Background

Congressman Don Young (R-AK) with Congressman Hayworth (R-AZ), Kildee (D-MI) and Ambercrombie (D-HI) introduced amendments to ICWA on July 15, 2003. The legislation is under the jurisdiction of the House Resources Committee. These amendments follow closely legislation that was introduced in three previous Congresses that sought to address implementation problems with the Indian Child Welfare Act, but contain new provisions that were not in previous bills.

Overview of Legislation

· Provide clarification on areas of the law where implementation has been inconsistent or problematic.

· Clarify and strengthen the process regarding voluntary adoptions of Indian children

· Provide mechanisms for Indian parents to receive more information on their rights and options under the Indian Child Welfare Act

· Provide mechanisms for greater oversight of the law and deterrents to those who would purposely avoid applying the law.

Key Provisions in the Legislation

Provisions in H.R. 2750 include the following:

Nullify the Existing Indian Family Exception and clarify that the ICWA applies to all Indian children involved in “child custody proceedings” (as defined in the ICWA)

Define the minimum efforts (active efforts) that must be undertaken to prevent the breakup of an Indian child’s family through involuntary out-of-home placement.

Require detailed notice to Indian tribes in all voluntary child custody proceedings, to parents in voluntary adoption proceedings, and to parents and tribes in all involuntary proceedings.

Clarify the right of Indian tribes to intervene in all voluntary state court child custody proceedings, provided that the tribe files a notice of intent to intervene or a written objection within 45 days of receiving notice of a voluntary termination of parental rights or within 100 days of receiving notice of a particular adoptive placement, and certifies that a child is a member, eligible for membership, or is the child or grandchild of a member and part of the tribe’s community.

Require notice to extended family members and recognize their right to intervene in state child custody proceedings.

Require attorneys, public and private agencies to provide detailed information to Indian parents of their rights under ICWA and all available placement options.

Define a parents’ rights to withdraw consent to an adoption to 6 months after relinquishment of the child or 30 days after the filing of an adoption petition, whichever is later.

Clarify tribal jurisdiction in Alaska.

Facilitate the ability of tribes without reservations, including tribes in Alaska and Oklahoma,or with disestablished reservations to assume jurisdiction over child custody proceedings.

Narrow the grounds upon which state courts can refuse to transfer cases to tribal courts.

Clarify tribal court authority over children transferred to tribal court jurisdiction.

Define the circumstances under which state ICWA violations may be reviewed by federal courts and establish a federal review system of state ICWA compliance.

Provide for criminal sanctions for anyone who assists a person to lie about their Indian ancestry for the purposes of applying the ICWA.

Allow state courts to enter enforceable orders providing for visitation or contact between tribes, natural parents, extended family and an adopted child.

Extend ICWA to cover children of state recognized Indian tribes where there is an agreement, and children who reside or are domiciled on a reservation and are the child or grandchildren of a member, but who are not eligible for tribal membership.

Make it easier for Indian adoptees to gain access to their birth records.

Establish that foster and adoptive homes licensed or approved by Indian tribes in compliance with the Indian Child Protection and Family Violence Prevention Act shall satisfy the requirements for foster and adoptive home licensing under any other federal law.

Clarify that the terms of tribal-state agreements regarding the care and custody of and jurisdiction over Indian children shall be controlling even when another federal law may have different requirements and describe the scope of tribal jurisdiction that may be included in agreements involving tribes that have been recognized by act of Congress, restored to federal supervision, or secured a land claims settlement.

What Can You Do to Help?

· Additional sponsors are needed for the House legislation. Contact your Congressman and ask them to be a co-sponsor of the legislation.

· The legislation has not had a hearing in the House of Representatives and would benefit from a hearing to provide the public an opportunity to comment on the legislation and inform Congressional members of the need for the amendments. Ask the co-sponsors of the legislation to schedule a hearing on the legislation.

· Seek out support for the amendments from other child advocacy groups or government officials.

If you would like more information on this legislation, please contact NICWA staff member, David Simmons, at desimmons@nicwa.org or (503) 222-4044, ext. 119.