ICWA Legislative Summary – 1996

Written by David Simmons
National Indian Child Welfare Association,
Staff Member

The Congress began with renewed attacks on the ICWA from House of Representatives members Deborah Pryce (OH-R) and Todd Tiahrt (KS-R). Both introduced stand alone bills, H.R. 3156 and H.R. 3275 respectively, which sought to limit ICWA protections to Indian children and curtail tribal involvement in child custody proceedings involving their member children. Supporters of this legislation argued that tribes were abusing their rights under ICWA and treating Indian children as chattel. Tribes and advocates for Indian children, such as NICWA, began a campaign to educate Congress on the harsh effects these bills would have on Indian children, families, and tribes.

While debate continued on the ICWA stand alone bills another larger adoption bill (H.R. 3286) began to pick up momentum. This bill included tax credits for adoption and amendments to further limit consideration of race or culture in foster care or adoptive placements. Congresswoman Pryce, working with the Rules Committee of which she was a member, was able to attach several of the amendments from H.R. 3156 and 3275 to the larger adoption bill. Now passage of anti-ICWA amendments in the House began to look even more serious.

At this point Congressman Young (AK-R), Chairman of the House Resources Committee moved to get a referral for Title III of H.R. 3286 which contained the anti-ICWA amendments. Under his leadership the House Resources Committee struck out the ICWA amendments. While this should have sent the bill to the House floor without any ICWA amendments, the Rules Committee decided to reinsert the controversial ICWA amendments. Now the battle would go to the House floor with Congressman Young leading an effort to again strike out the ICWA amendments. On a vote of 212 to 195 the motion by Don Young to remove the ICWA amendments under Title III failed. An hour later H.R. 3286 passed the House and was on to the Senate.

In the Senate a different strategy was utilized to stop passage of anti-ICWA amendments and address the concerns of those members that were critical of the ICWA. Senator McCain, in recognition of the lack of input tribes had been given, urged representatives from both tribes and the adoption community to jointly develop legislative solutions to the concerns surrounding the ICWA. With the leadership of the National Indian Child Welfare Association, Tanana Chiefs Conference, and National Congress of American Indians this goal was achieved. A draft set of alternative ICWA amendments was submitted to Senator McCain in June which eventually received the support of the National Congress of American Indians and its member tribes, American Academy of Adoption Attorneys, Clinton Administration, Congresswoman Pryce, Child Welfare League of America, North American Council on Adoptable Children, and American Human Association.

Shortly after the Senate received H.R. 3286 for consideration, the Senate Indian Affairs Committee, chaired by Senator McCain, received jurisdiction over the anti-ICWA amendments in Title III of H.R. 3286. The Indian Affairs Committee moved quickly to strike these amendments, while also scheduling a hearing on the alternative amendments that tribes and other organizations had developed. The hearing, which took place on June 26, provided a solid base of information that supported the measured approach that the alternative amendments followed while clearly identifying the multiple problems that the ICWA amendments in H.R. 3286 proposed. The hearing provided the first time that tribes have been given any formal opportunity to provide input on the ICWA amendments in H.R. 3286.

In July 16th Senator John McCain and Congressman Don Young introduced the alternative ICWA amendments as S. 1962 and H.R. 3828 respectively. The Senate Indian Affairs Committee reported out S. 1962 on July 24th with no changes and the House Resources Committee reported out H.R. 3828 in a similar fashion. Meanwhile, H.R. 3286 had stalled in the Senate with talk of ‘parting out’ the different provisions and placing them in other bills.

The Senate made the first effort to bring their alternative ICWA bill, S. 1962, to the floor for a vote right before the August Senate recess. While much effort was made to resolve last minute concerns that a few Senators had regarding S. 1962 the effort was derailed at the last hour by holds put on the bill based on a letter from the National Right to Life Committee. The letter alleged that S. 1962 would further complicate adoptions of Indian children and possibly encourage abortions. While the substance of the letter was questionable it caused Senate leadership to delay voting on S. 1962 until after the August recess. Meanwhile, the House went to recess without bringing H.R. 3828 to the floor for a vote.

The Senate came back in September with renewed efforts by Senator McCain to resolve the last minute concerns over the ICWA raised by the National Right to Life Committee. After several attempts at resolving the issues with the National Right to Life Committee Senator McCain moved the bill to the Senate floor on September 26th. The Senate passed the bill without objection with only a few days left in the session. The House, however, would prove to difficult to get a vote on either S. 1962 or H.R. 3828 before the session ended. Republican leadership in the House did not allow a vote on either bill based on their concerns over the National Right to Life Committee?s allegations and pressure to move other higher priority bills.

What Will Happen With ICWA Next Year

The year ended much the way it had begun with the current ICWA law still intact. However, the controversy over the ICWA in Congress is not over and will likely continue into the next year, especially when considering Congresswoman Pryce’s clearly stated intention to revisit ICWA again for what she calls more substantive amendments. Tribes and Indian organizations must now prepare for another year of congressional challenges – challenges that may go beyond the scope of recent times as groups such as the National Council for Adoption attempt to achieve an all out repeal of the ICWA.

What can tribes do now to prepare for next year? The most important things to do are strengthen support for the Indian Child Welfare Act at all levels. Information should focus on how ICWA works in voluntary adoptions, the tribes role, the state courts role (when in state court), how tribal sovereignty works for the best interests of the Indian child, professional resources (staff, services, etc) that tribes have available for adoptions, and the variety of placement options that tribes often contemplate (with child’s relatives, other Indian and non-Indian families, etc). You may also want to advocate for the McCain and Young ICWA amendments contained in S. 1962 and H.R. 3828 and why these legislative responses to concerns regarding the application of ICWA in voluntary adoptions are the most reasonable and effective choices. Individuals and groups that your advocacy should focus on include:

Your Congressional delegation.
Your state governor?s administration.
Your state bar association (Indian, adoption, and family law sections).
Adoption agencies, child advocacy groups, religious organizations, and anti-abortion groups that you have a prior relationship or connection with. Focus on how ICWA is pro-family and S. 1962 provides more certainty in Indian adoptions.