A Summary of the Legislative History for the

INDIAN CHILD WELFARE ACT OF 1978 (ICWA)  

PUBLIC LAW 95-608, 25 USC Chapter 21

• A Quick Research Guide to the Indian Child Welfare Act’s Legislative History - Compiled from the Alaska Legal Services Corporation *
  • Process in which ICWA became federal law
  • Legislation
  • Hearings
  • Committee reports
  • Congressional record
• Background of ICWA Discusson Excerpts from Doe v. Mann - July, 2005 . U.S. 9th Circuit Court of Appeals, No. 04-15477, D.C. No. capacity; ROBERT L. CRONE, JR., in ??CV-02-03448-MHP, Filed July 19, 2005 Page 8436

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A Quick Research Guide to the Indian Child Welfare Act’s Legislative History

Compiled from Information Written by the Alaska Legal Services Corporation **

The process in which ICWA became federal law:

A federal bill becomes a law by being

• (a) introduced by a member of Congress,
• (b) considered by congressional committees in its house of origin,
• (c) debated and amended on the floor of its house of origin,
• (d) passed by that house and transmitted to the other house,
• (e) considered by committees in the other house,
• (f) debated and amended on the floor of the other house,
• (g) passed by that house and returned, perhaps in an amended form, to its house of origin,
• (h) adjusted, if there are any differences between the House and Senate versions, either by the originating house’s accepting the other’s amendments or by the amending house’s receding from its amendments, and
• (i) signed by the President, allowed by the President to become law without his signature, or vetoed by the President but with the veto overridden by Congress.

The Indian Child Welfare Act:

(a) Originally introduced by Senator Abourezk in 1976 and then again in 1977, began as Senate bill number 1214 (S. 1214).

(b) It was considered by the Senate Select Committee on Indian Affairs

(c) It was debated on the floor of the Senate, amended and passed by the Senate in 1977.

(d) It was then transmitted to the House of Representatives.

(e) Representative Udall’s sponsored the House version, H.R. 12533 in the spring of 1978. It was then considered by the House Interior Committee’s subcommittee on Indian Affairs and Public Lands.

(f) It was debated and amended on the House floor and then passed on October 14, 1978.

(g) It was then returned to the Senate, where the Senate agreed to the House amendments and passed it on October 15, 1978.

h) It was signed by President Carter. t

lls.

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Legislative Bills.

According to the LEXIS/CIS legislative history, the four ICWA-related bills introduced into Congress were

1. S. 3777 (94th Cong.),
2. S. 1214 (95th Cong.),
3. S. 1928 (95th Cong.) and
4. H.R. 12533 (95th Cong.) … but, as it turns out, S. 1928 was simply a Title IV-E bill that BIA and HEW were suggesting would take care of the problems ICWA addressed. Copies of the various versions of each of these bills are available through the CIS system (but not online). Don’t be alarmed when you see that the fiche-compilers have messed up the first version of H.R. 12533 by substituting several pages from another bill. If you go to the next version, you can spot the text of the previous version in the ‘strikethrough section.’
   

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Hearings.

The principal hearings, in 1974, 1977, and 1978, are available through the CIS system.

• Indian Child Welfare Program, 93rd Cong., 2d Sess. (1974), 1975 CIS S441-25
• Indian Child Welfare Act of 1977, Hearing … on S. 1214, 95th Cong., 1st Sess. (1977), 1978 CIS S961-3
• Indian Child Welfare Act of 1978, Hearing … on S. 1214, 95th Cong, 2d Sess. (1978), 1981 CIS H441-15

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Committee reports.

The most important committee reports (the only committee reports?) are:

• S. Rep. No. 95-597, 95th Cong., 1st Sess. (1977), available only through 1977 CIS S963-20
• H. Rep. No. 95-608, 95th Cong., 2d. Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 1978 CIS H443-53

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Congressional Record.

Senator Abourezk made sponsor statements when introducing

1. S. 3777 [122 Cong. Rec. 28094 (August 27, 1976)] and
2. S. 1214 [123 Cong. Rec. 9994-998 (April 1, 1977)].

The Senate briefly debated S. 1214 before passing it [123 Cong. Rec. 37223-226 (November 4, 1977)].

Representative Udall’s sponsor statement for 1. H.R. 12533 is at 124 Cong. Rec. 12532-534 (May 3, 1978). According to the LEXIS/CIS legislative history, H.R. 12533 was debated in and passed the House on October 14, 1978, but on that same day the House vacated this passage, substituted the text of H.R. 12533 for the text of S. 1214, and passed S. 1214, with the Senate concurring in the House amendments to S.1214 the next day, October 15.

The official record of the Senate action says it took place on October 14. The House’s deliberations are at 124 Cong. Rec. 38101-112 (October 14, 1978), and the Senate’s are at 124 Cong. Rec. 37537-540 (October 14, 1978).

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BACKGROUND OF ICWA

Discusson Excerpts from Doe v. Mann - July, 2005

U.S. 9th Circuit Court of Appeals, No. 04-15477, D.C. No. capacity; ROBERT L. CRONE, JR., in ??CV-02-03448-MHP, Filed July 19, 2005

Page 8436

B. BACKGROUND OF ICWA

Congress passed ICWA in 1978 in response to a growing concern that Indian children were removed from their homes by state child protection officials at an alarmingly high rate and placed in foster care or adoption settings outside their Indian communities and culture. See 25 U.S.C. § 1901(4); Holyfield, 490 U.S. at 32. “At the heart of ICWA” lies a jurisdictional scheme aimed at ensuring that tribes have a role in adjudicating and participating in child custody proceedings involving Indian children domiciled both on and off the reservation. Holyfield, 490 U.S. at 36. This aim is reflected in § 1911(a)’s broad grant of exclusive jurisdiction to most tribes. 25 U.S.C. § 1911(a).

As we have explained, the “existing Federal law” proviso in § 1911(a), providing tribes with exclusive jurisdiction “except where such jurisdiction is otherwise vested in the State by existing Federal law,” is the crux of this case. Although the text of the proviso does not specifically identify Public Law 280, the legislative history surrounding the adoption of § 1911(a) and subsequent court decisions confirm that Congress was referring, at least in part, to Public Law 280. See H.R. Rep. No. 95-1386, at 32 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7554 (letter from Department of Interior); H.R. Rep. No. 95-1386, at 40, 1978 U.S.C.C.A.N. 7530, 7563 (letter from Department of Justice); Holyfield, 490 U.S. at 42 n.16; Native Village of Venetie I, 944 F.2d at 555.

An earlier draft of ICWA, House Resolution 12533, included a provision similar to § 1911(a) but did not refer to “existing” federal laws:

“Sec. 101. (a) An Indian tribe shall have jurisdiction exclusive as to any State over any placement of an Indian child who resides on or is domiciled within the reservation of such tribe.”

Court-Appellees’ Answer Brief at App. 22. During consideration of this earlier legislation, the Departments of Justice and Interior alerted Congress that this section could strip states of jurisdiction already existing where Public Law 280 applied. The Department of the Interior stated,

“We believe that reservations located in States subject to Public Law 83-280 should be specifically excluded from section 101(a) . . . .” (13)

The Department of Justice voiced similar concerns in two letters to Congress:

"As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280 . . . . [S]ection 101(a) of the House draft, if read literally, would appear to displace any existing State court jurisdiction over these matters based on Public Law 83-280. We doubt that is the intent of the draft because, inter alia, there may not be in existence tribal courts to assume such State-court jurisdiction as would apparently be obliterated by this provision." (14)

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13. Letter from Forrest J. Gerard, Assistant Secretary of Interior, H.R. Rep. No. 95-1386, at 32, reprinted in 1978 U.S.C.C.A.N. 7530, 7554. 8437 DOE v. MANN

14. Letters of Patricia M. Wald, Assistant Attorney General, H.R. Rep.
No. 95-1386, at 35, 40, reprinted in 1978 U.S.C.C.A.N. 7530, 7558, 7563.  After these letters were received, Congress amended the legislation to include the “existing Federal law” proviso that became law.

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* According to the Alaska Legal Services Corporation: Much of ICWA's legislative history is not yet available online and relatively little of it is reprinted in the U.S. Code Congressional and Administrative News. However, we now have hardcopy of the Legislative History and will be working on gettng it transcribed. Much of the ICWA legislative history could also be available in libraries that have a full set of Congressional Information Service (CIS) microfiches, or at least a microfilm/microfiche collection of the Congressional Record.

The CIS fiches contain the text of ICWA bills, the printed ICWA hearings, and the ICWA committee reports; the Congressional Record contains statements by bills’ sponsors and records of Congressional deliberations.

In Alaska, there are full CIS sets in Anchorage (Consortium Library and []), Fairbanks (Rasmuson Library), and Juneau (State Library), while there are Congressional Record materials at Consortium Library, [], and the State Library in Juneau.

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** In accordance with Title 17 U.S.C any copyrighted work on this website is distributed under fair use without profit or payment for non-profit research and educational purposes only.
We ENCOURAGE you to go to the original sources to check for accuracy, as well as in some instances the complete document.

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