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                                                       Calendar No. 454
104th Congress                                                   Report

 2d Session                                                     104-288

                           MINORITY CHILDREN


                 June 24, 1996.--Ordered to be printed


    Mr. McCain, from the Committee on Indian Affairs, submitted the 

                              R E P O R T

                        [To accompany H.R. 3286]

    The Committee on Indian Affairs, to which was referred the 
bill (Title III of H.R. 3286), the Adoption Promotion and 
Stability Act of 1996, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill, as amended, do pass.
    The Committee on Indian Affairs, to which was referred 
Title III of the bill (H.R. 3286) to help families defray 
adoption costs, and to promote the adoption of minority 
children, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 


    The purpose of H.R. 3286 is to help families defray 
adoption costs, and to promote the adoption of minority 

               background on indian child welfare policy

    The Indian Child Welfare Act of 1978 (ICWA) was enacted by 
the Congress in response to growing concerns in the 1970's over 
the consequences of the separation of large numbers of Indian 
children from their families and tribes through adoption or 
foster care placement. In particular, the Congress expressed 
concern over the inordinately high number of placements of 
Indian children into non-Indian homes and environments, 
concluding that ``[t]he wholesale separation of Indian children 
from their families is perhaps the most tragic and destructive 
aspect of American Indian life today.'' \1\ Congressional 
oversight hearings in 1974, 1977 and 1978 documented many 
examples of this wholesale removal of Indian children from 
their families and homes. Studies conducted by the Association 
of American Indian Affairs (AAIA) prior to enactment of ICWA 
revealed that 25 to 35 percent of all Indian children had been 
separated from their families and placed into adoptive 
families, foster care, or other institutions.\2\ In certain 
States, the problem of public and private agencies removing 
Indian children from their homes and placing them off the 
reservation in non-Indian homes was more widespread. For 
example, in Minnesota from 1971 through 1972 nearly one in 
every four Indian infants under the age of one year old was 
placed for adoption. Over this same period the adoption rate of 
Indian children was five times that of non-Indian children and 
approximately 90% of these Indian placements were in non-Indian 
    \1\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
    \2\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
    \3\ Id. at page 9.
    Several witnesses in hearings before the Senate and House 
Committees testified about the serious adjustment problems 
encountered by these Indian children as they reached 
adolescence and then later as they themselves became parents. 
Chief Calvin Isaac of the Mississippi Band of Choctaw Indians 
testified that:

          Culturally, the chances of Indian survival are 
        significantly reduced if our children, the only real 
        means for the transmission of the tribal heritage, are 
        to be raised in non-Indian homes and denied exposure to 
        the ways of their People. Furthermore, these practices 
        seriously undercut the tribes' ability to continue as 
        self-governing communities. Probably in no area is it 
        more important that tribal sovereignty be respected 
        than in an area as socially and culturally 
        determinative as family relationships.\4\
    \4\ Hearings on Indian Child Welfare before the Senate Subcommittee 
on Indian Affairs. 95th Cong., 1st Session (1977).

    In recognition of the best interest of Indian children and 
the interest of Indian tribes in the welfare of their children, 
the Congress carefully crafted the ICWA to protect the 
important traditional role played by an Indian tribe and the 
extended family in child welfare. The result is that the ICWA 
creates a jurisdictional framework that balances the interest 
of Indian tribal governments with the interest of State 
governments in determining the best interests of Indian 
children. The ICWA recognizes the exclusive jurisdiction of 
tribal courts for proceedings involving an Indian child who 
resides or is domiciled on Indian lands. For other proceedings 
involving Indian children, the ICWA provides for concurrent 
jurisdiction with tribal and State courts. In these 
proceedings, ICWA creates a statutory presumption that the 
tribal court will have jurisdiction over matters involving 
Indian children. This jurisdictional framework was favorably 
described in the majority opinion of the U.S. Supreme Court in 
Mississippi Band of Choctaw Indians v. Holyfield:

          At the heart of the ICWA are its provisions 
        concerning jurisdiction over Indian child custody 
        proceedings. Section 1911 lays out a dual 
        jurisdictional scheme. Section 1911(a) establishes 
        exclusive jurisdiction in the tribal courts for 
        proceedings concerning an Indian child ``who resides or 
        is domiciled within the reservation of such tribe,'' as 
        well as for wards of tribal courts regardless of 
        domicile. Section 1911(b), on the other hand, creates 
        concurrent but presumptively tribal jurisdiction in the 
        case of children not domiciled on the reservation: on 
        petition of either parent or the tribe, state-court 
        proceedings for foster care placement or termination of 
        parental rights are to be transferred to the tribal 
        court, except in cases of ``good cause,'' objection by 
        either parent, or declination of jurisdiction by the 
        tribal court.\5\
    \5\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 
36 (1989).

    Founded on the assumption that the most basic trust 
responsibility of the Federal government is to provide 
protection and assistance to Indian children, Indian families 
and Indian tribes, the ICWA recognizes that the most 
appropriate means of providing that protection and assistance 
is through the Indian tribe itself. Well-settled principles of 
federal law establish that the primary authority in matters 
involving the relationship of an Indian child to his or her 
parents or extended family should be the Indian child's tribe. 
The Supreme Court in Holyfield recognized this principle.

          Tribal jurisdiction over Indian child custody 
        proceedings is not a novelty of the ICWA. Indeed, some 
        of the ICWA's jurisdictional provisions have a strong 
        basis in pre-ICWA case law in federal and state 
    \6\ Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30 
(1989) at 42.

    The Act also establishes other procedural safeguards for 
Indian child custody proceedings that include requirements 
concerning notice and appointment of counsel, parental and 
tribal rights of intervention, and procedures governing 
voluntary consent to termination of parental rights. Finally, 
the Act requires that tribal court decisions on child custody 
matters shall be accorded full faith and credit.
    In creating these procedural safeguards, the language of 
the statute makes it demonstrably clear that the Congress 
sought to ``protect the best interests of Indian children and 
to promote the stability and security of Indian tribes and 
families by the establishment of minimum Federal standards for 
the removal of Indian children from their families and the 
placement of such children in foster or adoptive homes which 
will reflect the unique values of Indian culture, and by 
providing for assistance to Indian tribes in the operation of 
child and family service programs.'' \7\
    \7\ 25 U.S.C. Sec. 1902.
    In the eighteen years since the ICWA was enacted, 
comprehensive, up-to-date and accurate statistical information 
on the placement of Indian children under the ICWA is 
essentially not available. A nationwide survey conducted in 
1988 found that the rate of Indian children in out-of-home 
placements as compared to non-Indian children remained 
disproportionately high.\8\ The authors of this report 
indicated that ten years after passage of the ICWA, Indian 
children continued to be placed in substitute care at a rate 
3.6 times greater than the rate for non-Indian children.\9\ 
Although many things influence such statistics, the authors 
found a primary factor to be that implementation of the ICWA 
has been uneven and that often the Act has been ignored by 
State and private agencies.\10\ The report concluded that 
despite these discouraging findings, where the ICWA has been 
implemented and honored, there has been measurable progress. 
For example, there was a decline in public agency placements 
despite an increase in out-of-home placements for Indian 
children overall.'' \11\ The majority of these placements took 
place in tribally-operated child welfare programs, which would 
indicate that Indian tribal governments were taking a more 
active role in providing child welfare services to their 
    \8\ Margaret Plantz, et al., ``Indian Child Welfare: A Status 
Report'' (1988).
    \9\ Id. at page 9-1.
    \10\ Id. at page ES-8.
    \11\ Id. at page ES-9.

                         title iii of h.r. 3286

    Title III of H.R. 3286 amends Title I of the Indian Child 
Welfare Act of 1978 by creating several new sections to the 
Act. Section 301 of H.R. 3286 would exempt from the application 
of the ICWA all custody proceedings involving a child who is 
not a resident of or domiciles on an Indian reservation and 
whose biological parents if ``of Indian descent'' and does not 
maintain ``significant social, cultural or political 
affiliation'' with his or her Indian tribe. This section 
provides that a State court would make the determination that 
an Indian parent does or does not maintain significant social, 
cultural, or political affiliations with his or her Indian 
tribe. Finally, section 301 provides that a State court's 
determination that the ICWA does not apply because an Indian 
parent has failed to maintain ``significant social, cultural, 
or political affiliations'' with his or her tribe would be a 
``final'' determination which would not be reviewable by 
appellate courts.
    Only parents and children who are eligible to be members of 
a Federally-recognized Indian tribe are not covered by the ICWA 
procedures. The U.S. Supreme Court has long recognized that 
tribal membership is a political rather than a racial 
classification. Section 301 would change the definition of an 
Indian under the ICWA from a political classification to a 
racial one and require a determination that a biological parent 
sufficiently maintain personal ties with his or her Indian 
tribe. Such a change could have the effect of expanding the 
definition of those individuals covered by the ICWA to all 
persons claiming Indian descent, regardless of whether there is 
an Indian tribe which would deem them eligible for membership. 
By shifting the application of the ICWA to persons of Indian 
descent, this section could render the ICWA vulnerable to legal 
challenge as furthering a constitutionally-impermissible racial 
    A fundamental precept, unchanged since the inception of 
Federal-Indian law and reaffirmed by the U.S. Supreme Court in 
Santa Clara Pueblo v. Martinez,\12\ is that Indian tribal 
governments have the exclusive authority to determine 
membership criterion under tribal laws and constitutions. These 
determinations of tribal membership are considered to be the 
most basic exercise of tribal sovereignty and self-governance. 
Section 301 would take this fundamental power away from Indian 
tribes and give it to State courts, vesting in the State 
judiciary the power to decide whether a person is of Indian 
descent and if so, whether that person maintains ``significant 
social, cultural, or political affiliation'' with an Indian 
tribe. State courts are poorly equipped to make fundamental 
determinations of tribal membership and tribal affiliations.
    \12\ Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
    Under section 301, a State court making tribal affiliation 
determinations would be exempted from any requirement to notify 
an Indian child's biological family or tribe of the pending 
determination. The ICWA now requires prior notice by a State 
court to an Indian child's biological family and tribe before 
making custody determinations in certain cases. Section 301 
would authorize a State court to make a determination on the 
Indian status of the child without any prior notice to 
interested members of the child's biological family or tribe, 
and thereafter exempt the child's case from all remaining 
notice and participatory requirements of the ICWA.
    The application of the ICWA under current law is premised 
on a child's eligibility for political membership in a 
Federally-recognized Indian tribe. Tribal membership can be 
renounced, but each Indian tribe's membership criteria and 
enrollment procedures are different, as is the manner in which 
those actions are documented. In some cases, a tribal roll is 
used. In others, a voting list is used that is limited to those 
persons of majority age. Still other tribal constitutions limit 
formal membership to those residing on a reservation or within 
the boundaries of a Native village, treating those who migrate 
for work or school as ``eligible'' to assume membership upon 
their return. Section 301 proposes to empower a State court to 
decide whether a parent is an Indian at the time of the child 
custody proceeding. Under the procedures set out in Section 
301, an Indian would be found to have no tribal affiliation at 
the time of inception of the custody proceeding even though he 
or she was born and raised within an Indian community, was 
enrolled as a member, but then moved to go to college and thus 
under the tribal constitution was no longer on the roll but 
merely ``eligible'' to be an enrolled member upon his or her 
    Finally, section 301 seeks to make a State court's decision 
on the applicability of the Indian Child Welfare Act non-
reviewable by appellate courts. Under the process set out in 
this section, a State court is not required to provide any 
notice to an Indian child's biological family or Indian tribe 
in making a determination of whether an individual is ``of 
Indian descent'' and has maintained sufficient affiliation with 
the tribe. Therefore, a State court could move with dispatch in 
a summary ex parte proceeding early in a case involving an 
Indian child and then have its determination be immune from 
appeal if an Indian biological family or tribe later learn of 
the custody proceeding after the Indian status determination 
has been made.
    Section 302 of H.R. 3286 would amend Title I of the Indian 
Child Welfare Act by creating a new section 115. Section 302 
declares that, as a matter of Federal law, anyone 18 years or 
older who is not a member of an Indian tribe ``may become a 
member of an Indian tribe only upon the person's written 
consent.'' This provision is not limited to the context of 
Indian child welfare proceedings but could apply to all 
applications of tribal membership in Federal law. This section 
would also authorize a State court to determine what is a 
biological parent's ``actual date of admission to membership in 
the Indian tribe'' and declare that tribal's membership ``shall 
not be given retroactive effect.'' Under this provision, the 
fundamental authority to determine individual membership is an 
Indian tribe would be vested in the State judiciary, severely 
undermining longstanding principles of Federal Indian law and 
tribal self-government.
    Further, these provisions would place a substantial, 
unfunded Federal mandate upon Indian tribes to maintain 
evidence of each member's written consent to membership. 
Failure to maintain such files would cause, when combined with 
the other provisions of this Title, a significant loss of 
tribal rights and privileges. While these provisions appear to 
seek to make tribal membership voluntary, tribal membership is 
already voluntary in every instance since under tribal law 
membership can be renounced by an Indian of majority age. 
Renouncing of one's tribal membership is typically done in 
instances when an Indian is eligible for membership in more 
than one tribe, but is required by a particular tribe's law to 
hold membership in no other tribe.
    Finally, Section 303 of H.R. 3286 provides that the 
amendments made by this Title would take effect upon enactment 
and apply to any child custody proceeding in which a final 
decree has not been entered as of the date of enactment. This 
amendment would apply new rules to a number of child custody 
cases already under review by the courts. Authorizing the 
retroactive application by a court of a newly-legislated change 
of law can disrupt judicial economy and encourage litigants to 
delay court proceedings while they seek private relief from the 
Congress rather than pursue relief in the courts.
    In sum, the amendments to the ICWA proposed by Title III 
would seriously undermine longstanding principles of Federal 
Indian law and result in a significant erosion of tribal 
sovereignty. If enacted, fundamental determinations of tribal 
membership would be transferred to an ill-equipped State 
judiciary for a final, non-reviewable determination. Such a 
process conflicts with the Congress' longstanding commitments 
to tribal self-governance and tribal self-determination. In 
addition, the Committee is very troubled by several serious 
procedural due process and constitutional questions which are 
raised by these proposed amendments. For these reasons, the 
Committee voted to strike Title III in its entirety from H.R. 
3286 and report H.R. 3286, as amended, to the full Senate with 
the recommendation that it be passed without any amendments to 
the Indian Child Welfare Act of 1978.

                          Legislative History

    H.R. 3286 was introduced by Representative Molinari on 
April 23, 1996 in the House of Representatives and was referred 
to the Committee on Ways and Means, the Committee on Resources, 
and the Committee on Economic and Educational Opportunities. 
The bill was favorably reported by the Committee on Resources 
with an amendment on April 30, 1996. On April 30, 1996, the 
Committee on Economic and Educational Opportunities was 
discharged of the bill and on May 3, 1996, the Committee on 
Ways and Means favorably reported the bill with an amendment. 
H.R. 3286 was passed by the House of Representatives on May 10, 
    In the Senate, the bill was referred to the Committee on 
Finance on May 13, 1996. On May 23, 1996 pursuant to a 
unanimous consent agreement, Titles I, II and IV of H.R. 3286 
were referred to the Committee on Finance and Title III of H.R. 
3286 was referred to the Committee on Indian Affairs for a 
period of ten (10) days of session after the Committee on 
Finance has reported the bill. On June 12, 1996, the Committee 
on Finance favorably reported H.R. 3286, with amendments to 
Titles, I, II, and IV. On June 19, 1996, the Committee on 
Indian Affairs, by a vote of 14 for, and 1 against, favorably 
reported H.R. 3286 with an amendment.


    In an open business session on June 19, 1996, the Committee 
on Indian Affairs, by a vote of 14 for, and 1 against, ordered 
the bill reported with an amendment, with the recommendation 
that the Senate pass the bill as reported.

                      SECTION BY SECTION ANALYSIS

    The Committee on Indian Affairs struck all of the 
provisions in Title III of H.R. 3286.


    The cost estimate for Title III of H.R. 3286 as amended, as 
calculated by the Congressional Budget Office is set forth 

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 20, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared a cost estimate for Title III of H.R. 3286, the 
Adoption Promotion and Stability Act of 1996, as ordered 
reported by the Senate Committee on Indian Affairs on June 19, 
    The committee adopted an amendment that would strike Title 
III of H.R. 3286. Therefore CBO estimates that Title III of 
H.R. 3286, as ordered reported by the Committee on Indian 
Affairs, would have no federal budgetary effects.
    Since enactment would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply to this 
title of the bill. Title III of H.R. 3286, as ordered reported, 
contains no mandates as defined in Public Law 104-4 and would 
impose no direct costs on state, local or tribal governments, 
or the private sector.
    If you wish further details on this estimate, we will be 
pleased to provide them.
                                             James L. Blum,
                                   (For June E. O'Neill, Director).

                      regulatory impact statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. the Committee believes that striking 
Title III of H.R. 3286 will create no regulatory or paperwork 

                        executive communications

    The Committee received the following executive 
communications from the Honorable Bruce Babbitt, Secretary of 
the Interior, U.S. Department of the Interior, and Mr. Andrew 
Fois, Assistant Attorney General, U.S. Department of Justice 
regarding Title III or H.R. 3286:

                             The Secretary of the Interior,
                                         Washington, June 18, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: In a letter to the Speaker, the 
President has stated his strong support for H.R. 3286 and its 
purpose of encouraging the adoption of children. However, in 
our role as trustee for Indians and Indian tribal governments, 
we would have serious concerns if an amendment were offered to 
H.R. 3286 for the purpose of amending the Indian Child Welfare 
Act of 1978 (Public Law 95-608). These concerns are addressed 
    The United States has a government-to-government 
relationship with Indian tribal governments. Protection of 
their sovereign status, including preservation of tribal 
identity and the determination of Indian tribal membership, is 
fundamental to this relationship. The Congress, after ten years 
of study, passed the Indian Child Welfare Act (ICWA) of 1978 
(P.L. 95-608) as a means to remedy the many years of widespread 
separation of Indian children and families. The ICWA 
established a successful dual system that establishes exclusive 
tribal jurisdiction over Indian Child Welfare cases arising in 
Indian country, and presumes tribal jurisdiction in other cases 
involving Indian children, yet allows concurrent state 
jurisdiction in Indian child adoption and custody proceedings 
where good cause exists. This system, which authorizes tribal 
involvement and referral to tribal courts, has been successful 
in protecting the interests of Indian tribal governments, 
Indian children, and Indian families.
    The ICWA amendments proposed in Title III of H.R. 3286, as 
introduced, would effectively dismantle this carefully crafted 
system by allowing state courts, instead of tribal courts with 
their specialized expertise, to make final judgments on behalf 
of tribal members. Such decisions would adversely affect tribal 
sovereignty over tribal members as envisioned by the ICWA and 
successfully implemented for the past 18 years.
    We therefore urge the committee to disallow the 
reintroduction of Title III into this bill.
    The Office of Management and Budget has advised that there 
is no objection to the presentation of this report from the 
standpoint of the Administration's program.
                                                     Bruce Babbitt.

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, June 18, 1996.
Hon. John McCain,
Chairman, Senate Committee on Indian Affairs,
Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Justice Department on H.R. 3286, the ``Adoption Promotion and 
Stability Act of 1996.'' We strongly support H.R. 3286 without 
the inclusion of title III. We also recommend that title II be 
modified to addressed the concerns below.

Title II

    Section 201(a) of H.R. 3286 would allow any person denied 
the opportunity to be an adoptive or foster parent on the basis 
of race, color or national origin by a State, or any person 
aggrieved by a State's discrimination in making a placement 
decision in violation of the Act to sue the State in Federal 
court. To ensure that the immunity from suit granted States by 
the Eleventh Amendment does not prevent individuals from 
vindicating this right, we suggest that the bill include a 
provision clarifying that section 201 is enacted pursuant both 
to Congress' authority under section 5 of the Fourteenth 
Amendment and to its spending power under article I of the 
Constitution. Alternatively section 201 could be modified to 
expressly require a State to waive its Eleventh Amendment 
immunity from suits brought pursuant to H.R. 3286, as a 
condition of receiving Federal payments for foster care and 
adoption assistance.

Title III

            A. Detrimental impact on tribal sovereignty
    The proposed amendments interfere with tribal sovereignty 
and the right of tribal self-government. Among the attributes 
of Indian tribal sovereignty recognized by the Supreme Court, 
is the right to determine tribal membership. Santa Clara Pueblo 
v. Martinez, 436 U.S. 49 (1978). Section 302 of H.R. 3286 
provides that membership in a tribe is effective from the 
actual date of admission and that it shall not be given 
retroactive effect. For persons over 18 years of age, section 
302 requires written consent for tribal membership. Many tribes 
do not regard tribal enrollment as coterminous with membership 
and the Department of Interior, in its guidelines on Indian 
child custody proceedings, has recognized that ``[e]nrollment 
is the common evidentiary means of establishing Indian status, 
but is not the only means nor is it necessarily 
determinative.'' \1\ Through its membership restrictions, H.R. 
3286 may force some tribal governments to alter enrollment and 
membership practices in order to preserve the application of 
the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., to 
their members.
    \1\ Guidelines for State Courts; Indian Child Custody Proceedings, 
44 Fed. Reg. 67,586 (Nov. 6, 1979).
            B. Detrimental impact on tribal court jurisdiction
    H.R. 3286 would amend the ICWA to require a factural 
determination of whether an Indian parent maintains the 
requisite ``significant social, cultural, or political 
affiliation'' with a tribe to warrant the application of the 
Act. Title III fails to indicate which courts would have 
jurisdiction to conduct a factual determination into tribal 
affiliation. To the extent that State courts would make these 
determinations, H.R. 3286 would undercut tribal court 
jurisdiction, and essential aspect of tribal sovereignty. See 
Iowa Mutual Ins. Co. v. La Plante, 480 U.S. 9, 18 (1987). 
Reducing tribal court jurisdiction over Indian Child Welfare 
Act proceedings would conflict directly with the objectives of 
the ICWA and with prevailing law and policy regarding tribal 
    The President, in his Memorandum on Government-to-
Government Relations with Native American Tribal Governments 
(April 29, 1994), directed that tribal sovereignty be respected 
and tribal governments consulted to the greatest extent 
possible. Congress has found that ``tribal justice systems are 
an essential part of tribal governments and serve as important 
forums for ensuring public health and safety and the political 
integrity of tribal governments, ``See Indian Tribal Justice 
Act, 25 U.S.C. 3601(5). Retaining ICWA's regime of presumptive 
tribal jurisdiction crucial to maintaining harmonious relations 
with tribal governments, to ensuring that the tribes retain 
essential features of sovereignty and to guarding against the 
dangers that Congress identified when it enacted ICWA in 1978.
    Thank you for the opportunity to comment on this matter. If 
we may be of additional assistance, please do not hesitate to 
call upon us. The Office of Management and Budget has advised 
that there is no objection to the submission of this letter 
from the standpoint of the Administration's program.
                                            Ann M. Harkiss,
                     (For Andrew Fois, Assistant Attorney General).

                        changes in existing law

    The Committee's action to strike Title III of H.R. 3286 
will result in no changes in existing law.