A Proposal for Amendments to the Indian Child Welfare Act

The Indian Child Welfare Act was enacted in 1978, and has never been amended since its enactment.  After doing a fair amount of research into ICWA, as well as dealing with the requirements of ICWA in my profession and discussing it with others, it is clear to me that ICWA needs to be amended.  Following is a bill with my proposed amendments to ICWA. In my next post, I will provide an explanation into why I believe these amendments are necessary as a whole, but will also explain the amendments section by section.  That post will also include a bibliography of some of the sources that I used to assist in my drafting of this proposal.  I welcome feedback in the comments section regarding the contents of this set of proposed amendments and the rationale, as well as your passing along these blog entries to your legislators if you are so inclined.

A BILL

To make technical and clerical amendments to the Indian Child Welfare Act of 1978. 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

            This Act may be cited as the “Indian Child Welfare Act Amendments of 2011”.

SEC. 2. PURPOSE. 

            The purpose of this Act is to make technical and clerical amendments to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963. 

SEC. 3. FINDINGS.

            The Congress finds—

(1)   that the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. is of continued importance and practicability;

(2)   that there are minor clerical errors in the Act;

(3)   that certain amendments are necessary to correct those clerical errors;

(4)   that there have been misinterpretations and misunderstandings of provisions of the Act;

(5)   that certain technical amendments are necessary to correct misinterpretations and misunderstandings of provisions of the Act. 

SEC. 4. CONGRESSIONAL FINDINGS. 

            Section 2(1) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901(1)) is amended as follows—by striking “tribes” and inserting “Tribes”. 

SEC. 5. DEFINITIONS. 

            Section 4(5) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1903(5)) is amended as follows—by adding to the end the following: “and (c) there shall be only one tribe deemed to be the Indian child’s tribe”.

SEC. 6. CONGRESSIONAL DECLARATION OF POLICY AND APPLICABILITY

            Section 3 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1902) is amended as follows—

(1)  by inserting “(a)” before “The Congress”;

(2)  by inserting “by assuring that Indian children have the opportunity to develop or enhance their relationship with their families and Indian tribes” after “culture”; and

(3)  by adding to the end the following: “(b) This Act shall apply to any Indian child involved in a child custody proceeding regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, or has maintained a social or cultural relationship with an Indian tribe.”.

SEC. 7. EXCLUSIVE JURISDICTION OVER CHILD CUSTODY PROCEEDINGS.

            Section 101(a) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(a)) is amended as follows—

(1)  by inserting after “tribal court” the following: “or has become subject to a tribal court’s jurisdiction under subsection (b)”;

(2)  by inserting at the end the following: “In situations in which there is uncertainty about the residence or domicile of the child, or whether the child is a ward of a tribal court, shall be resolved in favor of the tribe’s exercise of exclusive jurisdiction.”; and

(3)  by inserting at the end the following: “The tribal court of the tribe may decline to exercise exclusive jurisdiction over custody proceedings, but must do so expressly, affirmatively, and in writing.  If a tribe declines jurisdiction, the state court shall assume jurisdiction over the proceedings.”.

SEC. 8. TRANSFER OF JURISDICTION TO TRIBAL COURT.

            Section 101(b) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(b)) is amended to read as follows—

            “(b) TRANSFER OF PROCEEDINGS; DECLINATION BY TRIBAL COURT.—In any state court child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe and not a ward of a tribal court, and upon the petition of either parent or the Indian custodian or the Indian child’s tribe, the court shall transfer such proceeding to the jurisdiction of the tribe, unless

(1)  either parent objects to the transfer of jurisdiction;

(2)  the tribal court of the Indian child’s tribe expressly, affirmatively, and in writing, declines the transfer of jurisdiction;

(3)  the tribal court of the Indian child’s tribe notifies the State court, in writing or through a representative, that the tribal court does not have subject matter jurisdiction;

(4)  in circumstances where the evidence necessary to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses, and 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 Indian tribe’s rules of evidence or discovery; or

(5)  there is good cause to the contrary.”

SEC. 9. INTERVENTION IN STATE COURT PROCEEDINGS.

            Section 101(c) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(c)) is amended—

(1)  by adding “(1)” before “In”;

(2)  by striking “proceeding for the foster care placement of, or termination of parental rights to,” and inserting “child custody proceeding involving”;

(3)  by adding at the end the following: “(2) Any motion, application, or other form of request to intervene in a child custody proceeding pursuant to paragraph (1) may be filed pro se or through legal counsel.”.

SEC. 10. FULL FAITH AND CREDIT.

            Section 101(d) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(d)) is amended—

(1)   by striking “and judicial proceedings” the first place it appears and inserting “judicial proceedings, and tribal court judgments”;

(2)   by striking “and judicial proceedings” the second place it appears and inserting “judicial proceedings, and judgments”. 

SEC. 11. PENDING COURT PROCEEDINGS

            Section 102 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1912) is amended in subsection (a)—

(1)  by inserting “(1)” after (a)”;

(2)  by striking, in the first sentence, “registered” and inserting “certified”;

(3)  by adding at the end the following: “(2) If more than one tribe may be the Indian child’s tribe, each tribe must be notified of the pending proceedings and of its right to intervention so that each tribe may be afforded the opportunity to present evidence to the court that the tribe should be deemed the Indian child’s tribe.  After an adjudication of the Indian child’s tribe, only that tribe must receive further notice of pending proceedings.”

(4)  by adding at the end the following: “(3) No involuntary child custody proceeding commenced prior to the birth of the Indian child shall be valid.  Nothing in this paragraph shall limit the authority of a State court to require that the prospective parent of an unborn Indian child receive remedial and rehabilitative services designed to protect the health of such parent and unborn child and prevent the foster care or adoptive placement of such child after birth.”.

(5)  by adding at the end the following: “(4) The requirement of qualified expert witnesses applies regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, has maintained a social or cultural relationship with an Indian tribe and regardless of whether a cultural bias could be implicated.”.

SEC. 12. TRIBAL AFFILIATION INFORMATION.

            Section 107 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1917) is amended by striking the existing section and replacing with the following:

“SEC. 107. DISCLOSURE OF INFORMATION REGARDING TRIBAL AFFILIATION.

            “Upon petition of an adopted Indian who is 18 years of age or older, or of an adoptive parent or guardian of an Indian who is under the age of 18 or incompetent, or of the Indian tribe of an adopted Indian, to the court which entered the final decree of adoption or any other court of competent jurisdiction for the release of information regarding 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 the individuals tribal relationship.”.

SEC. 13. SEVERABILITY.

            Section 403 of the Indian Child Welfare Act of 1978 (25 U.S.C. 1963) is amended to read as follows: “SEC. 403. SEVERABILITY.

“If any provision of this Act is found or held to be invalid, all valid provisions that are severable from the invalid provision shall remain in effect and not be affected thereby.  If a provision of this Act is found or held to be invalid in one or more of its applications, the provision shall remain in effect for all valid applications that are severable from the invalid applications and not be affected thereby.”. 

SEC. 14. EFFECTIVE DATE.

            This Act is effective upon passage by both Houses of Congress and signature by the President of the United States of America, and shall be prospectively effective