NCAI will be sponsoring a full day meeting on June 2 to develop alternative ICWA amendments to the ones contained in H.R. 3286 at their Mid-Year Conference with committee and delegate action to follow on June 3-5. The Senate Indian Affairs Committee hopes to introduce an alternative ICWA bill, such as the one developed at NCAI, by June 10th. Following the introduction of an alternative ICWA bill the Indian Committee has scheduled a hearing on June 26th to review this alternative and hear tribal perspectives on the amendments in H.R. 3286.

1. Attend the NCAI Mid-Year Conference in Tulsa, OK, especially the ICWA amendments meeting on June 2nd. Details on this meeting can be obtained by calling NCAI at (202) 466-7767.
   
   
2. Develop a fax letter, no more than 3 pages. Attached is a sample letter that you can use. Personal stories that show how the ICWA has worked well in off-reservation ICWA cases or stories where the ICWA was not applied which resulted in terrible outcomes for Indian children can work well in your fax letter. Arguments based on tribal sovereignty should explain how a tribe's sovereignty helps ensure that the best interests of the child will be met.
   
   
3. Fax a copy of your letter to the Senators that represent your tribe and as many other Senators as possible. Senators most likely to be ignorant on this issue and vote to weaken the ICWA are those that have the least contact with Indian Country. It is also important to fax a copy of your letter to the following leaders in the Senate since they will play a large role in how their party votes overall.

The Honorable (Senator's name)
(office building and room #)
Washington, D.C. 20510

Dear (Senator's name):

I am writing to you today because of my deep concern for the safety and well-being of the (# of tribal member children on and off the reservation) Indian children and their families that our government is responsible for. Amendments to the Indian Child Welfare Act contained in Title III of H.R. 3286 - the Adoption Promotion and Stability Act of 1996 - threatens to alienate many of our most vulnerable children from their loving grandparents, aunts and uncles. The vast majority of these Indian children have extended family members available to adopt them. Unfortunately, if Title III of H.R. 3286 is enacted into law, these family members will largely be considered irrelevant and it will become a free market "first come, first served" arrangement for the adoption of Indian children.

We respectfully request that you consider several facts before you cast any vote that would support these Indian Child Welfare Act amendments. They are as follows:

Contrary to the sponsor's claims this legislation will extend well beyond just voluntary adoption proceedings. The legislative language will also deny Indian children the important protections they need in involuntary proceedings, both foster care and adoptions.

The amendments do much more than just "clarify" or "make minor changes" in the Indian Child Welfare Act as the sponsors have claimed. Many full-blooded Indian children could end up in homes with strangers while their own extended family members who are qualified to care for them are ignored as potential placements.

Sponsors of this legislation have greatly misrepresented the amount of control that tribes have over placements of Indian children under the ICWA. If the jurisdictional and intervention procedures for consent to adoption in the ICWA are followed no adoption may be disturbed once it finalized unless there is fraud or duress in the initial consent. Even when there is fraud or duress, a challenge can be brought only two years after an adoption decree is final. Furthermore, a state court has the discretion to place an Indian child outside the placement preferences in the ICWA if it finds good cause to the contrary. While an Indian tribe may seek transfer of jurisdiction of an off-reservation case, either birth parent may object to the transfer which generally has the effect of preventing such a transfer. Moreover, even where a parent does not object, a state court may deny transfer of jurisdiction. Finally, tribal courts who have jurisdiction routinely order placements for Indian children with non-Indian families. The ICWA only sets out preferences, not mandates, for the placement of Indian children with the primary emphasis being on the family of the child, regardless of whether it is Indian or non-Indian. Thus, where the ICWA is complied with initially, there is little if any threat that an adoption will be overturned.

The amendments address none of the real problems that give rise to lengthy adoption disputes. Removing tribal government and tribal court jurisdiction over child custody proceedings will not improve placement outcomes for Indian children, and in fact will likely produce worse outcomes. The blaming of tribal governments and tribal courts ignores efforts by individuals who circumvent the ICWA law in state courts and cause most of the pain and suffering that both adoptive and natural families experience.

Unlike the situation that has been described for other minority children, there are plenty of extended family members who want to provide qualified and loving homes for these Indian children. While the sponsors of this legislation state that they are just trying to provide loving homes for Indian children, they have completely ignored the fact that wonderful, qualified Indian families, many of whom are relatives of these children, are being overlooked as foster care and adoptive placements.

The sponsors claim that there are "hundreds" of cases where Indian children are "snatched" from their non-Indian adoptive homes, yet experts in the field of Indian adoption and foster care find that less than one-tenth of one percent or only 40 Indian adoption cases in 18 years since the passage of the ICWA have ended up in state supreme courts. State courts deal with much larger numbers of disrupted adoption cases of non-Indian children, yet they are not being singled out for this kind of drastic change. How many other state or federal child welfare policies can claim this kind of success in placing children in foster care or adoptive homes?

The involvement of tribes in voluntary adoption proceedings ensures that young, vulnerable Indian parents have balanced information available to them to help them make an informed decision regarding the potential adoption of their children. When Indian parents only receive information from adoption attorneys or agencies opportunities for placing the children with their extended family are rarely discussed or encouraged. Adoption brokers have a direct financial incentive to not encourage the involvement of extended family members or tribes in decisions affecting their children.

The sponsors have falsely stated that the Indian Child Welfare Act was never intended to provide protections to off-reservation Indian children or families, when in fact this was the primary group that Congress identified as most needing protections.

The bill has many serious flaws that will cause an explosion of new litigation on virtually every section of the bill. This will only result in delaying efforts to find good homes for Indian children awaiting adoption or foster care - the very problem that Congresswoman Pryce says she is trying to resolve. What is social, cultural, or political affiliation? What evidence proves or disapproves such affiliation? What does it mean to be affiliated as of the time of the proceeding? Does the court consider the affiliation over the last 10 years or just within the last month? What if a child maintains such relationship through a grandparent or other relative, but the parent does not? What if the child's parent(s) are deceased? What does it mean that a determination of non-affiliation is final? Does it mean that a judges determination cannot be appealed to a state appellate court or that a state appellate court decision which violates the ICWA cannot be reviewed in a federal court? Interestingly, determinations that uphold the application of the ICWA will be eligible to be appealed or reversed. What if a natural parent claims a lack of affiliation, the judge accepts this representation and two weeks later an Indian tribe presents overwhelming evidence that the parent has substantial contacts with the tribe? Every one of these questions and many more will be litigated repeatedly.

The bill replaces a bright line political test - membership in an Indian tribe as the trigger for the coverage of the ICWA - with a multi-faceted test that transforms the classification into more of a racial identification test. This provision is likely unconstitutional since the legitimacy of Indian-specific legislation rests upon the fact that such legislation is based upon a political classification, and not a racial classification.

The arbitrary nature of Section One could result in Indian grandparents, uncles, aunts, nieces, nephews, and siblings being considered irrelevant in the lives of Indian children. In the case of an Indian child who had very meaningful, significant relationships with their tribe and extended Indian family over a period of years, but maybe not within the last 3-6 months, the court could determine that this was sufficient evidence to exclude the child's extended family and tribe from being any part of that placement decision. This could occur even when the extended Indian family wanted to adopt the child and had the permission of the natural parents.

This legislation does not reflect the realities of how tribal membership mechanisms work and would likely exclude coverage of vast numbers of bona fide Indian children from coverage by the Indian Child Welfare Act. Many Indian children are not formally enrolled, but are clearly members of a tribe and could be enrolled. In addition, assertions by the sponsors that tribes are trying to make members of everyone are simply absurd. First of all tribes reserve the right to determine their own memberships as sovereign governments. State agencies and courts are not equipped to make these kind of membership determinations and could easily make mistakes that would deny bona fide Indian children and their families from being covered by the ICWA in both foster care and adoption proceedings. Secondly, tribes have every incentive to not be enrolling children who are not legitimately connected with the tribe since ultimately these children will be eligible for benefits that the tribe provides to its members - benefits which are generally limited in nature.

Section 2 would also impact Indian children and families resident or domiciled on the reservation. Typically, child custody proceedings involving these families would be under the exclusive jurisdiction of the tribal court. However, in those circumstances where a state court misinterprets the parent or child's membership status or where the parent or child have not been formally enrolled, but are clearly eligible to be enrolled, there is nothing to stop states from coming on to the reservation and unnecessarily removing Indian children from their homes based on state, not tribal standards. There would be no requirement that an extended family or tribal placement for the child be sought. Tribal court authority over the voluntary and involuntary placement of such children would be lost, essentially taking us back to the types of rampant abuse which gave rise to the Indian Child Welfare Act.

As you can see, there are many reasons to not support these controversial amendments to the Indian Child Welfare Act, not the least of which is that they are counter to the child's best interests. The Senate Indian Affairs has pledged to take a serious look at the issues being raised regarding the Indian Child Welfare Act and develop a legislative solution to these concerns. We would respectfully request that you allow them this chance before putting your support behind the ICWA amendments in Title III of H.R. 3286. If you have any questions please do not hesitate to contact (name of tribal contact person). Your serious consideration of this request will be greatly appreciated.

Sincerely,

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