conformity with the requirements
of this Act in matters involving Indian children subject to this Act. (b)
Elements of Review System. – The regulations referred to in
subsection (a) of this section shall – (1)
limit conformity reviews to States in which either a federally
recognized Indian tribe is located or there is an Indian population of
more than 10,000; (2)
require consultation with the Secretary of the Interior and
affected Indian tribes in carrying out any other conformity review; (3)
specify the timetable for conformity reviews, including – (A)
an initial review of each covered State within 3 years
following the promulgation of the regulations referred to in
subsection (a); (B)
a timely review of a covered State’s conformity following a
review in which such program was found not to be in substantial
conformity; and (C)
less frequent reviews of States which have been found to be in
substantial conformity, but such regulations shall require reviews
based on information which indicates that a State may not be in
conformity; (4)
specify the requirements subject to review, and the criteria to be
used to measure conformity with such requirements and to determine
whether there is a substantial failure to so conform; (5)
require the Secretary, not later than 10 days after a final
determination that a State or any of its agencies, including agencies
licensed by the State, is not in conformity, to notify the State of
the basis for determination; and (6)
Require the Secretary, with respect to any State found to have failed
substantially to so conform – (A)
to afford the State an opportunity, to adopt within 180 days of
such final determination, a corrective action plan, developed in
consultation with affected tribes and approved by the Secretary,
designed, with specific implementation timetables, to end the failure
to so conform; and (B)
to make technical assistance available to the State to the
extent feasible to enable the State to develop and implement such a
corrective action plan. (c)
Promulgation of Regulations. – The regulations referred to in
subsection (a) of this section shall be promulgated not later than 180
days following the effective date of this section. (d)
Enforcement of Nonconformity Determination. - (1)
In General. – Whether a State or any agency of the State,
including agencies licensed by the State, has failed to adopt a
corrective action plan within 180 days following a final determination
by the Secretary that such State or agency is not in conformity with
the requirements of this Act or has failed to implement a corrective
action plan within the timeframes specified in such plan, the Attorney
General may bring action against such State or agency in appropriate
United States district court seeking to compel the adoption of such an
action plan or, as the case may be, to enforce such corrective action
plan through declaratory, injunctive, or other appropriate equitable
relief. (2)
Action by Affected Indian Tribes. – An action described in
paragraph (1) may be brought by an affected Indian tribe against any
appropriate official of a State or, for failure to implement a
corrective action plan, against any agency licensed by a State. (3)
Intervention. – Upon timely application, any affected Indian
tribe shall have the right to intervene in a civil action commenced by
the Attorney General pursuant to paragraph (1) and the Attorney
General shall have the right to intervene in a civil action commenced
by any affected Indian tribe pursuant to paragraph (2). (4)
Limitation of Actions. – Any action under paragraph (1) may
not be brought more than 3 years after the date of the Secretary’s
determination. The computation of such 3-year period shall not include
any time during which an administrative proceeding was pending with
respect to the Secretary’s determination. (5)
Attorney’s Fees. – In any action or proceeding brought
pursuant to paragraph (2), the court, in its discretion, may allow
prevailing Indian tribe a reasonable attorney’s fee, including
expert fees, as part of the costs. For purposes of this subsection, an
Indian tribe shall be deemed to have prevailed where a judgment,
consent decree, or order results in the enforcement of all or part of
a corrective action plan or when a State agency of the State,
including an agency licensed by the State, voluntarily implements all
or part of corrective action plan as a result of the action. Sec.
117 Children of State Recognized Tribes. (a)
For purposes of sections 101(c), 102, 103, 104, 105, 106, 107,
110, 111, 112, 114 and 115 of this Act, the term ‘Indian child’
shall also include any unmarried person who is under age 18 who is a
member of or eligible for membership in a tribe recognized by a State,
and the term ‘Indian tribe’ shall also include such tribal
entities. (b)(1)
The provisions of this Act identified in subsection (a) shall apply to
children who are members of or eligible for membership in a tribe
recognized by a State, only when any such tribe has adopted and
provided to the Secretary a resolution – (A)
consenting to the application of such provisions to such
children (B)
describing the requirements for tribal membership and annexing
any constitution, laws, or regulations stating such requirements; (C)
providing the tribe’s address and telephone number; (D)
identifying one or more individuals who can be contacted with
respect to matters arising under this Act together with information on
how to contact any such individuals; (E)
identifying the name, address, and telephone number of the
tribe’s agent for service of process; and (F)
including, as an attachment, a law or other documentation from
a State establishing that such State recognizes such tribe and that
such State consents to the application of such provisions to such
tribe’s children. (b)(2)
In the absence of a resolution described in paragraph (1), the
provisions of this Act identified in subsection (a) shall apply to
such children whenever the Governor of a State provides to the
Secretary documentation, at a minimum, shall include the information
required by subsection (b)(1)(A), (C) and (F). (b)(3)
In the absence of a resolution described in paragraph (1), the
provisions of section 102(e) and (f) and section 105 shall apply to
such children whenever a party in an involuntary foster care placement
or termination of parental rights proceeding, within 30 days following
the filing of such proceeding is a member of or eligible for
membership in an Indian tribe recognized by a State and that such
State has consented to the application of such provisions to such
tribe’s children. (c)
Not later than 60 days after receipt of a resolution described in
subsection (b)(1) or the documentation described in subsection (b)(2),
the Secretary shall publish in the Federal Register a notice that
includes such resolution or documentation and informs the public that
the provisions of this Act identified in subsection (a) apply to the
tribe or tribes identified in such notice and to children who are
members of or eligible for membership in such tribe or tribes. The
Secretary shall also notify the affected State or States of such
publication. The provisions of this Act identified in subsection (a)
shall apply to such tribe or tribes and children 30 days after
publication in the Federal Register of the notice of such resolution
or documentation. (d)
The Indian tribe of a child covered under subsection (a) may by
resolution designate a federally recognized Indian tribe or an Indian
organization as its agent for the purposes of this Act. Any such
resolution shall not be effective unless delivered to the Secretary
together with a resolution of the designated Indian tribe or Indian
organization consenting to such designation. Not later than 60 days
after receipt of the resolution of an Indian tribe of a child covered
under subsection (a), the Secretary shall publish in the Federal
Register a notice that includes such resolution. The designation shall
be effective upon such publication unless the resolution specifies a
later effective date. |
Section
114 applies criminal sanctions to any person other than a birth parent
who does the following (applies to both involuntary and voluntary
placements): 1)
knowingly and willfully falsifies, conceals, or covers up a
material fact concerning whether a child is an Indian child or a
parent is an Indian 2)
makes any false, fictitious, or fraudulent statement, omission,
or representation or falsifies a written document knowing that the
document contains a false, fictitious, or fraudulent statement or
entry relating to the child or parent being Indian This
amendment also provides criminal sanctions for any person who
knowingly and willfully assists any person in removing a child from
the United States in order to obstruct the application of ICWA. Section
115 authorizes state courts to approve, as a part of an adoption
decree, a voluntary agreement, involving the adoptive family, birth
parent, member of the extended family, or the tribe, providing an
enforceable right of visitation or continued contact with the Indian
child after the adoption is final. Section
116 requires the Secretary of Health and Human Services to audit state
ICWA compliance in states where one or more federally recognized
tribes are located or states where more than 10,000 Indians reside.
States not in compliance are provided 180 days to adopt a corrective
action plan in consultation with affected Indian tribes. If a state
fails to adopt a corrective action plan or fails to implement or
comply with a corrective action plan, the Attorney General or an
affected Indian tribe may bring an action in federal court to compel
the adoption of a corrective action plan or to enforce the terms of a
corrective action plan that has been adopted. Section
117 applies the ICWA’s non-jurisdictional provisions to
child custody proceedings involving children who are members of tribes
recognized by a state but not recognized by the United States under
the following conditions: 1)
a tribe and the state consents to the application of these
provisions or 2)
the Secretary of Interior receives proof from a Governor
showing that the state has consented to the application of these
provisions, or 3)
with respect to the standard of proof in involuntary foster
care or termination of parental rights proceedings and the placement
preferences, a party presents evidence to the court, within 30-days
following the commencement of proceeding, that the child involved is a
member of or eligible for membership in a state-recognized tribe and
that the state has consented to the application of these provisions. The
amendment also requires the Secretary of Interior to publish notice in
the Federal Register informing the public that the specified
ICWA provisions apply to the children of a state-recognized tribe and
allows for such tribes to enter into agreements with federally
recognized tribes or Indian organizations to represent them in child
custody proceedings. |
|
H.R.
4733 Bill Language – Section 19 |
Explanation |
|
§
1903.
Definitions
For the purposes of this chapter, except as may be specifically
provided otherwise, the term- (1)
“child custody proceeding” shall mean and include- (i)
“foster care placement” which shall mean any action which
may result in the placement of an Indian child (ii)
“termination of parental rights” which shall mean any
action resulting in the termination of the parent-child relationship; (iii)
“ (iv)
“adoptive placement” which shall mean the permanent
placement of an Indian child in the home of a guardian or conservator
or for adoption, including any action resulting in a final decree of
adoption.
Such
term or terms shall not include a placement based upon an act which,
if committed by an adult, would be deemed a crime or upon an award, in
a divorce proceeding, of custody to one of the parents.
(2) “extended family members” shall be defined by the law
or custom of the Indian child’s tribe or, in the absence of such law
or custom, shall be a person who has reached the age of eighteen and
who is the Indian child’s grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent;
(3) “Indian” means any person who is a member of an Indian
tribe, or who is an Alaska Native and a member of a Regional
Corporation as defined in section 1606 of Title 43, or for purposes
of section 107, any person who is seeking to determine eligibility for
tribal membership;
(4) “Indian child” means any unmarried person who is
(c) if the child is not a member of or eligible for membership
in an Indian tribe, the child is considered by an Indian tribe to be a
part of its community and is a child or grandchild of a member of an
Indian tribe and - (i)
resides or is domiciled within the reservation of such
child’s parent or grandparent; (ii)
is an Alaska Native who resides or is domiciled within the
State of Alaska; or (iii)
resides or is domiciled within any lands describe din a
resolution of an Indian tribe adopted pursuant to section 108 (c).
(5) “Indian child’s tribe” means-
(a) the Indian tribe in which an
Indian child is a member or eligible for membership;
(b)
(c) in the case of an Indian child who is a member of,
eleigible for membership in, or considered to be part of the community
of, more than 1 tribe, the Indian tribe with which the Indian child
has the most significant contacts, unless the tribe with which the
child has the most significant contacts designates, with the consent
of the tribe to be designated as the child’s tribe, another tribe in
which the child is a member, eligible for membership, r of which the
child is considered to be part of the community
(6) “Indian custodian” means any Indian person who has
legal custody of an Indian child under tribal law or custom or under
State law or to whom temporary physical care, custody, and control has
been transferred by the parent of such child;
(7) “Indian organization” means any group, association,
partnership, corporation, or other legal entity owned or controlled by
Indians, or a majority of whose members are Indians;
(8) “Indian tribe” means any Indian tribe, band, nation, or
other organized group or community of Indians recognized as eligible
for the services provided to Indians by the Secretary because of their
status as Indians, including any Alaska Native village as defined in
section 1602(c) of Title 43;
(9) “parent” means any biological parent or parents of an
Indian child or any
(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;
(11) “Secretary” means the Secretary of the Interior; and
(12) “tribal court” means a court with jurisdiction over
child custody proceedings and which is either a Court of Indian
Offenses, a court established and operated under the code or custom of
an Indian tribe, or any other administrative body of a tribe which is
vested with authority over child custody proceedings.
|
Section
19 amends the definition of “child custody proceeding” to make
three technical changes. First, the amendment to the definition of
“foster care placement” clarifies that a foster care placement can
occur in either a voluntary or an involuntary proceeding and
regardless of whether a parent can have the child returned upon
demand. Second, the amendment to the definition of “preadoptive
placement” clarifies that this type of placement is not necessarily
temporary and also includes prospective adoptive placements made prior
to any termination of parental rights. Third, the amendment to the
definition of “adoptive placement” clarifies that permanent
placements of Indian children in the homes of guardians or
conservators are similar to adoptions and should be treated as such
for ICWA purposes. The amendment also conforms the definition of
"Indian" to the way in which the term is used in section 15.
The
amendment also changes the definition of “Indian child” to delete
the requirement that a child eligible for membership in a tribe must
also have a biological parent who is a member. The amendment further
enlarges this definition to include children not eligible for tribal
membership in a federally recognized tribe.
Under this amendment, ICWA coverage is expanded to include a
child not eligible for tribal membership where the child is socially
and culturally considered by the tribe to be a part of the tribal
community, the child has a parent or grandparent who is a tribal
member, and resides or is domiciled in an area subject to tribal
jurisdiction. The
definition of “Indian child’s tribe” is also amended to conform
to the change made in the definition of “Indian child.” This
amendment also permits the Indian child’s tribe to agree with
another tribe in which a child is a member or eligible for membership
that such other tribe act as the Indian child’s tribe. The
definition of “parent” is also changed to clarify that
for certain purposes, the term does not include a person whose
parental rights have been terminated. |
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H.R.
4733 Bill Language – Section 20 |
Explanation
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§
1931. Grants
for on or near reservation programs and child welfare codes. Statement
of purpose; scope of programs. Licensing
or Approval Qualifications for Assistance
(a)
The Secretary is authorized to make grants to Indian tribes and
organizations in the establishment and operation of Indian child and
family service programs on or near reservations and in the preparation
and implementation of child welfare codes. The objective of every
Indian child and family service program shall be to prevent the
breakup of Indian families and, in particular, to ensure that the
permanent removal of an Indian child from the custody of his parent or
Indian custodian shall be the last resort. Such child and family
service programs may include, but are not limited to - (2)
a system for licensing or otherwise regulating Indian foster
and adoptive homes (3)
the operation and maintenance of facilities for the counseling
and treatment of Indian families and for the temporary custody of
children (4)
family assistance, including homemaker and home counselors, day
care, afterschool care, and employment, recreational activities, and
respite care; (5)
home improvement programs (6)
the employment of professional and other trained personnel to
assist the tribal court in disposition of domestic relations and child
welfare matters; (7)
education and training of Indians, including tribal court
judges and staff, in skills relating to child and family assistance
and service programs (8)
a subsidy program under which Indian adoptive children may be
provided support comparable to that for which they would be eligible
as foster children, taking into account the appropriate State
standards of support for maintenance and medical needs; and (9)
guidance, legal representation and advice to Indian families
involved in tribal, State, or Federal child custody proceedings. (b)
Funds appropriated for use by the Secretary in accordance with this
section may be utilized as non-Federal matching share in connection
with funds provided under titles IV-B and XX of the Social Security
Act or under any other Federal financial assistance programs which
contribute to the purpose for which such funds are authorized to be
apportioned for use under this chapter. The provision or possibility
of assistance under this chapter shall not be a basis for the denial
or reduction of any assistance otherwise authorized under titles IV-B
and XX of the Social Security Act or any other federally assisted
program. |
Section
20 clarifies that any foster or adoptive home licensed or approved by
an Indian tribe shall be treated, for purposes of qualifying for
financial assistance under a federally assisted program, as a foster
or adoptive home licensed or approved by a state regardless of whether
such tribal home has complied with federal laws or regulations
applicable to the licensing by a state of foster or adoptive homes
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