http://www.alt.net/~waltj/shea/ncai.html
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This morning, the Senate Indian Affairs Committee held a hearing on
amendments to the Indian Child Welfare Act(ICWA). In addition to
Chairman McCain and Vice Chairman Inouye, other Committee members who
attended the hearing were Senators Campbell, Thomas, Dorgan, and
Gorton.
In his opening remarks, Chairman McCain stated that while this issue
of Indian child welfare stirs the deepest of emotions, he hoped for
constructive dialogue from witensses about ways to improce ICWA
without stepping on tribal sovereignity. Noting that last week the
Committee had recommended the deleteion of Title III, the ICWA
provisions, from the adoption tax credit bill (H.R. 3286), he stated
that some concerns identified by proponents of Title III are
legitimate, and that certainty, speed, and stability should be
achieved in adoptive placements that involve the participation of
tribes. Chairman McCain complimented the National Congress of American
Indians and non-Indian adoption attorneys for their efforts in working
together to develop alternative amendments to Title III, and indicated
that the Committee will move forward to introduce the amendments
proposed at the National Cogress of American Indians' mid-year
conference in Tulsa, OK earlier this month, without substantial
changes. Chairman McCain indicated that this bill would be introduced
as a stand-alone measure, and might also be offered as an amendment to
Title III of H.R 3286, whichever method would be more expeditious in
getting the ICWA alternative amendments enacted.
Seantor Campbell in his opening statements, spoke of the many aspects
of tribal culture that are not understood by state courts, which lead
to the failure of state courts to understand the ICWA. He noted that,
because he and his Northern Cheyenne father lived much of his early
life away from the reservation, under the language of Title III he and
his father would have been considered not to have maintained
significant affiliation with his tribe, and would therefore have not
been considered Indian for the putposes of ICWA.
The first panel of witnesses was made up of members of Congress.
Senator Glenn (D-OH) while commending the "Tulsa amendments" as a
significant step in resolving certain issues, spoke of his concern
about what he called the "retroactive application" of ICWA in child
custody proceedings when a tribe intervenes after a voluntary legal
agreement has been entered into. He stressed that in his big interest
to amend ICWA, he does not want to weaken ICWA or address tribes'
ability to determine membership.
Representative Solomon (R-NY) testified to the Committee that he is a
strong supporter of adoption, being adopted himself, and strongly
supports H.R. 3286. While stating that the Tulsa amendments are a
"strong step in the right direction", he said that they fail to limit
the period of time in which a tribe can intervene and fail to address
retroactive registration of a child as an Indian child after the
termination of parental rights. Rep. Solomon recommended that these
issues be addressed in the House-Senate conference to H.R 3286. If
compromise langauge can be agreed to among the various parties, Rep.
Solomon offered his efforts as Chairman of the House Rule Committee in
getting the legislation through Congress in the remaining 27
legislative days of the 104th Congress.
Rep. Geren (R-TX) echoed previous witnesses on the issue of
"retroactivity". He stated further that in cases where parents have
chosen to decrease or end their ties to their "ancestral nation", and
a child has only "remote" Indian ancestry and no ties to a tribal
community, no party should be able to interrupt adoption proceedings,
including a sovereign nation like a tribe. Rep. Geren told the
Committee that the Untied States was founded on the premise that no
citizen is claimed by their ancestral nation.
Chairman McCain took strong exception to Rep. Geren's testimony,
stating that to lump German, Navajo, British and South African
heritages all together as Rep. Geren had done, revealed a fundamental
misunderstanding about the federal-tribal relationship. Senator McCain
stressed a tribe's right to participate in, but not block a placement.
Vice Chairman Inouye drew the analogy of wanting to adopt a child in
France or China, and how he would have to do so according to the laws
of that nation, even though his lifestyle might be a favorable one,
and even if the birth parents approved of his adoption of their child.
Senator Campbell added to this discussion a description of traditional
life ways and extended family in Indian societies, which are generally
misunderstood under non-Indian ways of thinking. He remarked that the
dominant society often seeks to apply laws that do not fit Indian
culture.
House Resources Committee Chairman Young and Representative
Faleomavaega also spoke of the unique federal relationship with tribal
governments, and expressed support for the alternative amendments
developed in Tulsa. Rep. Young told the Committee that he did not
approve of what happened in the House regarding passage of Title III,
and noted that Congress often shirks its trust responsibility to
Indian tribes.
Congresswoman Pryce, who authored the provisions in Title III, also
testified. She reiterated the comments of Rep. Geren about cases in
which a parent maintains no affiliation with his/her tribe, and in
which, she said, the child will not be raised within tribal culture.
She also stated that the ICWA should not cause other cultural
heritages - such as European-American or African-American cultures -
to be ignored. She concluded by stating her hopes that a consensus on
ICWA amendments could be developed.
At the conclusion of the testimony from members of Congress, Vice
Chairman Inouye delivered his opening statement, which presented an
overview of federal policies from the early days of the United States
that encouraged the removal of Indian children from their families and
communities.
The second panel of witnesses was made up of the Associate Deputy
Attorney General for the Department of Justice, Seth Waxman, and
Assistant Secretary for Indian Affairs Ada Deer. Mr. Waxman stated
that the Department of Justice supported the Committee's effort to
delete Title III from 3286. he noted that the proponents of Title III
assume that the outcome of an adoption proceeding under ICWA will be
the removal of an Indian child from non-Indian adoptive parents. This,
he noted, was not the outcome in the Holyfiled case, decided by the
U.S Supreme Court in 1989. Mr. Waxman expressed general support for
the Tulsa amendments.
Assistant Secreatary Deer noted that her tribe, the Menominee Tribe of
Wisconsin, has intervened in more than 900 ICWA cases which have
involved some 12% of the Tribe's population. She also expressed
general support for the Tulsa amendments.
Oneida Chairwoman Deborah Doxtator and Gila River Indian Community
Governor Mary Thomas gave moving testimony to the Committee about ICWA
cases their tribes have been involved in. Although noting that in most
cases, ICWA is working and does not, therefore, need to be amended,
they expressed general support for the Tulsa amendments.
The hearing's final panel was made up of NCAI President Ron Allen,
adoption attorneys Marc Gradstein, and Jane Gorman, and Tanana Chiefs
Conference counsel Mike Walleri. President Allen schoed the previous
panels' statements that generally ICWA is working and expressed his
concern about legislation, such as Title III and H.R 1448, introduced
by Rep. Pryce last year, which is based on isolated instances and
exceptions to the general rule that the Act is working. He urged the
Committee to move forward with the Tulsa amendments, if ICWA
amendments proceed in this Congress.
Non-Indian adoption attorneys Gorman and Gradstein also gave their
endorsement of the Tulsa amendments and made suggestions for technical
changes to the proposal. In response to a question from Chairman
McCain, Ms. Gorman told the Committee that if the alternative proposal
had been in place, the Rost case--involving an Ohio couple which
sought to adopt twin Pomo Indian girls and which has been the
incentive for Rep. Pryce's efforts in Congress--would never have
occurred, because the tribe would have been given adequate notice, and
incentives in the form of sanctions would have been in place to
discourage misrepresentation that the children are Indian.
Mike Walleri, who represented Tanana Chiefs Conference in discussions
with adoption attorneys on alternative ICWA amendments, indicated that
Sen. Glenn's concern about retroactivity would be addressed by the
Tulsa proposal, because the tribe would be given timely notice that a
placement involved an Indian child who is a tribal member.
Please let us know if you would like a copy of any of the written
testimony presented at today's hearing. The Committee will receive
additional written testimony for two weeks, until July 10th.