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.    

 

H.R. 4733 Bill Language – Section 2

Explanation

§ 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. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

 

(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.


 

H.R. 4733 Bill Language – Section 3

Explanation

§ 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 for the foster care placement of, or termination of parental rights to, involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, or on any other lands described in a resolution of an Indian tribe adopted pursuant to section 108 (c), the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe,: Provided . That such transfer shall be subject to declination by the tribal court of such tribe. unless-

 

“(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.

 


 

H.R. 4733 Bill Language – Section 4

Explanation

§ 1911. Indian tribe jurisdiction over Indian child custody

proceedings

 

Intervention In State Court Proceedings

 

(c) State court proceedings; intervention.

In any State court proceeding for the foster care placement of, or termination of parental rights to, Except as provided in section 103 (e), in any State court child custody proceeding involving an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding and any member of the Indian child’s extended family shall have a right to intervene in order to seek the placement of the child in accordance with section 105.

 

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

Explanation

§ 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, and judicial proceedings judicial proceedings, and tribal court judgments of any Indian tribe applicable to Indian child custody proceedings and to such other proceedings, including divorce proceedings, as may involve the determination of an Indian child’s custody to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings judicial proceedings, and judgments of any other entity.

 

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 6

Explanation

§ 1912. Pending court proceedings-Notice; time for commencement of proceedings; additional time for preparation

 

Pending Court Proceedings

 

(a)

(1)   In any State court, where the court knows or has reason to know than an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide requisite the notice to the parent or Indian custodian or tribe. No foster care placement or termination of parental rights shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided. That the parent or Indian custodian or the tribe shall, upon request be granted up to twenty additional days to prepare for such proceeding.

 

(2)   Any involuntary child custody proceeding in a State court commenced prior to the birth of the Indian child shall not be valid

 

(3)   Any notice under paragraph (1) shall contain information required under paragraphs (1), (2) through (5), and (7) through (10) of section 103 (d). In addition, such notice shall include any complaint or petition and court orders and contain the following:

 

“(A) The child’s residence address and domicile, if known.

 

  (B) A list containing the name, address, and date of birth (if applicable) the maiden name of each parent and grandparent of the Indian child, if –

(i)                  known after inquiry of birth parent

            or

(ii)                otherwise ascertainable through other reasonable inquiry.

 

(C)   A statement of the nature of the proceeding, the allegations made in support of the complaint or petition, and the relief sought.

 

(D)   A statement of the right of the parent or Indian custodian and the Indian child’s tribe to request that the proceeding be transferred to the tribal court of such tribe.

 

(E)    A statement that a parent or Indian custodian unable to afford counsel may request that the court appoint counsel to represent such parent or Indian custodian.

 

(F)    If applicable, a statement of the right of the parent or Indian custodian and the Indian child’s tribe to request at least 20 additional days from the date of receipt of notice of the proceeding to prepare for the proceeding.

 

(G)   A statement of the potential legal consequences of an adjudication of the complaint or petition on the rights of any parent or Indian custodian and the potential legal consequences for failing to respond to the complaint or petition.

 

(H)   A statement as to whether a written response to the complaint or petition must be filed and, if so, the date that the response must be received by the court. The statement shall include an explanation of the legal consequences of failure to file such written response.

 

(I)      A statement of the right of each party to examine all reports or other documents filed with the court upon which any decision with respect to the complaint or petition may be based.

 

(b) same as in original ICWA

(c) same as in original ICWA

(d) same as in original ICWA

(e) same as in original ICWA

(f) same as in original ICWA

 

(g)(1) Whenever, following the involuntary termination of the parental rights of a parent of an Indian child, and Indian child is placed in a preadoptive or adoptive placement, including termination or change of such placement, or is the subject of an adoption proceeding, the party seeking the placement of the child or filing the proceeding shall provide written notice of the placement or proceeding to the tribe of such Indian child in accordance with subsection c(2)(A)(ii) and (iv) and (3)(A) of section 103. 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), (2) through (10), and (13) of section 103(d) and paragraph (2)(A) of subsection (a). In addition, such notice shall include any complaint or petition and court orders and contain the following:

(A)    A list containing the name, address, date of birth, and (if applicable) the maiden name of each parent and grandparent of the Indian child, if –

 

(i)                  known after inquiry of a birth parent;

or

 

(ii)                otherwise ascertainable through other reasonable inquiry

 

(B)    A statement of the circumstances that supported a termination of the parental rights of the parents of the Indian child.”

 

 

 

(h)(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 (a). The notice shall be provided in accordance with subsection (c)(2)(A) and (3)(A) of section 103. 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 section 103(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 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 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 take any action required in order to be so considered.”

 

 

 

 

 

 

 

 

 

Section 6 invalidates any involuntary child custody proceeding commenced prior to the birth of an Indian child. Section 6 also specifies the content of the notices required to be sent to parents, Indian custodians, and Indian tribes concerning involuntary foster care or termination of parental rights proceedings. In general, the notices must provide those notified with an explanation of their legal rights under ICWA and state law.

 

Section 6 also requires notice to the Indian child’s tribe of any preadoptive or adoptive placement or proceeding, involving an Indian child, that occurs after an involuntary termination of the parental rights of a parent of such a child and specifies the content of this notice and the time for sending the notice. In addition, the amendment requires that specified members of the Indian child’s extended family be notified whenever the foster care, preadoptive or adoptive placement of an Indian child is sought as part of or as a consequence of an involuntary child custody proceeding or other action under section 102. The content and time for sending these notices are also specified.

 

 

 


 

H.R. 4733 Bill Language - Section 7

Explanation

§ 1913. Parental rights; voluntary termination

 

Voluntary Termination of Parental Rights

 

(a)

     (1)Where any parent or Indian custodian voluntarily consents to foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully understood by the parent or Indian custodian. Where any parent or Indian custodian voluntarily consents to foster care or preadoptive or adoptive placement or to termination of parental rights, such consent shall not be valid unless –

 

“(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”

The court shall also certify The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid. An Indian custodian who has legal authority to consent to an adoptive placement shall be treated as a parent for the purposes of the notice and consent to adoption provisions of this Act.

 

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.

 

 


 

H.R. 4733 Bill language - Section 8

Explanation

§ 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.

 

 

 

 


 

H.R. 4733 Bill Language - Section 9

Explanation

§ 1913. Parental rights; voluntary termination

 

Notice to Tribes

 

(c)(1) In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent. A party that seeks the voluntary termination of the parental rights of a parent of an Indian child, including –

“(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

Explanation

§ 1913. Parental rights; voluntary termination

 

Content of Notice

 

(d) Collateral attack; vacation of decree and return of custody; limitations

After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law.

 

(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

 


 

H.R. 4733 Bill  Language – Section 11

Explanation

§ 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.

 

H.R. 4733 Bill Language – Section 12

Explanation

§ 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.

 


 

H.R. 4733 Bill Language – Section 13

Explanation

 § 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 from whose custody such child was removed, and the Indian child’s tribe 
          may petition any Federal court of competent jurisdiction to invalidate such action upon a 
          showing that such actions violated any provision of sections 1911, 1912, and 1913 of this title 101, 
          102, 103, and 105 of this Act.

 

     
          (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

Upon application by an Indian individual who has reached the age of 18 and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of tribal affiliation, if any, of the individual’s biological parents and protect any rights flowing from the individual’s tribal relationship.

“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) Petition; suitable plan; approval by Secretary. Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody

proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable

plan to exercise such jurisdiction.

 

(b) Criteria applicable to consideration by Secretary; partial retrocession.

    (1) In considering the petition and feasibility of the plan of a tribe under subsection (a) of this section, the Secretary may

consider, among other things:

whether or not the tribe maintains

    a membership roll or alternative provision

    for clearly identifying the persons who

    will be affected by the reassumption of

    jurisdiction by the tribe;

the size of the reservation or

    former reservation area which will be

    affected by retrocession and reassumption of

    jurisdiction by the tribe;

the population base of the tribe,

    or distribution of the population in

    homogeneous communities or geographic areas;

    and

the feasibility of the plan in

    cases of multitribal occupation of a single

    reservation or geographic area.

    (2) In those cases where the Secretary determines that the jurisdictional provisions of section 1911(a) of this title are not feasible, he is authorized to accept partial retrocession which will enable tribes to exercise referral jurisdiction as provided in section 1911(b) of this title, or, where appropriate, will allow

them to exercise exclusive jurisdiction as provided in section 1911(a) of this title over limited community or geographic areas without regard for the reservation status of the area affected.

 

(c) Approval of petition; publication in Federal Register; notice; reassumption period; correction of causes for disapproval.If the Secretary approves any petition under subsection (a) of this section, the Secretary shall publish notice of such approval in the Federal Register and shall notify the affected State or States of such approval.  The Indian tribe concerned shall reassume jurisdiction sixty days after publication in the Federal Register of notice of approval.  If the Secretary disapproves any petition under subsection (a) of this section, the Secretary shall provide such technical assistance as may be necessary to enable the tribe to correct any deficiency which the Secretary identified as a cause for disapproval.

 

(d) Pending actions or proceedings unaffected.

Assumption of jurisdiction under this section shall not affect any proceeding over which a court has already assumed jurisdiction, except as may be provided pursuant to any agreement     under section 1919 of this Act.

 


          (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 removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or in the home of a guardian or conservator, where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii)                 “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii)                preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and  “preadoptive placement” which shall mean the placement of an Indian child in a foster home or institution or in the home of a guardian or conservator after the termination of parental rights, but prior to or in lieu of adoptive placement, or any action which results in the prospective adoptive placement of an Indian child prior to any termination of parental rights;

(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.

(iv)               “adoptive placement” which shall mean the permanent placement of an Indian child 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 under less than age eighteen years of age and-

is either (a) is a member of an Indian tribe;

or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; or

       (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; or

       (b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;  for an Indian child described in subparagraph (c) of paragraph (4), an Indian tribe that considers such a child to be part of the community; or

       (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 Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.  Except for the purposes of sections 103(b) and (h), 104, 105(d), 106(a) and (b), 107 and 301, the term shall not include any person whose parental rights have been terminated.  It does not include the unwed father where paternity has not been acknowledged or established;

   (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.


 

H.R. 4733 Bill Language – Section 20

Explanation

§ 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. For purposes Notwithstanding any law or regulation to the contrary, for purposes of qualifying for assistance under a federally assisted program, licensing or approval of foster or adoptive homes or institutions by an Indian tribe shall be deemed equivalent to licensing or approval by a State.

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