In 1978 Congress enacted the Indian Child Welfare Act ii (Act or ICWA), in response to a national crisis in which an alarmingly high percentage of Indian families were being broken up due to the often misguided removal of Indian children from their families and tribal communities. Prior to the Act's passage, Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting "the wholesale removal of Indian children from their homes ... the most tragic aspect of Indian life today." iii Congress also heard testimony indicating that, by conservative estimates, one out of five Indian children has lived in foster or adoptive home at some time. iv It was found in States with large Indian populations an incredible 25 to 35 percent of Indians were in out of home placement or adoptive homes at one time in their lives.v
In Minnesota for example between 1972 and 1974, one-quarter of Indian children under one year of age were adopted. vi In Minnesota Indian children were placed in foster care or adoptive homes at a per-capita rate of five times that of non-Indians, and 97.5% of Indian children placed for adoption were placed into non-Indian families. The removal rates for Indian children in other states were just as alarming. In South Dakota Indian children were disproportionally represented in foster care at a rate of sixteen times that of non-Indians. vii In Washington Indian children were being adopted at a rate of nineteen times that of non-Indians. viii
The disproportionate rate at which Indian families were being broken up has had severe consequences to Indian children, parents, and tribal communities. Dr. Joseph Westermeyer, a University of Minnesota social psychiatrist, testified to Congress about his research, which indicated that Indian adolescents who are raised in non-Indian homes typically have difficulty coping in white society, despite the fact they had been raised in a white environment. ix A 1975 report prepared for the American Academy of Child Psychiatry states, "native American children placed in off-reservation non-Indian homes are at risk in their later development. Often enough they are cared for by devoted and well-intentioned foster or adoptive parents. Nonetheless, particularly in adolescence, they are subject to ethnic confusion and a pervasive sense of abandonment." x
Puyallup Tribal Chair Ramona Bennet succinctly stated the parents' perspective: "If you lose your children, you are dead; you are never going to be rehabilitated, you are never going to get well." xi For the tribes, Congress heard the testimony of Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indian, who stated:
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. xii
Chief Isaac also summarized the principal reason for the high rates of removal of Indian children:
One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child. xiii
One of the particular points of concern to Congress was the failure of social workers to understand the role of the Indian extended family. The House Report on ICWA thus states:
An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus grounds for terminating parental rights. xiv
In addition to the alarming removal rates of Indian children is the Federal Governments well documented involvement in the destruction of Indian families through Federal policies. For example in 1971, 17% of Indian children where removed from families to attend Bureau of Indian Affairs (BIA) boarding schools. xv The Indian children were often times isolated from families and punished for speaking their own language and practicing their own religion. Based upon this evidence, in passing the ICWA Congress found:
...that the States, exercising their recognized jurisdiction over Indian child-custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. xvi
The Indian Child Welfare Act addresses the crisis in Indian placement in two ways. First, it provides that no Indian child may be removed from the home unless qualified Indian expert testimony indicates that the child is in danger of experiencing physical or emotional harm. xvii This requirement, if followed, will ensure that removal of an Indian child from the home is based upon objective indicia of harm to the child, rather that subjectively applied cultural or social standards. Secondly, where Indian expert testimony does indicate that likelihood that continued custody in the home will result in harm to the child, the ICWA generally requires that the child be removed from the home, but placed, in order of preference, within the Indian extended family, within the family of the child's tribal affiliation, or within another Indian family. xviii Placement of Indian children in Indian homes was Congress' way of ensuring that when state court and child-protection agencies place Indian children outside of the home, they do not sever the children from their only means of receiving their cultural heritage - the Indian family. xix
Congress found as the purpose of the Act:
The congress hereby declares that it is the policy of this Nation to protect the best interest 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 programs.
Congress concluded as the legislative history shows that proper implementation of the Act itself would serve the "best interests" of Indian children.
i Parts of the following History were taken from the Indian Child Welfare Law Center Case for Support (6/28/93) prepared by Mark Fiddler.
ii 25 U.S.C. § 1901 et seq. (1978).
ii Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93 Cong., 2d Sess., at 3 (1974)(statement of William Byler)(herinafter 1974 Hearings).
iv American Indian Policy Review Commission, Report on Federal, State, and Tribal Jurisdiction, at 19 (1976) (hearinafter the 1976 Report).
v The House Report, H.R. Rep. No. 1386, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530 (hereinafter House Report) at page 9.
vi See House Report at 9.
ix 1974 Hearings, at 46.
x Indian Child Welfare Act of 1977 Hearing on S.1214 before the Senate Select Committee on Indian Affairs, 95 Cong., 1st Sess. (1977), at 114 (hereinafter the 1977 Hearings)(statement of Drs. Carl Mindell and Alan Gurwitt, American Academy of Psychiatry).
xi Id. at 164.
xii Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978), at 193 (hereinafter 1978 Hearings).
xiii Id, at 191-192.
xiv House Report at 10.
xv House Report at 9.
xvi 25 U.S.C. § 1901.
xvii 25 U.S.C. § 1912(e),(f).
xviii 25 U.S.C. § 1915.
xix See House Report at 19 (where the House stated that compliance with ICWA is "in the best interest of an Indian child").
Why are Tribes and It's Members Treated Differently from Other Groups?
Understanding why Tribes can be treated differently than other groups is to understand the history of the Federal Government's relationship to Tribes, and Tribes status as separate sovereigns from either Federal or State Government. Indian Tribes are sovereign entities whose existence pre-dates the United States Constitution. Cherokee Nation v. Georgia, 303 U.S. (5 Pet.) (1831). Tribes retain inherent sovereign powers to make their own laws and be ruled by them. See Williams v. Lee, 358 U.S. 217 (1959); Fisher v. District Court, 424 U.S. 382 (1976). Tribes sovereign powers are inherent powers retained from time immemorial not delegated powers from the Federal government. Worchester v. Georgia, 31 U.S. (Pet.) 515, 559 (1832); See also, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Iron Crow v. Oglala Sioux Tribe, 231 F2d 89 (8th Cir. 1956). Prior to European contact, Indian Tribes had thriving cultures. Within each Tribe existed highly developed traditions governing child rearing practices and child protection systems including adoptions and extended family care for children. Tribes social systems existed and functioned very well. Every member of the family and extended family had a role in child rearing. If a parent was unable to care for a child another family member was designated by tradition to assume the parental role. Grandparents played a big role in rearing children in traditional culture. Tribal social system and culture became under attack with European contact especially under the past 200 years of Federal policies aimed at breaking up the traditional Indian family. The history of Federal policies and the Federal governmental dealings with Tribes is the foundation of the government to government relationship now in existence and the special obligations the Federal government holds to Tribes.
The Supreme Court recognized Tribes as "domestic dependent nations" with a unique relationship existing between the Tribes and the Federal Government. Cherokee Nation, at 17. The relationship of the Federal government to Tribes is often described as a trust relationship or as the obligations a guardian holds to its ward. Cherokee Nation, at 17. See also, U.S. v. Kagama, 118 U.S. 375 (1886); U.S. v. Sandoval, 231 U.S. 28 (1913). The obligations under the trust relationship have evolved over the past 200 years through treaties (usually in exchange for land or precious minerals), Executive Orders, and Federal laws and policies.
Because of the unique trust relationship, Congress can pass laws treating Tribes differently than other groups and not be in violation of the Due Process Clause of the 5th Amendment or traditional equal protection notions. Morton v. Mancari, 417 U.S. 535 (1974). Federal legislation with respect to Indian tribes is not based upon impermissible racial classifications, but derives from the special status of Indians as members of quasi-sovereign tribal entities. United States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974). See also, Washington v. Confederatd Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979); Fischer v. District Court, 424 U.S. 382 (1976); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73(1976). "Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, sinlge[s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed inviduous racial ddiscrimiantion, an entire Title of the United States Code ( 25 U.S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would b ejeapardized. See Simmons v. Eagle Seelatsee, 244 F. Sup. 808, 814 n. 13 (ED Wash. 1965) , aff'd, 384 U.S. 209 (1966)." Id. The preference is not a racial distinction. "The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as Indians. The distinction is political rather than racial in nature." Id, at f.n. 24. "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Mancari, 417 U.S. 535 (1974). Therefore, based upon these well established principals of Federal Indian law, constitutional challenges to Indian Child Welfare Act based upon disparate treatment of parties in State Courts have not prevailed.xx
The United States Constitution gives the Federal Government and not the separate states exclusive authority to regulate the affairs of Indian Tribes. U.S. Const., Art. I, Sec. 8, Cl. 3. Congress has plenary authority to pass laws regulating Indian Tribes. U.S. Wheeler, 435 U.S. 313 (1978); Lonewolf v. Hitchcock, 187 U.S. 553 (1903). States are generally pre-empted from exercising authority over Indian Tribes. Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832); Williams v. Lee, 358 U.S. 217 (1959).
xx In re Eleanor Armell, 550 N.E.2d 1060 (Ill.App.Ct. 1990); Matter of Miller, 451 N.W.2d 576 (Mich.App. 1990: In re Appeal of Pima County Juvenile Action, S-903, 635 P.2d 187 (Ariz. Ct. Appeals 1981), cert. denied, 455 U.S. 1007 (1982); Matter of Two Babies, (Okla. Dist. Ct. # JR 79-1121 1980); In re D.L.L. & C.L.L., 291 N.W.2d 278 (S.D. 1980).
Government to Government Relationship - the Bureau of Indian Affairs
The Bureau of Indian Affairs (hereinafter BIA) is the main Federal Governmental agency charged with carrying out the trust obligations of the Federal Government. The BIA is under the Department of the Interior. The BIA has many programs to serve Tribes and carry out the trust responsibilites. The mission of the BIA as presented on it's web page is as follows:
The Bureau of Indian Affairs' mission is to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives. We will accomplish this through the delivery of quality services, maintaining government-to-government relationships within the spirit of Indian self-determination.
The BIA maintains a web page at http://www.doi.gov/bia. A brief history of the establishment of the BIA can be found at http://www.doi.gov/bia/shorthist.html. The basis for the government to government relationship between the United States and Tribal Nations is described on the BIA web site as follows.
This mission of the Bureau of Indian Affairs is to act as the principle agent of the United States in carrying out the government-to-government relationship that exists between the United States and the federally-recognized American Indian tribes; and, to act as principle agent of the United States in carrying out the responsibilities the United States as a trustee for property it holds for federally-recognized tribes and individual American Indian.
The twin cornerstones of the mission of the Bureau of Indian Affairs-the government-to-government relationship with American Indian tribe and Alaska Natives, and the responsibilities-are the results of more than two centuries of interaction between the United Sates and tribal groups. Virtually everything the Bureau does stems from these two concepts and both are inextricable bound to the past. A historical perspective, then, is necessary in understanding present-day Indian affairs and the role performed by the Bureau of Indian Affairs.
The Spanish, French, Dutch, and British were the first Europeans to settle this continent, and they each brought with them their own ideas on how to deal with the inhabitants of the new lands. These early concepts eventually became the basis of the United States Indian policy: 1.Tribes were to be thought of as separate sovereign nations to be dealt with on a government-to-government basis.
2.As separate nations, the internal affairs of tribes were the responsibility of the tribal entity and were not to be tampered with.
3. Relations with tribes were considered to be between two nations and were to be handled by the central government.
Acceptance of these concepts was necessary before treaties could be made with Indian tribes. Treaties can only be made between sovereigns; they can only be made by the central government, and they affirm, rather than deny, mutual right of self-government.
In 1778, the first treaty was signed between an Indian tribe, the Delaware, and the United States government. In signing this treaty, the United States was affirming the English and European tradition of dealing with tribes and political entities. Early U.S. policy was consistent with European practice of recognizing tribes as government with full internal sovereignty. By 1832, however, tribal sovereignty had been limited after the tribes had agreed to regard themselves as under the protection of the United States. Also, tribes consented to extinguish their external sovereignty and to recognize legislative powers of Congress over them through treaties. This agreement did not do away with tribal sovereignty altogether. A tribes' sovereign powers can only be removed by an act of Congress.
The government-to-government aspect of federal-tribal relations has received some serious assaults through the years. Recently, however, tribes have adopted measures to strengthen their tribal governments and take control of their own affairs. The Bureau is supportive of the tribes in this endeavor. Also, capabilities of the bureau of Indian Affairs are being expanded to improve and strengthen the technical support provided the tribal governments and tribal court systems. Special initiatives are directed at formal training, specialized guidance, improvement of tribal governing document codes, and other regulations that enhance a tribes capacity to govern itself.
UNITED STATES CODE TITLE 25- INDIANS CHAPTER 21 -INDIAN CHILD WELFARE
§ 1901. Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds - 1.that clause 3, section 8, article I of the United States Constitution provides that ''The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes (FOOTNOTE 1) '' and, through this and other constitutional authority, Congress has plenary power over Indian affairs; (FOOTNOTE 1) So in original. Probably should be capitalized.
2.that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
3.that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
4.that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
5.that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
§ 1902. Congressional declaration of policy
The Congress hereby declares that it is the policy of this Nation 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.
§ 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 removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or 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
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.
v.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.
i.''extended family member'' shall be as 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;
ii.''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 1606 of title 43;
iii.''Indian child'' means any unmarried person who is under age eighteen and is either
a.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;
i.''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;
c.''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;
d.''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;
e.''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;
f.''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. It does not include the unwed father where paternity has not been acknowledged or established;
g.''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;
h.''Secretary'' means the Secretary of the Interior; and
i.''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.
§ 1911. Indian tribe jurisdiction over Indian child custody proceedings
a.Exclusive jurisdiction 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.
b.Transfer of proceedings; declination by tribal court In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, 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.
c.State court proceedings; intervention In any State court proceeding for the foster care placement of, or termination of parental rights to, 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.
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 of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.
§ 1912. Pending court proceedings
a.Notice; time for commencement of proceedings; additional time for preparation In any involuntary proceeding in a State court, where the court knows or has reason to know that 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 the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding 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.
b.Appointment of counsel In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.
c.Examination of reports or other documents Each party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.
d.Remedial services and rehabilitative programs; preventive measures Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
e.Foster care placement orders; evidence; determination of damage to child No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
f.Parental rights termination orders; evidence; determination of damage to child No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
§ 1913. Parental rights; voluntary termination"
a.Consent; record; certification matters; invalid consents Where any parent or Indian custodian voluntarily consents to a 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 explained in detail and were fully understood by the parent or Indian custodian. 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, or within ten days after, birth of the Indian child shall not be valid.
b.Foster care placement; withdrawal of consent 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.
c.Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody 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.
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.
§ 1914. Petition to court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
§ 1915. Placement of Indian children
(a) Adoptive placements; preferences
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(1) a member of the child's extended family;
(2) other members of the Indian child's tribe; or
(3) other Indian families.
(b) Foster care or preadoptive placements; criteria; preferences
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with - (i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
(c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of preferences
In the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.
(d) Social and cultural standards applicable
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
(e) Record of placement; availability
A record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the Secretary or the Indian child's tribe.
§ 1916. Return of custody
(a) Petition; best interests of child
Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.
(b) Removal from foster care home; placement procedure
Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the provisions of this chapter, except in the case where an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.
§ 1917. Tribal affiliation information and other information for protection of rights from tribal relationship;application of subject of adoptive placement; disclosure by court
Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual's biological parents and provide such other information as may be necessary to protect any rights flowing from the individual's tribal relationship.
§ 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: (i) 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;
(ii) the size of the reservation or former reservation area which will be affected by retrocession and reassumption of jurisdiction by the tribe;
(iii) the population base of the tribe, or distribution of the population in homogeneous communities or geographic areas; and
(iv) 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 action or proceeding over which a court has already assumed jurisdiction, except as may be provided pursuant to any agreement under section 1919 of this title.
§ 1919. Agreements between States and Indian tribes
(a) Subject coverage
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.
(b) Revocation; notice; actions or proceedings unaffected
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.
§ 1920. Improper removal of child from custody; declination of jurisdiction; forthwith return of child: danger exception
Where any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
§ 1921. Higher State or Federal standard applicable to protect rights of parent or Indian custodian of Indian child
In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.
§ 1922. Emergency removal or placement of child; termination; appropriate action
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
§ 1923. Effective date
None of the provisions of this subchapter, except sections 1911(a), 1918, and 1919 of this title, shall affect a proceeding under State law for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement which was initiated or completed prior to one hundred and eighty days after November 8, 1978, but shall apply to any subsequent proceeding in the same matter or subsequent proceedings affecting the custody or placement of the same child.
§ 1931. Grants for on or near reservation programs and child welfare codes
(a) Statement of purpose; scope of programs
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 insure that the permanent removal of an Indian child from the custody of his parent or Indian custodian shall be a last resort. Such child and family service programs may include, but are not limited to -
(1) a system for licensing or otherwise regulating Indian foster and adoptive homes;
(2) the operation and maintenance of facilities for the counseling and treatment of Indian families and for the temporary custody of Indian children;
(3) family assistance, including homemaker and home counselors, day care, afterschool care,and employment, recreational activities, and respite care;
(4) home improvement programs;
(5) the employment of professional and other trained personnel to assist the tribal court in the disposition of domestic relations and child welfare matters;
(6) education and training of Indians, including tribal court judges and staff, in skills relating to child and family assistance and service programs;
(7) 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
(8) guidance, legal representation, and advice to Indian families involved in tribal, State, or Federal child custody proceedings.
(b) Non-Federal matching funds for related Social Security or other Federal financial assistance programs; assistance for such programs unaffected; State licensing or approval for qualification for assistance under federally assisted program 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 (42 U.S.C. 620 et seq., 1397 et seq.) or under any other Federal financial assistance programs which contribute to the purpose for which such funds are authorized to be appropriated 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 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.
§ 1932. Grants for off-reservation programs for additional services
The Secretary is also authorized to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs which may include, but are not limited to -
(1) a system for regulating, maintaining, and supporting Indian foster and adoptive homes, including a subsidy program under which Indian adoptive children may be provided support comparable to that for which they would be eligible as Indian foster children, taking into account the appropriate State standards of support for maintenance and medical needs;
(2) the operation and maintenance of facilities and services for counseling and treatment of Indian families and Indian foster and adoptive children;
(3) family assistance, including homemaker and home counselors, day care, afterschool care, and employment, recreational activities, and respite care; and
(4) guidance, legal representation, and advice to Indian families involved in child custody proceedings.
§ 1933. Funds for on and off reservation programs
(a) Appropriated funds for similar programs of Department of Health and Human Services; appropriation in advance for payments In the establishment, operation, and funding of Indian child and family service programs, both on and off reservation, the Secretary may enter into agreements with the Secretary of Health and Human Services, and the latter Secretary is hereby authorized for such purposes to use funds appropriated for similar programs of the Department of Health and Human Services: Provided, That authority to make payments pursuant to such agreements shall be effective only to the extent and in such amounts as may be provided in advance by appropriation Acts.
(b) Appropriation authorization under section 13 of this title
Funds for the purposes of this chapter may be appropriated pursuant to the provisions of section 13 of this title.
§ 1934. ''Indian'' defined for certain purposes
For the purposes of sections 1932 and 1933 of this title, the term ''Indian'' shall include persons defined in section 1603(c) of this title.
§ 1951. Information availability to and disclosure by Secretary
(a) Copy of final decree or order; other information; anonymity affidavit; exemption from Freedom of Information Act Any State court entering a final decree or order in any Indian child adoptive placement after November 8, 1978, shall provide the Secretary with a copy of such decree or order together with such other information as may be necessary to show -
(1) the name and tribal affiliation of the child;
(2) the names and addresses of the biological parents;
(3) the names and addresses of the adoptive parents; and
(4) the identity of any agency having files or information relating to such adoptive placement.
Where the court records contain an affidavit of the biological parent or parents that their identity remain confidential, the court shall include such affidavit with the other information. The Secretary shall insure that the confidentiality of such information is maintained and such information shall not be subject to the Freedom of Information Act (5 U.S.C. 552), as amended.
(b) Disclosure of information for enrollment of Indian child in tribe or for determination of member rights or benefits; certification of entitlement to enrollment
Upon the request of the adopted Indian child over the age of eighteen, the adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary shall disclose such information as may be necessary for the enrollment of an Indian child in the tribe in which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership. Where the documents relating to such child contain an affidavit from the biological parent or parents requesting anonymity, the Secretary shall certify to the Indian child's tribe, where the information warrants, that the child's parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such tribe.
§ 1952. Rules and regulations
Within one hundred and eighty days after November 8, 1978, the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions of this chapter.
§ 1961. Locally convenient day schools
(a) Sense of Congress
It is the sense of Congress that the absence of locally convenient day schools may contribute to the breakup of Indian families.
(b) Report to Congress; contents, etc.
The Secretary is authorized and directed to prepare, in consultation with appropriate agencies in the Department of Health and Human Services, a report on the feasibility of providing Indian children with schools located near their homes, and to submit such report to the Select Committee on Indian Affairs of the United States Senate and the Committee on Interior and Insular Affairs of the United States House of Representatives within two years from November 8, 1978. In developing this report the Secretary shall give particular consideration to the provision of educational facilities for children in the elementary grades.
§ 1962. Copies to the States
Within sixty days after November 8, 1978, the Secretary shall send to the Governor, chief justice of the highest court of appeal, and the attorney general of each State a copy of this chapter, together with committee reports and an explanation of the provisions of this chapter.
§ 1963. Severability
If any provision of this chapter or the applicability thereof is held invalid, the remaining provisions of this chapter shall not be affected thereby.