United Statesoj America

Q:ongr(ssional1R((ord5th

PROCEEDINGS AND DEBATES OF THE 9 CONGRESS, SECOND SESSION

SENATE-Saturday, October 14, 1978(Legislative day ot Wednesday, October 11, 1978)

NOTICEEffective with the first issue of the Congressional Record for the 96th

Congress, January 15, 1979, the Record will be furnished to sub­scribers for $6.25 per month, $75.00 per year, or $0.50 per copy.

The Record sales price is the first increase since 1970 and is neces­sary to establish a more realistic price for the Congressional Recordbased on production and distribution costs.

CLAIBORNE PELL, Chairman,Joint Committee on Printing.

The Senate met in executive session at9 a.m., on the expiration of the recess,and was called to order by the HonorableDONALD W., RIEGLE, JR" a Senator fromthe State of Michigan.

PRAYER

The Chaplin, the Reverend EdwardL., R. Elson, D.D., offered the followingprayer:

Let us pray:o God our help in ages past, our hope

for years to come, in the march of timethis hallowed Chamber soon will besilent and the judgment of history willbegin, Thou knowest whether we havedone Thy will or our own or neither.Thanks be to Thee for whatever goodhas been achieved. Help us to forget thelow moments and to remember the highmoments with gratitude. Preserve pre­cious friendships. Grant us grace andwisdom for the days yet to come,

Now unto the King eternal, immortal,invisible, the only wise God, be honorand glory for ever and ever"

We pray in the name of Him whocame not to be ministered unto but tominister and give His life for manyAmen"

APPOINTMENT OF ACTINGPRESIDENT PRO TEMPORE

The PRESIDING OFFICER. The clerkwill please read a communication to theSenate from the President pro tempore(Mr, EASTLAND)"

The second assistant legislative clerkread the following letter:

U ..S, SENATE,PRESIDENT PROTEMPORE,

Washington, DC" October 14, 1978To tne senate:

Under the provisions of' rule I, section 3,of the Standing Rules of the senate, Ihereby appoint the Honorable DONALD W.RIEGLE.. JR .. , a Senator from the State ofMichigan, to perform the duties of the Chair

JAMES 0, EASTLAND,Presiden t pro 'tem-pore:

Mr. RIEGLE thereupon assumed thechair as Acting President pro tempore.

RECOGNITION OF LEADERSHIP

The ACTING PRESIDENT pro tern­pore Under the previous order themajority is recognized

THE JOURNALMr. ROBERT G. BYRD.. Mr. President,

I ask unanimous consent that theJournal of the proceedings be approvedto date.

The ACTING PRESIDENT pro tern­pore, Without objection. it is so ordered

Mr. ROBERT G, BYRD, Mr., President,I reserve my time for the moment,

RECOGNITION OF LEADERSHIPThe ACTING PRESIDENT pro tem­

pore Under the previous order theminority is recognized.

Mr" STEVENS, Mr., President, thereare no requests for the minority leader'stime,

Mr. ROBERT G BYRD. Mr. President,will the Senator withhold that?

Mr,. STEVENS., I withhold

ORDER RESERVING LEADERSHIP'STIME

Mr.,ROBERT C. BYRD.. Mr., President,without delaying the Senator from Wis-

consin, I ask unanimous consent thatthe time of each leader be reserved untilafter Mr. PROXMIRE is recognized underthe order.

The ACTING PRESIDENT pro tem­pore. Without objection, it is so ordered"

Mr, ROBERT G. BYRD. Mr,. President,this is as in legislative session,

SPECIAL ORDERThe ACTING PRESIDENT pro tem­

pore Under the special order the Senatorfrom Wisconsin (Mr. PROXMIRE) is rec­ognized

TAXATION OF AMERICANS LIVINGABROAD-DANGER OF NO BILLMr" PROXMIRE. Mr., President, the

House and Senate conferees are nowworking on the subject of the taxation ofAmericans living abroad

The Senate passed an extremely gen­erous bill I find it difficult to accept 'itbecause of its excessive generosity andthe special features and deductions itgives to Americans living abroad as com­pared with those at home

A miner in West Virginia who wouldearn $20,000 a year under the new con­tract would have to pay heavy US., taxes,An American citizen living in London,Bonn, Berlin, Zurich, Paris, Athens, orRome can now "exclude" $20,000 of in­come off the top before he even starts topay taxes,

The House bill, however, is outrageous,combining an exclusion with overly gen­erous deductions For example the 1977calendar year costs of the Treasury pro­posal in this area is $254 million, TheSenate bill would lose about $310 millionin 1977 calendar year calculations .. Butthe House bill would lose $545 million

We are now at the end of the session"If no bill passes the law reverts to the1976 reform act which would cost only$180 million in revenue loss

I have never known a better opportu­nity to save money for the rest of theAmerican taxpayers I serve notice thatif a bill anything close to the House billcomes out of the conference, or if it isnot substantially in the revenue area ofthe Treasury proposal or Senate bill, thisSenator for one would rather have nobill and let the 1976 reform provisionsfinally go into effect,

A number of individuals and lobbyinggroups have overstepped themselves onthis issue, There are some genuine prob­lems for a limited number of Americansliving abroad, But if a "greedy" bill sur-

Statements or insertions which are not spoken by the Member on the floor will be identified by the use of a "bullet" symbol, i.e., •

37379

CONGRESSIONAL RECORD ·---HOUSEOctober 14, 1978

ast decade. the Federal budget has~rown from .$180 billion to close. to $500billion Durmg that same period, theproportion of so-called uncontrollablespending has increased from 55 percentof the budget to 75 percent

For fiscal 1979. the President requestedbudget increases totaling $40 billion overlast fiscal year.. Of that amount, fullythree-fourths was automatically com­mitted for entitlement programs likesocial security or welfare before the firstbudget decision was made .. This leaveslittle room for existing programs to keeppace with inflation, let alone new initia­tives for meeting arising needs .. All thetime the Congress continually receivesdem~nds from constituents for more as­sistance for local projects or nationalproblems. Clearly, w.e face l;l situation inwhich obsolete or ineffectdve programshave to be eliminated to make way fornew ones ..

Too little attention, however, is givento identifying those programs we can cutback or do without During the 2dsession of the 95th Congress, I havechaired a task force of the New Mem­bers' Caucus on Congressional OversightAn inventory we have taken on oversightactivities undertaken on programs UP forreauthorization has revealed many in­stances in which only cursory if anyevaluation of the effectiveness of suchprograms was carried out Even thoughthe House rules require all committeesto conduct oversight on existing pro­grams before deciding on continuingthem, this requirement, if not ignored,is observed in no uniform way to makesure it is constructive or leads to bettercontrol over Government spending Forexample, one subcommittee told by staffa reauthorization was just routine andrequired no oversight. I question whetherany measure involving expenditure oftax dollars should be considered soroutine that a careful examination ofwhether the expenditure would be war­ranted or worthwhile should not becarried out

Our findings have convinced me thatwe must establish a system which guar­antees the periodic review of all spend­ing programs to determine their effec­tiveness and the need for them to be ex­tended and amended.

Such a system, in my view, must in­clude several features if it is going toimprove congressional oversight activi­ties.

First, a program evaluation systemneeds an internal enforcement mecha­nism .. As I mentioned earlier, a mere re­quirement for program review, like theexisting House oversight rule, is inade­quate without some feature to make sureit is observed. The "sunset" approach ofS. 2 is the best such mechanism proposedto date. The termination of all programsev~ry few years, thereby requiring affirm- ..atlve congressional action before ex­penditures under them are reauthorized,creates a strong incentive to conduct pro­gram review.

.~e Senate bill contains another pro­VISIOn which I believe would serve as aneffe~tive enforcement mechanism Thissectton would make it out of order forCongress to consider reauthorization of a

program unless it has been reviewed andthe report accompanying the measureaddresses certain questions relating tocontinuation. This proposed rules changein conjunction with the "sunset" conceptof termination assures not only that re­consideration of all programs will takeplace over a 10-year period but also thatthe review of these programs will bemeaningful

A second feature I believe necessaryfor a good evaluation system is a com­prehensive approach. Including all ex­penditures would facilitate considerationof programs falling under the samebudget functions together. The majorcause of the meteoric rise in Governmentspending in the past decade has been theenactment of a vast array of categoricalprograms many of which are designed toaccomplish similar goals but are frag­mented and duplicated By evaluating allsuch programs together, we can betterdetermine which are the most effectivein meeting needs, where they overlap andhow they can be coordinated or consoli­dated

For a comprehensive approach to pro­gram evaluation to be effective. in myview, it must include tax expendituresin the scope of the process.

The revenue loss through tax ex­penditures is the fastest growing part ofthe Federal budget Ten years ago theloss to the Treasury from such provi­sions amounted to $35 billion Thebudget for the current fiscal year is ex­pected to show a loss of over $124 billionBecause tax expenditures result fromefforts to accomplish certain policy goalsnot related to taxes, they should also besubjected to the same sunset and reviewrequirements as regular spending pro­grams So that periodically they, too, canbe evaluated to determine if they areefficiently and effectively accomplishinggoals still deemed to be appropriate na­tional policy By excluding tax expendi­tures from a program evaluation system.roughly one-fifth of the Federal budgetwould remain uncontrollable..

The last feature I have found to beessential for effective oversight orevaluation is an explicit but flexible pro­cedure which includes a statement ofprogram intent at the outset and a listof minimum criteria to be considered ..The work of the New Members' TaskForce on Oversight has revealed mostclearly that it is necessary not only to re­quire that oversight be carried out but tospell out how it should be done .. As our in­ventory has shown, oversight means dif'­ferent things to different people The ex­treme example of how oversight can failis the case of one committee that con­sidered a program coming up for exten­sion. It held 1 day of hearings durmgwhich a total of 11 witnesses testi­fied, all of whom had a vested interestin seeing the program continued and,not surprisingly, all of whom sang itspraises. By requiring that the analysisinclude agreed upon standards againstwhich program performance can bemeasured and specified steps for deter­mining their effectiveness. we can pre­vent meaningless oversight and estab­lish a program evaluation system which

38101will lead to a more efficient and effectiveFederal Government

Translating these principles intolegislation that workable and acceptablewill not be easy Many questions aboutcost, time and staffing requirements, thescope of the system and jurisdictionaldifferences that could be created willhave to be resolved

Nevertheless, I believe it is an effortthat must be made .. The growing disaffec­tion and dissatisfaction with Governmenton the part of the American people isperfectly understandable as Governmentcontinues to expand, taking more andmore of income through taxes with fewnoticeable benefits and too many appar­ent failures It is incumbent on the Con­gress, in my view, to develop a systemwhich will enable us to streamline theGovernment--cut out the waste and dup­lication and improve the delivery of serv­ices the public sector should provide. Thefailure to develop such a discipline meansthat a new initiative, however meritori­ous, can never be launched and that, ul­timately, taxpayer disaffection will re­sult in a blunderbuss proposition 13 forthe Federal Government.

I urge my colleagues to join the gen­tleman from Michigan and other spon­sors of program evaluation legislation, aswell as the members of the Rules Com­mittee, in developing this much neededsystem for effective oversight of Govern­ment programs

INDIAN CHILD WELFARE ACTMr. UDALL Mr .. Speaker, I move that

the House resolve itself into the Commit­tee of the Whole House on the State ofthe Union for the consideration of thebill (HR. 12533) to establish standardsfor the placement of Indian children infoster or adoptive homes, to prevent thebreakup of Indian families, and for otherpurposes.

The SPEAKER. The question is on themotion offered by the gentleman fromArizona (Mr. UDALL).

The motion was agreed toIN THE COMMIT7EE OF THE WHOLE

Accordingly the House resolved itselfinto the committee of the Whole Houseon the state of the Union for the con­sideration of the bill HR. 12533, with Mr.GEPHARDT in the chair.

The Clerk read the title of the bill.The CHAIRMAN. Pursuant to the rule,

the first reading of the bill is dispensedwith

Under the rule the gentleman fromArizona (Mr. UDALL) will be recognizedfor 30 minutes, and the gentleman fromCalifornia (Mr. LAGOMARSINO) will be rec­ognized for 30 minutes

The Chair recognizes the gentlemanfrom Arizona (Mr UDALL).

Mr. UDALL Mr. Chairman, I yield my­self such time as I may consume.

Mr. Chairman, this bill is the result ofover 4 years of congressional hearings,oversight, and investigation. During thatperiod, the House, the Senate, and theAmerican Indian Policy Review Com­mission held days of hearings and heardfrom hundreds of witnesses on the sub­ject of foster care and adoptive place­ment of Indian children.

CONGRESSIONAL RECORD -HOUSE38102The bill, in concept is supported unan-,

imously by the Indian community; byseveral states, and by numerous privateagencies involved in child welfarematters

The record developed by this congres­sional oversight has disclosed a seriousproblem in Indian child welfare whichapproaches crisis proportions,

Studies have revealed that about 25percent of all Indian children are re­moved from their homes and placed insome foster care or adoptive home or in­stitution" This figure, standing by itself,is shocking

In 1976, there were 54,709 Indianchildren under 21 in Arizona Of these,1,029 or 1 out of every 52 were placedfor adoption, For non-Indians, the ratiowas 1 out of every 220, In other words,4.2 times more Indian children wereplaced for adoption in Arizona thannon-Indian children, The foster careratio was 1 out of every 98 Indians placedfor foster care as opposed to 1 out ofevery 263 for non-Indians.

The statistics for other States surveyedwere no less shocking. These figures notonly show that Indian children are be­ing removed from their families atalarming rates, but they also show thatin the overwhelming majority of thecases, the children are placed in non­Indian homes

Indian tribes and Indian people arebeing drained of their children and, as aresult, their future as a 'tribe and a peo­ple is being placed in jeopardy

There are several reasons for thiscrisis in the Indian community One,obviously, is the general poverty exist­ing in Indian communities, Because oftheir economic or social condition theysometimes find it difficult to adequatelyraise their children or, more often, thispoverty is used by State welfare agenciesand officials as prima facia evidence totake the children from their families,

Title II of the bill is aimed at thisfactor. It authorizes the Secretary of theInterior to make grants to Indian tribesand organizations to operate Indianchild and family service programs Theseprograms would assist in stabilizing In­dian families and provides support toalleviate conditions of poverty, In addi­tion, it provides tools to protect anddefend the Indian family from outsideassault.

The most distressing and critical fac­tor giving rise to this emerging crisis ofIndian families has been the inabilityor unwillingness of State agencies or of­ficials to understand the differentcultural and social norms prevailing inthe Indian world, The record shows that,in all too many cases, Indian parentshave their children forcibly taken fromthem not because they are unfit parentsor because they cannot adequately pro­vide for those children as measured bythe norms prevailing in the Indian corn­munity, but because they are Indians

This is a shocking statement to makeand, in this age of victory of racial civilrights, some members may not give itcredence. Therefore, I will cite verbatimthe findings of fact made by a Statecourt which terminated the parentalrights of an Indian woman to her child

without finding that she was an unfitmother I quote:

The child has physical features. as ob­served by the Trial Court, of a non-Indiannature and her return to an environmentconsisting of primarily Indian people wouldSUbject her to being reared under unnaturalconditions that would be detrimental andendanger her emotional well-being"

Solely on the grounds that she is anIndian living on an Indian reservation,this woman has been denied her childAfter months of heartbreak and misery,this woman has had to petition the Su­preme Court to review this holding andthe case is now pending We can onlyhope that they grant review and over­turn the lower court decision

One case of this kind would meritpassage of this bilL But, all too often,Indian parents have had to chase theirchildren from State to State--court tocourt-only to find the door slammed intheir face by a denial of practical dueprocess.

Title I of this bill addresses this factor.It clarifies the allocation of jurisdictionover Indian child custody proceedingsbetween Indian tribes and the StatesMore importantly, it establishes mini­mum Federal standards and proceduralsafeguards to protect Indian familieswhen faced with child custody proceed­ings against them in State agencies orcourts,

Mr. Chairman, because of the trustresponsibility owed to the Indian tribesby the United States to protect their re,­sources and future, we have an obliga­tion to act to remedy this serious prob­lem. What resource is more critical to anIndian tribe than its children? What ismore vital to the tribes' future than itschildren?

We have the constitutional power toact and we must do so.

I must raise the objections of the De­partment of Justice to this bill. Seekinga reason to oppose the legislation, Justicehas timidly alleged that certain provi­sions of the bill are unconstitutional asan invasion of State prerogatives,

They offer no support for this positionbeyond the citation of a 1954 law reviewarticle, Eight pages of our committeereport is devoted to a close analysis ofthe Supreme Court decisions in this areaand it firmly supports the constitution­ality of all the provisions of the bilL Inaddition, the American law division ofthe Library of Congress made a similarexhaustive analysis and arrived at thesame conclusion"

Finally, I will address the cost factorof the bill. CBO has estimated that thisbill will cost approximately $125,000,000over 5 fiscal years If that figure wereaccurate, I would still find the cost worththe goal to be achieved But, as noted inthe committee report, we take issue withsome of CBO's assumption in makingthat estimate and find it too high.

However, I will offer an amendmentwhich would have the result, assumingCBO's estimate is accurate, of reducingthe cost of this bill by $80,000,000 over 5years, The estimated cost would then be$44,000,000 or around $9,000,000 a year"

Mr. Chairman, I urge passage of thismost vital legislation

October 1/;, 19'18

Mr. LAGOMARSINO Mr, Chainnan,I yield myself such time as I may con­sume.

I rise in support of HR, 12533, the In­dian Child Welfare Act of 1978,

This bill is directed at conditionswhich not only threaten the integrityand stability of Indian families and thefuture of American Indian tribes, butalso guarantee a continual sad harvest ofindividual human suffering.

The record of nearly 5 years of con­gressional oversight on Indian childplacements and adoptions shows a dis­proportionately high percentage of In­dian families are broken up by the re­moval, often unwarranted, of their chil­dren by nontribal public and private'agencies More than 62,000 of the esti­mated 250,000 children whose parentslive on or near reservations are currentlyin foster care or adoptive homes or insti­tutions Including those whose familieslive in urban areas or with rural nonrec­ognized tribes, the number is closer to100,000 children.

An Indian child welfare statistical sur­vey conducted by the Association onAmerican Indian Affairs and publishedin July 1976, showed the rate of separa­tion among Indians is much higher thanin non-Indian communities. In Arizona1 out of every 29 Indian children isplaced for adoption as compared to 1out of every 134 non-Indians In Wiscon­sin it is 1 out of 14 as compared to 1out of 25L This gross disparity is alsotrue of foster care placement and thedisparities are found in all of the 24States surveyed In some States as highas 95 percent of these children are placedin non-Indian foster or adoptive homesor institutions

The reasons behind these statistics gobeyond the general poverty prevalent inmany Indian communities, Hearing wit­nesses reiterate time and again the fail­ure or inability of State agencies, courts,and procedures to fairly consider thediffering cultural and social norms inIndian communities and families. Thesefailures frequently result in the effectivedenial of due process in Indian childcustody proceedings

The record shows that separationsoften occur where the natural parentdoes not understand the nature of thelegal documents or proceedings involved;that only about 10 percent of Indianchildren and their parents are repre­sented by counsel at involuntary place­ment proceedings, Regrettably, publicand private agency officials are all toooften unfamiliar with and/or disdainfulof Indian culture and society, Often theconditions which lead to separation arenot demonstrably harmful or are re­mediable or transitory in characterGenerally, there are no requirements forresponsible tribal authorities to be con­sulted about or even informed of childremoval actions by nontribal governmentor private agents"

There is a clear consensus among In­dians and professionals who have dealtwith the problems stemming from sepa­ration of Indian children from theirnatural parents and placement in insti­tutions or homes which do not meet their

October 14, 1978 CONGRESSIONAL RECORD -- HOUSE 38103special cultural needs. In short, it is so­cially and culturally undesirable.

For a child, separation can cause aloss of identity and self-esteem. The highnumber of separations undoubtedly con­tribute directly to the comparatively highrates among Indian children of schooldropouts, alcoholism and drug abuse,suicides, and crime Moreover, separa­tion of an Indian child from his familyleads to the loss of his right to share inthe cultural and property benefits ofmembership in his tribe.

For parents, separation is likely alsoto result in a loss of self-esteem, whichin turn can aggravate conditions, suchas alcohol abuse, which may initiallyhave led to a child's removal from thefamily.

For Indians generally and tribes inparticular, the continued wholesale reo.moval of their children by nontribal gov­ernment and private agencies constitutesa serious threat to their existence as on-·going, self-governing communities.

The United States, as trustee for In­dian tribal lands and resources, has aclear interest and responsibility to actto assist tribes in protecting their mostprecious resource, their children H ..R12533 is, therefore, designed to preventthe unnecessary and unjustifiable sepa­ration of Indian children from theirfamilies and tribal communities by pro­viding for effective due process and equalprotection under the law.

The bill clarifies jurisdiction over childcustody proceedings relating to Indianchildren, establishes minimum proce­dural and evidentiary standards for theremoval of Indian children from theirfamilies and placement in foster homesor institutions.. In addition, it providesfor grant assistance to Indian tribes andorganizations for the operation of childand family service programs

Mr. Chairman, the bill's provisions arewell explained in the committee's reportand I will not detail them here.

Suffice it to say that the bill as reportedby the committee is the result of thor­ough and careful consideration of a broadrange of viewpoints and proposals. TheHouse bill is a rewrite of its senate coun­terpart, S. 1214. Many Suggestions of theDepartments of Interior, Justice, andHEW have been included in the text. Infact, of some 30 specific suggestions madeby Justice and Interior which are con­tained in their letters in the committeereport, 22 are now part of the bill, Thosenot included were considered and foundeither unnecessary or not meritoriousOn that point, I would like to express dis­may at the persistence of the Departmentof Justice in alleging that this bill mayhave constitutional problems

Justice originally raised its constitu­tional concerns months ago. The commit­tee provided in its report an extensiveanalysis and rebuttal of these questions.Nevertheless, within the past few daysthe Department has contacted Membersof the House making the same argu­ments it did months ago. It has madeabsolutely no effort to reply to the com­mittee's position.

Mr.. Chairman, at this point I includea letter written by Chairman UDALL to

the Justice Department with respect toits conduct on this matter

COMMITTEE ON INTERIOR ANDINSULAR AFFAIRS,

Washington, DC, October 2,1978.Hon. PATRICIA M. WALD,Assistant Attorney General,Department Of Justice,Washington, D C.

DEAR ATTORNEY GENERAL WAID: I have re­Viewed your letter of September 15 to con­gressman Roncalio, which reiterates theObjections of the Department of Justice tocertain provisions of H.R. 12533, concerningIndian child welfare .. The Committee verycarerulty considered the Department's con­cerns as set forth in your February 9 andMay 23 tetters, and amended the bill to meetsome of the Department's objections Onother points, the Committee did not agreewith your position

You !lst three constitutional problems:First, you express objection to section (4)

(b) Since this is no more than a definitionof a term, it has no substantive effect in andof itself It relates to YOUI' third point andI discuss it below

Secondly, you raise constitutional objec­tions to section 102 regarding the impositionof Federal procedural and SUbstantivestandards on state courts .. The only legalsupport you cite for your position is a 1954Columbia Law Review article The Commit­tee has explored the case law at some lengthand has expressed its opinion on the matteron pages 12 through 19 of the Committeereport. Enclosed is a copy to which I inviteyour attention,

Your third point, which is essentially thesame as YOUI' first, questions the constrtu­tionality of section 101(b) with respect to anon-tribal member custodian of an Indianchild not a member of a tribe I would firstpoint out that section 101(b) deals withfoster care placement and termination ofparental rights" These are actions affectIngparental, not custodtal, rights" The subsec­tion, as amended, also gives either parent arlght to veto the transfer of a case to thetribal court Secondly, as amended, the sub­section would permit the state court to re­fuse to transfer the case for good cause,Finally, as noted on pages 16 and 20 of theCommittee report, the Committee disagreeswith the Department on the legal status ofan Indian child who is "merely" eligiblefor enrollment in an Indian tribe.

You also find two technical problems withthis legislation:

First, you object to the phrase in thedeclaration of purpose with respect to the"special responsibllity and legal ob!lgations"of the United States based upon the Whitev: Califano decision. While I do feel thatsuch a responsiblltty exists under currentlaw, I would not object to an amendmentstriking the phrase

Secondly, you object to the definition of"reservation" in section 4 (10) to the extentthat it relates to reservation boundartes thathave been disestablished You state that itcould be read to re-estab!lsh such boundarieswithout taking into account the impact onthe residents in the areas to be affected. Theonly residents who would be affected wouldbe members of Indian tribes and Indianchlldren who are members of or eligible formembership in an Indian tribe. The Com­mittee expressly took this into considerationand f'utly intends that the provisions havethis impact, Non-Indians will no more beaffected by this provision than are non­Indians who currently live within a reserva­tion which has not been disestablished

I firmly believe that a review of the legis­Ia ti ve record on this bill wlll persuade onethat a domestic crisis exists for Indian fam­llles and that state COutts and agencies andtheir procedures share a Iarge part of the re­sponsiblllty for this crisis I firmly believe

that the ruture and integrity of Indian tribesand Indian families are in danger because ofthis crisis I regret very much that the De­partment of Justice has not seenftt to co­operate fully with the Congress in resolvingthis crisis, but, rather has raised constitu­tional and other objections with little legalsupport for these positions

I ful ly intend to seek House passage of thisbill as reported by the Committee While wemay have to accept one 01' more amendmentson the floor, I will strongly resIst any amend­ments inconsistent with my strong views,above, parttcularty your third constitutionalargument .. snouia this legislatlon be sent tothe President for his signature, it would be ashame and a travesty for the Department torecommend a veto. The right of Indian tribesand Indian f'amilies to their children is ahuman right and the defense of humanrights, like charity, begins at home

Sincerely,MORRIS K, UDALL,

Chairman.

Mr .. LAGOMARSINO. Mr. Chairman,I yield back the balance of' my time.

Mr. UDALL Mr. Chairman, I yieldback the balance of my time.

The CHAIRMAN. Under the rule itshall be in order to consider the amend­ment in the nature of a substitute rec­ommended by the Committee on Interiorand Insular Affairs now printed in thebill as an original bill for the purposeof amendment and said substitute shallbe read by sections instead of by titles

The Clerk will read.The Clerk read as follows:Be it enacted by the Senate and House of

Represetitatiues Of the United States ofAmerica in Congress assembled, That thisAct may be cited as the "Indian Child Wel­fare Act of 1978"

SEC 2.. Recognizing the special relation­ship between the United States and theIndian tribes and theIr members and theFederal responsibility to Indian people, theCongress finds-·

(1) that clause 3, section 8, article I ofthe United States Constitution provides that"The Congress shall have Power' • • Toregurate Commerce' •• wIth Indian tribes"and, through this and other constitutionalauthority, Congress has plenary power overIndian affairs;

(2) that Congress, through statutes,treaties, and the general course of deallngwith IndIan tribes, has assumed the respon­sibility for the protection and preservattonof Indian tribes and their resources;

(3) that there is no resource that is morevital to the continued existence and integ­IHy of Indian tr ibes than their children andthat the United States has a direct interest,as trustee, in protecting Indian chtldr'en whoare members of or are eligible for member­ship in an Indian tI'!be;

(4) that an alarmingly high percentageof Indian families are broken up by theremoval, often unwarranted, of their chil­dren from them by nontribal publlc andprivate agencies and that an alarmingly highpercentage of such children are placed innon-Indian foster and adoptive homes andinstitutions; and

(5) that the States, exercising their rec­ognized jurisdiction over Indian child cus­tody pr oceedlngs through administrativeand Judicial bodies, have often failed tcrecognize the essential tribal relations ofIndian people and the cultural and socialstandards prevailing in Indian communitiesand families

SEC. 3 The Congress hereby declares thatit is the pollcy of this Nation, in fulflllmentof its special responsibillty and legal obllga­tlons to the American Indian people, tcprotect the best interests of Indian children

CONGRESSIONAL RECORD -, HOUSE38104and to promote the stability and security ofIndian tribes and faml1les by the establtsh­ment of minimum Federal standards for theremoval of Indian children from their fami­lies and the placement of such chlIdren Infoster or adoptive homes Which wl1l reflectthe unique values of Indian culture, and byproviding for assistance to Indian tribes Inthe operation of chlId and family service pro­grams.

SEC, 4" For the purposes of this Act, exceptas may be specifically provided otherwise, theterm-

(1) "chlId custody proceeding" shall meanand Include-

(I) "foster care placement" which shallmean any action removing an Indian chlIdfrom Its parent 01 Indian custodian for tem­porary placement In a foster home or Institu­tion where the parent or Indian custodiancannot have the child returned upon de­mand, but where parentat rights have notbeen terminated;

(II) "termination of parental rights" whichshall mean any action resulting In the ter­mination of the parent-chlId relationship;

(ili) "preadoptlve placement" which shallmean the tempOI'RI'Y placement of an IndianchlId In a foster home or institution after thetermination of parental lights, but prior toor In lieu of adoptive placement; and

(Iv) "adoptive placement" which shallmean the permanent placement of an Indianchild for adoption, Including any action re­sulting in a final decree of adoptionSuch term or terms shall not Include a place­ment based upon an act which, If committedby an adult, would be deemed a crime orupon an award, In a divorce proceeding, ofcustody to one of thc parents ..

(2) "extended family member" shall be asdeflned by the law or custom of the Indianchild's tribe or, In the absence of such lawor custom, shall be a person who has reachedthe age of eighteen and who Is the Indianchild's grandparent, aunt or uncle, brotheror sister, brother-In-law or slster-In-Iaw,niece or nephew, fiI'St or second cousin, orstepparent;

(3) "Indian" means any person who Is amember of an Indian tribe;

(4) "Indian child" means any unmarriedperson who Is under age eighteen and Iseither (a) a member of an Indian tribe or (b)is eligible for membership in an Indian tribeand Is the biological child of a member of anIndian tribe;

(5) "Indian child's tribe" means (a) theIndian tribe in which an Indian child is amember or eligible for membership or (b),In the case of an Indian cbild who Is a mern­bel' of or eligible for me iership In morethan one tribe, the Indian crlbe with whichthe Indian child has the more significantcontacts;

(6) "Indian custodian" means any Indianperson who has legal custody of an Indianchild under tribal law or under State lawor to whom temporary physical care, custody,and control has been transferred by theparent Of such child;

(7) "Indian organization" means anygroup, association, partnership, corporation,or other legal entity owned or controlled byIndians, or a majority of whose members aleIndians;

(B) "Indian tribe" means 'any Indiantribe, band, nation, or other organized groupor community of Indians recognized aseligible for the services provided to Indiansby the Secretary because of their status asIndians, Including any Alaska Native vlllageas defined In section 3(c) of the Alaska Na­tive Claims Settlement Act (85 Stat.. 68B,697), as amended;

(9) "parent.. means any biological parentor parents of an Indian child or any Indianperson who has lawfUlly adopted an Indianchild, including adoptions under tribal lawor custom. It does not Include the unwedfather whose paternity has not been ac­knOWledged or established;

(10) "resel'vation" means Indian countryas defined in section 1151 of title 18, UnitedStates Code In any case were it has beenjudicially determined that a reservation hasbeen diminished or the boundaries disestab­lished, the term shall include the landswithin the last recognized boundaries ofsuch diminished reservation prior to enact­ment of the statute which resulted In thediminishment or disestablishment;

(11) "Secretary" means the Secretary ofthe Interior; and

(12) "tribal court" means a court withjurisdiction over child custody proceedingsand 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 admtntstrattve body of a tribewhich Is vested with authority over childcustody proceedings,

Mr .. UDALL (during the reading), Mr.Chairman, I ask unanimous consent thatall sections preceding title I be consid­ered as read, printed in the RECORD, andopen to amendment at any point

The CHAIRMAN .. Is there objection tothe request of the gentleman from Ari­zona?

There was no objection ..AMENDMENt' OFFERED BY MR UDALL

Mr. UDALL, Mr., Chairman, I offer atechnical amendment to the sectionspreceding title 1.

The Clerk read as follows:Amendment offered by Mr. UDALL: On page

29, In line 24, strike the phrase" (85 Stat68B, 697)" and insert, in !leu thereof', thephrase "(85 Stat 688,689) ....

The amendment was agreed toMr. UDALL.. Mr. Chairman, I ask

unanimous consent that the remainderof the bill be considered as read, printedin the RECORD, and open to amendmentat any point.

The CHAIRMAN, Is there objection tothe request of the gentleman from Ari­zona?

There was no objection.The remainder of the bill is as follows:

TITLE I-CHILD CUSTODY PROCEEDNGSSEC, 101 (a) An Indian tribe shall have

Jurisdiction exclusive as to any State overany child custody proceeding involving anIndian child who resides 01 is domiciledwithin the reservation of such tribe, exceptwhere such jurtsdlction is otherwise vestedin the State by existing Federal law. Wherean Indian child Is a ward of a tribal COUlt,the Indian tribe shall retain exclustve Juris­diction, notwithstanding the residence or'domicile of the child

(b) In any State court proceeding for thefoster care placement of. or' termination ofparental rights to, an Indian child not domi­ciled or residing within the reservation of theIndian child's tribe, the court, in the ab­sence of good cause to the contrary, shalltransfer such proceeding to the junsdlctronof the tribe, absent objection by either par­ent, upon the petition of either parent or theIndian custodian or the Indian child's tribe :Provided, That such transfer shall be subjectto decllnatlon by the tribal court of suchtribe

(c) In any State court proceeding for thefoster care placement of, or termination ofparental ,rights to, an Indian child, the Iri­dian 'custodian of the child and the Indianchild's tribe shall have a light to interveneat any point in the proceeding

(d) The United States, every State, everyterritory or' possession of the United States,and every Indian tribe shall give full faithand credit to the public acts, records, andjudicial proceedings of any Indian tribe ap­pllcable to Indian child custody proceedingsto the same extent that such entitles give

October 14, 1978full faith and credit to the public actsrecords, and JUdicial proceedings of anyother entity

SEC. 102 (a) In any Invotuntary proceedingin a State COUlt, where the court knows orhas reason to know that an Indian child isInvolved, the party seeking the foster careplacement of', or termination of parentalrights to, an Indian child shall notify theparent or Indian custodian and the Indianchild's tribe, by register ed mail with returnreceipts requested, of the pending proceed­Ings and of their' right of Intervention, Ifthe identity or location of the parent or In­dian custodian and the tribe cannot be de­termined, such notice shall be given to theSecretary in llke manner, who shall havefifteen days after receipt to provide the req­uisite notice to the parent or Indian cus­todian and the tribe No foster care place­ment or terminatton of parental rights pro..ceeding shall be held untlI at least ten daysafter receipt of notice by the parent or In­dian custodian and the tribe or the Secre­tary: Provided, That the parent OI' Indiancustodian or the tribe shall, upon request,be granted up to twenty additional days toprepare for such proceeding.

(b) 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 discretton, appoint counsel for thechild upon a finding that such appointmentis In the best Interest of the child WhereState law makes no provision for' appoint..ment of counsel in such proceedtngs, thecourt shall promptly notify the secretaryupon appointment of counsel, and the sec­retary, upon certification of the presidingjudge, shall pay reasonable fees and expensesout of funds w.hich may be approprtatedpursuant to the Act of November 2, 1921(42 Stat, 208; 25 tr.s.c 13)

(c) Each party to a foster care placementor termtnatton of parental lights proceedingunder' State law involving an Indian childshall have the right to examine all reportsor other documents filed with the courtupon which any decision with respect to suchaction may be based,

(d) Any party seeking to effect a fostercare placement of, or termination of paren­tal lights to, an Indian child under Statelaw shall satisfy the court that active effortshave been made to provide remedial servicesand rehabilltatlve programs designed to pre­vent the breakup of the Indian family andthat these efforts have proved unsuccessful.

(e) No foster care placement may be or­dered In such proceeding In the absence of adetermination, supported by clear and con­vincing evidence, including testimony ofqualified expert Witnesses, that the con­tinued custody of the chlld by the parentor Indian custodian is llkely to result inserious emotional or physical damage to thechild,

(f) No termination of parental rights maybe ordered in such proceeding In the absenceof a determtnatton, supported by evidencebeyond a reasonable doubt, Including testi­mony of qualified expert witnesses, that thecontinued custody of the child by the parentor Indian custodian Is llkely to result Inserious emotional or physical damage to thechild

SEC 103 (a) Where any parent OI' Indiancustodian voluntarily consents to a fostercare placement 01 to termination of' parentallights, such consent shall not be valld unlessexecuted In writing and recorded before ajudge of a court of competent jurisdictionand accompanied by the presiding judge'Scertificate that the terms and consequencesof the consent were fully explained In detal!and were f ully understood by the parent orIndian custodian The court shall also cer­tlfy that either the parent or Indian cus­todian fully understood the explanation inEngllsh or that it was Interpreted into a

Octobm'14, 1978 CONGRESSIONAl. RECORD _.- HOUSE 3810!)language that the parent or Indian custodianunderstood Any consent given prior to, orwithin ten days after, birth of the Indianchild shall not be valid

(b) Any parent or Indian custodian maywithdraw consent to a foster care placementunder State law at any time and, upon suchwithdrawal, the child shall be returned to theparent or Indian custodian

(c) In any voluntary proceeding for terrnt­nation of parental rights, to, or adoptiveplacement of, an Indian child, the consentof the parent may be withdrawn for any rea­son at any time prior to the entry of a finaldecree of termination or adoption, as thecase may be, and the child shall be re­turned to the parent

(d) After the entry of a final decree ofadoption of an Indian child In any Statecourt, the parent may withdraw consentthereto upon the grounds that consent wasobtained through fraud or duress and maypetition the court to vacate such decreeUpon a finding that such consent was ob­tained through fraud or duress, the courtshall vacate such decree and return thechild to the parent" No adoption which hasbeen effective for at least two years may beinvalidated under the provisions of this sub­section unless otherwise permitted underState law.

SEC 104 Any Indian child who Is the sub­ject of any action for foster care placementor termination of parental rights under Statelaw, any parent or Indian custOdian fromwhose custody such child was removed, andthe Indian child's tribe may petition anycourt of competent jmisdlction to Invalidatesuch action upon a showing that such ac­tion violated any provision of sections 101,102, and 103 of this Act

SEC 105 (a) In any adoptive placementof an Indian child under' State law, a pref..erence shall be given, in the absence ofgood cause to the contrary, to a placementwith (1) a member of the child's extendedfamily; (2) other' members of the Indianchild's tribe; or (3) other' Indian families

(b) Any child accepted for foster care orpreadoptive placement shall be placed Inthe least restrictive setting which most ap­proxlmates a family and In which his spe­clal needs, If any, may be met The childshall also be placed within reasonable prox­imity to his or her home, taking Into accountany special needs of the child" In any foster'care or preadoptlve placement, a preferenceshall be given, In t>e absence of good causeto the contrary, to a placement with-

(i) a member of the Indian child's ex­tended family;

(ll) a foster' home licensed, approved, orspecifie<l by the Indian child's tribe;

(iii) an Indian foster home licensed or ap­proved by an authorized non-Indian licens­Ing author'lty; or

(Iv) an Institution for children approvedby an Indian tribe or operated by an Indianorganization which has a program suitableto meet the Indian child's needs,

(C) In the case of a placement under suo­section (a) or (b) of this section, If the In­dian child's tribe shall establish a differentorder of preference by resolution, the agencyor court effecting the placement shall followsuch order so long as the placement Is theleast restrictive setting appropriate to theparttcuiar needs of the child, as provided inparagraph (b) of this section. Where appro­priate, the preference of the Indian childor parent shall be considered: Provided, ThatWhere a consenting parent evidences a desirefor anonymity, the court or agency shall giveweight to such desire In applying the prefer..ences.

(d) The standards to be applied In meetingthe preference requirements of this sectionshall be the prevatllng social and culturalstandards of the Indian community In whichthe parent or extended family resides or withWhich the parent or' extended family mem­bers maintain social and cultural ites

(e) A record of each such placement, underState law, of an Indian child shall be main­tained by the State In which the placementwas made, evidencing the efforts to complywith the order of preference specified In thissection Such record shall be made availableat any time upon the request of the Secre­tary or the Indian child's tribe,

SEC 106. (a) Notwithstanding State law tothe contrary, whenever a final decree ofadoption of an Indian child has been vacatedor set aside or the adoptive parents volun­tarily consent to the termination of theirparental rights to the child, or biologicalparent or' prior Indian custodian may peti­tion for return of custody and the court shallgrant such petition unless there Is a showing,In a proceeding subject to the provistons ofsection 102 of this Act, that such return ofcustody Is not In the best Interests of thechild

(b) Whenever an Indian child Is removedfrom a foster care home or' Institution forthe purpose of further foster care, preadop..,tlve, or adoptive placement, such placementshall be In accordance with the provisionsof this Act, except In the case where an In­dian child Is being returned to the parent or'Indian custodian rrorn whose custody thechild was originally removed,

SEC. 107 Upon application by an Indianindividual who has reached the age of eight­een and who was the SUbject of an adoptiveplacement, the court which entered the finaldecree shall inform such Individual of thetribal affiliation, If any, of the individual'sbiological parents and provide such other in­formation as may be necessary to protect anyrights flowing from the Individual's tribalrelationship,

SEC 108 (a) Any Indian tribe which be ..came SUbject to State jurisdiction pursuantto the provisions of the Act of August 15,1953 (67 Stat 588), as amended by the Actof Aprl111, 1968 (82 Stat 79),01' pursuant toany other Federal law, may reassume jurts­diction over child custody proceedings, Be­fore any Indian tribe may reassume juns­diction over Indian child custody proceed­Ings, such tribe shall present to the Secretaryfor approval a petition to reassume such ju­risdictlon which Includes a suitable plan toexercise such jurisdiction

(b) (1) In considering the petition andreastbntty of the plan of a tribe under sub­section (a), the Secretary may consider,among other things:

(I) whether' or not the tribe maintains amembership roll or alternative provision forclearly identifying the persons who will beaffected by the reassumption of jurisdictionby the tribe;

(Il) the size of the reservation or formerreservation area which will be affected byretrocession and reassumptton of jurisdictionby the tribe;

(III) the population base of the tribe, ordistribution of the population on homoge..neous communities or geographic areas; and

(Iv) the feasibility of the plan In cases ofmultltribal occupation of a single reserva­tlonor geographic area

(2) In those cases where the secretarydetermines that the jurisdictional provisionsof section 101 (a) of this Act are not feasible,he Is authorized to accept partial retroces­sion which will enable tribes to exercise re ..rerral jurisdiction as provided in section101 (b) of this Act, or, where appropriate, willallow them to exercise exclusive Jurisdictionas provided in section 101 (a) over limitedcommunity or geographic areas without re­gard fOI' the reservation status of the areaaffected

(c) If the Secretary approves any petitionunder subsection (a), the Secretary shallpublish notice of such approval In the Fed­eral Register and shall notify the afl'ectedState or States of such approval. The Indiantribe concerned shall reassume jurisdictionsixty days after pubIlcatlon In the FederalRegister of notice of approval. If the Secre-

tary disapproves any petition under subsec­tion (a), the Secretary shall provide suchtechnical assistance as may be necessary toenable the tribe to correct any deficiencywhich the Secretary identified as a cause fordisapproval

(d) Assumption of jurisdiction under thissection shall not affect any action or pro­ceeding over which a court has already as­sumed jurisdiction, except as may be pro"vided pursuant to any agreement undersection 109 of this Act

SEC. 109 (a) States and Indian tribes areauthorized to enter into agreements Witheach other respecting care and custody ofIndian chtldr en and jurisdiction over childcustody proceedings, Including agreementswhich may provide for orderly transfer orjurisdiction on a case-by..case basis andagreements which provlde for concurrentjurisdiction between States and Indian tribes

(b) Such agreements may be revoked byeither party upon one hundred and eightydays' written notice to the other party. Suchrevocation shall not affect any action or'proceeding over which a court has alreadyassumed jurisdiction, unless the agreementprovides otherwise

SEC 110 Where any petitioner in an Indianchild custody proceeding before a State courthas improperly removed the child from cus­tody of the parent or Indian custodian or hasImproperly retained custOdy after a visit orother' temporary relinquishment of custody,the court shall decline jurisdiction over suchpetition and shall forthwith return the chlldto his parent OI' Indian custodian unless re ..turning the child to his parent or custodianwould subject the child to a substantial andimmediate danger or threat of such danger ..

SEC 111 In any case where State or Federallaw applicable to a child custody proceedingunder State or Federal law provides a higherstandard of protection to the rights of theparent or Indian custodian of an Indian childthan the rights provided under this title, theState or F'ederad court shall apply the Stateor Federal standard,

SEC. 112 Nothing In this title shall be con­strued to prevent the emergency removal ofan Indian child from his parent or Indiancustodian or the emergency placement ofsuch child in a foster home or Institution,under applicable State law, In order to pre­vent imminent physical damage or harm tothe child The State authority, official, oragency Involved shall insure that the erner­gency rernovat or placement continues onlyfor a reasonable time and shall expeditiouslyInitiate a child custody proceeding subjectto the provisions of this title, transfer thechild to the jurisdiction of the appropriateIndian tribe, or restore the child to the parentor Indian custodian, as may be appropriate

SEC. 113 None of the provisions of this title,except section 101 (a), shall affect a proceed­Ing under State law for foster' care placement;termination of parentlal rights, preadoptlveplacement, or adoptive placement which wasInitiated or completed prior to the enactmentof this Act, but shall apply to any SUbsequentproceeding in the same matter or subsequentproceedings affecting the custody or place­ment of the same childTITLE II-INDIAN CIDLD AND FAMILY

PROGRAMSSEC 201 (a) The Secretary is authorized to

make grants to Indian tribes and organtza..tions in the establishment and operatron ofIndian child and family service programs onor near' reservations and in the preparationand implementation of child welfare codes.The objective of every Indian child and fam­ily service program shall be to prevent thebreakup of Indian famllles and, in particularto insure that the permanent removal of anIndian child from the custody of his parentor Indian custodian shall be a last resort,Such child and family service programs mayInclude, but are not limited to-

CONGRESSIONAL RECORD - HOUSE38106(1) a system for licensing or otherwise reg­

ulating Indian foster and adoptive homes;(2) the construction, operation, and main­

tenance of faclIities for the counseling andtreatment of Indian famlIies and for thetemporary custody of Indian chlldren;

(3) famlly assistance, including homemak­er and home counselors, day care, afterschoolcare, and employment, recreational activities,and respite care;

(4) home improvement programs;(5) the employment of professional and

other trained personnel to assist the tIlbalcourt in the disposition of domestic rela­tions and chlld welfare matters;

(6) education and training of' Indians, in­cluding tribal court judges and staff, in skillsrelating to chlld and famlly assistance andservice programs;

(7) a subsidy program under which In­dian adoptive chndren are provided the samesupport as Indian foster chlldren; and

(8) guidance, legal representation, and ad­vice to Indian families involved in tribal,State, or Fedeml chlld custody proceedings"

(b) Funds appropriated for use by the Sec­retary in accordance with this section maybe utlI!zed as non-nederat matching sharein connectiqn with funds provided undertitles IV-B and XX Of the Social SecurityAct or under any other Federal financial as­sistance programs which contribute to thepurpose for which such funds are authorizedto be approprtated for use under this ActThe provision or possibility of assistance un­der this Act shall not be a basis for the de­nial or reduction Of any assistance other­wise authorized under titles IV-B and XXof the Social Security Act or any other fed­erally assisted program, For purposes ofqualifying for assistance under a federallyassisted program, llcensing or approval ofroster or adoptive homes or institutions byan Indian tribe shall be deemed equivalentto llcensing or approval by a state

SEC, 202. The Secr et.ary is also authorizedto make grants to Indian organizations toestabl!sh and operate off-r'eservatton Indianchlld and famlly service programs which mayinclude, but are not limited to->

(1) a system for regulattng, maintaining,and supporting Indian foster and adoptivehomes, including a subsidy program under'which Indian adoptive chtldrcn are providedthe same support as Indian foster children;

(2) the construction, operation, and main­tenance of facllities and services for counsel­ing and treatment of Indian families and In­dian foster and adoptive children;

(3) famlly assistance, including home­maker and home counselors, day care,afterschool care, and employment, recrea­tional acttvtttes, and respite care; and

(4) guidance, legal representation, andadvice to Indian famlIies involved in chlldcustody proceedings

SEC, 203. (a) In the establtshmerrt, oper­ation, and funding of Indian chlld andfamlly service programs, both on and offreservation, the Secretary may enter intoagreements with the Secretary of Health,Education, and Welfare, and the latterSecretary is hereby authorized for such pur­poses to use funds appropriated for simllarprograms of the Departrnerit of Health, Edu·,cation, and Welfare: Provided, That au­thority to make payments pursuant to suchagreements shall be effective only to theextent and in such amounts as may beprovided in advance by appropriation Acts

(b) Funds for the purposes of this Actmay be approprtated pursuant to the provi­sions of the Act of November 2, 1921 (42Stat, 208) , as amended

SEC. 204" For the purposes of sections 202and 203 of this title, the term "Indian"shall Include persons defined in section 4(c) of the Indian Health Care Improve­ment Act of 1976 (90 Stat" 1400, 1401)

TITLE III-RECORDKEEPING, INFORMA­TION AVAILABILITY, AND TIMETABLESSEC, 30L (a) Any State court entering a

final decree or order in any Indian chlldadoptive placement after the date of enact­ment of this Act shall provide the Secretarywith a copy Of such decree Or order togetherwith such other tnrormatton as may benecessary to show-s-

(1) the name and tribal affil1ation of thechlld;

(2) the names and addresses of thebiological parents;

(3) the names and addresses Of the adop­tive parents; and

(4) the identity of any agency havingfiles OI' information relating to such adop­tive ptacemene.Where the COUI't records contain and affidavitof the biOlogical parents or parents thattheir identity remain confidential, theCOUI't shall include such affidavit with theother tnrormation The Secretary shall in­sure that the confidentiality of such in­formation is maintained and such informa­tion shall not be SUbject to the Freedomof Iriformatton Act (80 Stat" 381)

(b) Upon the request of the adopted Indianchild over the age of eighteen, the adoptiveor foster parents of an Indian chlId, or anIndian tr!be, the Secretary shall disclose suchinformation as may be necessary ror theenrollment of an Indian chlId in the tribe inwhich the chlld may be ellgible for enron­ment or for determining any rlghts or bene­fits associated with that membership" Wherethe documents relating to such chlld containan affidavit rrom the biological parent 01

parents requesting anonymity, the Secretaryshall certify to the Indian chlld's tribe,where the information warrants, that thechlId's parentage and other clIcumstances ofbirth entitle the chlld to erirollmerrt underthe criteria established by such tribe

SEC 302. (a) (1) Within six months fromthe date of this Act, the Secretary shall con­sult with Indian tribes, Indian organizations,and Indian interest gI'OUpS in the considera­tion and formulation of rules and regula­tions to implement the provisions of thisAct,

(2) Within seven months from the dateof this Act, the Secretary shall present theproposed rules and regutattons to the SelectCommittee on Indian Affairs of the UnitedStates Senate and the Committee on Interiorand Insular Affairs of the United StatesHouse of Representatives

(3) Within eight months from the date ofthis Act, the Secretary shall publish pro­posed rules and regulations in the FederalRegister for the purpose of receiving com­ments from interested par ties

(4) Within ten months from the date ofthis Act, the Secretary shall promulgate ruiesand regulations to implement the provisrorisof this Act

(b) The Secretary is authorized to reviseand amend any r-ules and regulattons promul­gated pursuant to this section: Provided,That prior to any revtstons 01 amendmentsto such rules and reguiattons, the Secretaryshall present the proposed revision OI' amend­ment to the Select Committee on IndianAffairs of the United States Senate and theCommittee on I'n terior and Irisular Affairs ofthe United States House of Representativesand shalt, to the extent practicable, consultwith tribes, organizations, and groups spec­ified in subsection (b) (1) of this section,and shall publish any proposed revisions oramendments in the Federal Register not lessthan sixty days prior to the effective dateof such rules and regulations in order to pro­vide adequate notice to, and to receive com­ments f'rom, other i rrterested parties

TITLE IV-PLACEMENT PREVENTIONSTUDY

SEC, 401 (a) It is the sense of Congressthat the absence of locally convenient day

October 14, 1978schools may contribute to the breakup ofIndian farollles

(b) The Secretary is aut.horlzed and di­rected to prepare in consuitatton with ap­proprtate agencies in the Department ofHealth, Education, and Welfare, a report onthe feasibility of providing Indian childrenwith schools located near their homes, and tosubmit such report to the Select Committeeon Indian Affairs of the United States Senateand the Committee on Interior and InsularArratrs of the United States House of Repre­sentatives within two years from the date ofthis Act In developing this report the Sec­retary shall give pal ticular consideration tothe provislons of educational facilities fOI'children in the elementary glades

SEC. 402 Within sixty days after enact­ment of this Act, the SecretaI'Y shall send tothe Governor, chief justice of the highestcourt of appeal, and the attorney general ofeach State a copy of this Act, together withcommittee reports and an explanation of theprovisions of this Act

SEC 403 If any provision of' this Act OI'the applicablllty thereof is held invalid, theremaining provisions of this Act shall not beaffected thereby,TECHNICAL AMENDMENTS OFFERED BY MR UDALL

Mr.. UDALL Mr.. Chairman, I offer cer­tain technical amendments to title I, andask unanimous consent that they be con­sidered en bloc,

The CHAIRMAN. Is there objectionto the request of the gentleman fromArizona?

There was no objection.The Clerk read as follows:Amendments offered by Mr UDALL: On

page 31, in !lne 12, strike the period after theword "tribe" and Insert, in lieu tnereor, acomma,

On page 37, in Hne 3, strike the word"paragraph" and insert, in lieu thereof, theword "subsection",

On page 37, in line 23, strike the word"or" where it appears the first time andinsert, in lieu thereof, the word "a",

On page 38, in line 20, insert the phrase"title IV of" after the word "by" and, in line21, strike the phrase "(82 Stat 79)" andinsert, in lieu thereor, the phrase" (82 Stat73,78) ".

On page 39, in line 15, strike the word "on"and insert, in lieu thereof, the word "in"

Mt UDALL (during the reading) .. Mr.Chairman, I ask unanimous consent thatthe amendments en bloc be considered asread and printed in the RECORD,

The CHAIRMAN Is there objectionto the request of the gentleman fromArizona?

There was no objection,Mr. UDALL, Mr .. Chairman, they are

purely technical amendments They havebeen cleared with the other side. I do notbelieve there is any controversy,

The CHAIRMAN. The question is onthe amendments offered by the gentle­man from Arizona (Mr" UDALL).

The amendments were agreed to.AMENDMENTS OFFERED BY MR. UDALL

Mr. UDALL Mr. Chairman, I offertechnical amendments to title III,

The Clerk read as follows: On page 46, inlines 20 and 21, strike the phrase "(80 Stat,381)" and insert, in lieu thereof, the phrase"(5 USC. 552), as amended".

On page 48, in line 13, strike the phrase"subsection (b) (1)" and insert, in lieuthereof, the phrase "SUbsection (a) (1) ".

Mr UDALL (during the reading) .. MrChairman, I ask unanimous consent thatthese technical amendments be consid­ered as read, printed in the RECORD, andconsidered en bloc.

Ociober Li., 1978 CONGRESSIONAL RECORD - HOUSE 38107The CHAIRMAN. Is there objection

to the request of the gentleman fromArizona?

There was no objectionMr. UDALL. Mr Chairman, I know of

no controversy surrounding the amend­ments. I ask for their adoption

The CHAffiMAN. The question is onthe amendments offered by the gentle­man from Arizona (Mr UDALL)

The amendments were agreed to ..AMENDMENT OFFERED BY MR. UDALL

Mr. UDALL, Mr .. Chairman, I offer anamendment to title IV.

The Clerk read as tollows:Amendment offered by Mr UDALL: On page

48, in line 19, strike the phrase "PLACE-,MENT PREVENTION STUDY" and insert, inlieu thereof, the word 'MISCELLANEOUS"

On page 49, in line 7, strike the word "pre­visions" and insert, in lieu thereof, the word"provision".

Mr. UDALL (during the reading) MrChairman, I ask unanimous consent todispense with further reading of the titleIV amendment and that it be printedin the RECORD.

The CHAIRMAN., Is there objectionto the request of the gentleman fromArizona?

There was no objectionMr. UDALL .. Mr. Chairman, these are

entirely technical in natureI ask for their adoption ..The CHAIRMAN.. The question is on

the amendment offered by the gentlemanfrom Arizona (Mr. UDALL)

The amendment was agreed to ..AMENDMENT OFFERED BY MR. UDALL

Mr., UDALL. Mr, Chairman, I offerthree further amendments and askunanimous consent that they be consid­ered en bloc.

The CHAIRMAN Is there objection tothe request of the gentleman from Ari­zona?

There was no objection.The Clerk read as follows:Amendments offered by Mr UDALL: On

page 41. in line 22, Insert a comma after theword "child" and the phrase "who Is a resi­dent of or is domiciled on a reservation, buttemporarily located off the reservation, " ..

On page 43, in line 6, strike the phrase"the construction, operation, and mainte­nance" and insert, In lieu thereor, the phrase"the operation and maintenance" and, onpage 44, In line 24, strike the phrase "theconstruction, operation, and maintenance of"and Insert, In lieu thereof, the phrase "theoperation and maintenance of"

On pages 47 and 48, strike all of section3C2 and insert, in lieu thereof, the following:

"SEC.. 302. Within 180 days after the en­actment of this Act, the Secretary shallpromulgate such rules and regulations asmay be necessary to carry out the provlstonsof this Act"

Mr. UDALL (during the reading), MrChairman, I ask unanimous consent todispense with further reading of theseamendments en bloc and that they beprinted in the RECORD.

The CHAIRMAN. Is there objection tothe request of the gentleman from Ari­zona?

There was no objectionMr. UDALL. Mr .. Chairman, where an

Indian child is residing or domiciled offan Indian reservation the State has fuIIjurisdiction over the child in a custody

proceeding, including the power to re­move the child from the parents on anemergency basis to protect the child

Where the child is residing or domi­ciled on the reservation, there was somequestion about the power of the State tomake an emergency removal and place­ment of such child who is temporarilywithin the State's jurisdiction Section112 was adopted by the committee tomake it clear that the State would havethat power

However, the committee did not intendthat the state could invade the jurisdic­tion of the tribe by going onto the reser-·vation to make such an emergency re­moval, My amendment simply makes thisclear.

Title II authorizes the Secretary tomake grants to fund Indian child andfamily programs both on and off thereservation, Tribes and Indian organiza­tions are authorized to use such funds toconstruct facilities to house the opera­tion of these programs

CBO estimated the cost of this bilI at$125,000,000 spread over a 5-fiscal-yearperiod Approximately $80,000,000of thatestimate grows out of construction au­thorizations and assumptions about costof construction of family centers andnumber constructed. While the commit­tee disagreed with CBO's estimates andassumption, the construction authoritywould undoubtedly be considerable

My amendment deletes aII languagefrom title II relating to construction au­thority First, such authority might al­ready exist under existing law and, sec­ond, most tribes and tribal organizationswould find existing structures to housetheir family assistance programs

Based upon CBO's estimates, myamendment would save $80,000,000 andresult in a cost of the biII of approxi­mately $44,000,000 over 5 fiscal years orabout $9,000,000 per year,

Section 302, as reported, imposes tighttime schedules and consulting requirev ,ments on the Secretary of the Interior inpromulgating regulations implementingthe legislation These include consultingwith pertinent congressional committeesand with relevant Indian organizationsThe Department of the Interior, in itsreport on the bill, objected to some pro­visions of this section

The consulting and time requirementsare burdensome and unnecessary, Myamendment would simply require theSecretary to promulgate necessary regu­lations within 6 months of the act, How­ever, I think that it should be clear thatit is the intent of Congress that the Sec­retary consult fully with Indian tribesand organizations in drafting such rulesand regulations

While the committee disagreed withthis estimate, the construction authorityundoubtedly would be considerable,therefore I am deleting all language fromtitle II relating to construction author­ity and, based on the estimates, myamendment would cut the cost by $80million and make the estimated cost $44miIIion over 5 fiscal years at $9 miIlion ayear

Mr LAGOMARSINO,. Mr., Chairman,the minority side has no objection tothe amendments and will accept them

The CHAIRMAN. The question is onthe amendments offered by the gentle­man from Arizona (Mr UDALL)

The amendments were agreed to,AMENDMENr OFFERED BY MR. LAGOMARSINO

Mr,. LAGOMARSINO. Mr, Chairman,I offer an amendment,

The Clerk read as ronows:Amendment offered by Mr LAGOMARsrNo:On page 27, beginning on line 2, strike the

comma after the WOld "nation" and deletethe phrase "in fulfillment of its special re­sponslbillty and legal obligations to theAmerican Indian people,"

Mr LAGOMARSINO (during the read­ing) Mr .. Chairman, I ask unanimousconsent that further reading of theamendment be dispensed with and thatit be printed in the RECORD

The CHAIRMAN, Is there objection tothe request of the gentleman from Cali­fornia?

There was no objection,Mr .. LAGOMARSINO Mr .. Chairman,

section 3 of H.E.. 12533 declares the pol­icy of the United States to protect thebest interests of Indian children "in ful­fiIlment of its special responsibility andlegal obligations to the American Indianpeople," The Department of Justice hasexpressed fear that this language may beused by a court to hold the United Statesliable for the financial support of Indianfamilies far in excess of the provisions oftitle II of the bill, regardless of whetherCongress has appropriated money forsuch purpose Justice's concern stemsfrom a Federal District Court ruling inthe case of White against Califano hold­ing that similar language in other legis­lation obligated the Federal Governmentto make support payments for Indiansfor mental health purposes,

This amendment would strike thephrase which Justice finds objectionable;however, I would emphasize that in sodoing it would not in any way changethe overaIl intent of the declaration ofpolicy,

Mr. UDALL Mr. Speaker, wiII the gen­tleman yield?

Mr.. LAGOMARSINO. I yield to thegentleman from Arizona.

Mr. UDALL. Mr.. Speaker, the amend­ment the gentleman offers has been pre­pared by the gentleman from Colorado(Mr JOHNSON), our distinguished minor­ity counterpart. We have discussed theamendment. I think it is a good amend­ment and I am prepared to accept theamendment as weIl as the remaining sixamendments the gentleman from Cali­fornia is preparing to offer on behalf ofthe gentleman from Colorado (MrJOHNSON) .

Mr .. LAGOMARSINO .. I thank the gen­tleman.

The CHAIRMAN. The question is onthe amendment offered by the gentle­man from California (Mr .. LAGOMARSINO)

The amendment was agreed toAl\IENDMENTS OFFERED BY MR LAGOMARSINO

Mr .. LAGOMARSINO. Mr., Chairman,I offer the six remaining amendmentsand ask unanimous consent that theymay be considered en bloc

The CHAIRMAN Is there objection tothe request of the gentleman from Cali­fornia?

October 1.4, 1978

180 days the effective date of the bilI,except for three sections The delaywould also allow the States, the InteriorDepartment and other parties time tofamiliarize themselves with the act'sprovisions..

The sections excepted by this amend­ment are: First, section 10Ua), whichstates existing law with respect to tribaljurisdiction; second, section 108, whichauthorizes retrocession of child custodyjurisdiction to tribes under certain cir-cumstances; and, third, section 108,which authorizes tribes and States to en­ter into agreements with each other re­specting care and custody of Indian chil­dren and jurisdiction over child custodyproceedings

Mr. Chairman, with reference to thelast amendment in this series, let me statethat title II of H.R. 12533 authorizes theSecretary of the Interior to make grantsto Indian tribes to establish family serv­ice and maintenance programs. Grantscould be used for a variety of purposes,including establishment of adoption sub­sidy programs under which Indian chil­dren could be provided the same supportas foster children. These subsidies wouldenable foster care families in particularand Indian families in general to adoptchildren where they might otherwise notbe financially able to do so.

Concern has been expressed that thelanguage in sections 201(a) (7) and 202 isunclear as to the limits intended for suchprograms My amendment provides thatthe level of adoptive subsidies would becomparable to that for which they wouldbe eligible as foster children, taking intoaccount the appropriate State standardsof support for maintenace and medicalneeds,. Thirty-five States and the District of

Columbia now provide adoption subsidies,particularly for hard-to-place childrenand/or children who are already in fostercare. Subsidies are usually limited to theamounts provided for foster care

The record of State programs hasshown that not only have adoption sub­sidies enabled many more children togrow up in family environments, but alsothat they have been able to do so at a costfar below that which would be requiredto maintain them in institutional careSimilar results could be expected fromtribal programs,

I would like to ask the chairman of thecommittee if he agrees with my under­standing that it is the committee'sintent that neither the languageof the bill nor any regulations pro­mulgated by the Interior Departmentshall be construed as establishing any en­titlement to an adoption subsidy and,further, that it is not intended that anyadoption subsidies be provided where theadoptive family's economic conditionsclearly do not warrant it.

These are also amendments that havebeen prepared by the minority rankingmember, the gentleman from Colorado(Mr .. JOHNSON), They have been clearedwith the majority and I would hope thatthe Committee would accept theseamendments,

Mr. UDALL. Mr.. Chairman, will thegentleman yield?

Mr LAGOMARSINO.. I yield to thegentleman from Arizona,

CONGRESSIONAL RECORD- HOUSE38108There was no obi ection.The Clerk read as follows:Amendments offered by Mr. LAGOMARSINO:

On page 27, line 19. after "institution" in­sert "or the home of a guardian or conser­vator."

On page 28 on line 22 strike the semicolonafter the word "tribe" and add the following:"or who is an Alaska Native and a memberof a Regional Corporation as defined inSection 7 of the Alaska Native Claims Settle­ment Act (85 Stat 688,689):"

On page 30. in line 7, strike the per·iodafter the word "Code", the phrase "In any",and all of lines 8 tnrougn 13 and insert, inlieu thereof, the following: "and any lands,not covered under such section, title to whichis either held by the United States in trustfor the benefit of any Indian tribe or individ­ual or held by any Indian tribe or individualsubject to a restriction by the United Statesagainst alienation",

On page 42, line 3, delete, "continues onlyfor a reasonable period of time" and insertin lieu thereof "terminates immediately whensuch removal or placement is no longer nec­essary to prevent imminent physical damageor harm to the child"

On page 42, in line 9 add an "s" to theword "section" and insert after "101 (a)" thephrase "108, and 109," and. in line 12. afterthe word "to", insert the phrase "one hun­dred and eighty days after".

On page 43, strike all of lines 20 through22 and insert in lieu thereof the following:

"(7) a subsidy program under which In­dian adoptive children may be provided sup­port comparable to that for which theywould be eligible as foster children, takinginto account the appropriate state standardsof support for maintenance and medicalneeds; and" On page 44, strike all of line23 and inser t in lieu thereof the following:"may be provided support comparable to thatfor which they would be eligible as Indianfoster' children. taking into account the ap­propriate state standards of support formaintenance and medical needs;"

state that under the definition of anIndian in paragraph 3 of section 4 ofHE 12533, Alaskan Natives who are at­large members of Native Regional Cor­porations or who are members of the13th Regional Corporation for non­resident Alaskan Natives may be ex­cluded from the protections of thisact, Such exclusion would be unin­tentional on the committee's part and myamendment would make certain it wouldnot occur

This amendment does not alter the in­clusion in the definition of the termIndian those Alaska Natives who aremembers of Alaska Native villages, More",over, it does confer tribal status on theRegional Corporations

Mr. Chairman, with reference to thethird amendment in this series, para­graph 10 of section 4 of this bill definesthe term "reservation" and includes lan­guage which would have the effect of re­establishing the diminished or disestab­lished boundaries of at least two res­ervations solely for the purpose of tribaljurisdiction over Indian child place­ments. The Department of Justice hasexpressed concern over constitutionaland other problems which may resultfrom the extension of jurisdiction in thismanner,

While I do not agree that the existingprovision raises constitutional problems,I believe the definition should be clari­fied, Therefore, my amendment strikesthe sentence that Justice objects to andadds language providing for tribal ju­risdiction within diminished reserva­tions to extend only over lands held intrust or subject to a restriction againstalienation by the United States for thebenefit of an Indian tribe or individual

Mr. Chairman, in explanation of theMr. LAGOMARSINO (during the fourth amendment, section 112 of HR.

reading)" Mr. Chairman, I ask unani- 12533 states that nothing in title I ofmous consent that the amendments be the bilI shall preclude state authoritiesconsidered as read and printed in the from temporarily removing an IndianRECORD" child from his parent or custodian when

The CHAIRMAN Is there objection to .. they are off reservation in order to pre­the request of the gentleman from Cali- vent imminent physical damage or harmfomia? to the child, It provides that such emer-

There was no objection, gency removals shall continue "only forMr. LAGOMARSINO, Mr. Chairman, a reasonable time," after which the

the first amendment in this series is State must either initiate formal custodyintended to correct an oversight in the proceedings Or restore the child to hisdefinition of the term "foster care place- family,merit." Because what is "reasonable" is open

As reported, the bill defines foster to wide-ranging interpretation andcare placement as any action removing abuse, this amendment clarifies the in­an Indian child from its parent or Indian tent of the section by requiring an emer­custodian for temporary placement in a gency placement to terminate when thefoster home or institution where the par- reason for it no longer exists, specifi­ent or custodian cannot have the child cally, when it is no longer necessary forreturned upon demand, but where the prevention of imminent physicalparental rights have not been terrni- harm to the child"nated Mr. Chairman, in explanation of the

In several States, temporary child fifth amendment, section 113 of H R.placements are made to a guardian or 12533 provides for the procedural andconservator rather than to a foster care evidentiary requirements for State courthome or institution. Although the termi- proceedings under title I to take effectnology used is different, the proceedings immediately upon enactment This pro­are essentially the same, My amendment vision creates the likelihood that manymerely provides that State proceedings child custody proceedings involving Iri­for Indian child placement to tempo- dian children, either in progress or aboutrary guardians and conservators are in- to begin, wiII be subject to litigation andeluded under the appropriate provisions invalidation for violating the provisionsof this act, of this act

Mr. Chairman, in explanation of the My amendment is simply intended tosecond amendment in this series, let me avoid such disruptions by delaying for

i'(!,jt(

i~:

October ti, 1978 CONGRESSIONAL RECORD - HOUSE 38109Alaska Native Claims Settlement Act (B5Stat. 6B8, 689);

(4) "Indian child" means any unmarriedperson who is under age eighteen and iseither (a) a member of an Indian t.ribe or(b) is eligible for membership in an Indiantribe and is the biological child of a memberof an Indian tribe;

(5) "Indian child's tribe" means (a) theIndian tribe in which an Indian child is amember or eligible for membership or (b), inthe case of an Indian child who is a memberof or eligible for membership in more thanone tribe, the Indian tribe with which theIndian child has the more significant con..tacts;

(6) "Indian custodian" means any Indianperson who has legal custody of an Indianchild under tribal law or custom or underState law or' to whom temporary physicalcare, custody, and control has been trans­ferred by the parent of such child;

(7) "Indian organization" means anygroup, association, partnership, corporation,or other legal entity owned or controlled byIndians, or a majority of whose members areIndians;

(8) "Indian tribe" means any Indian tribe,band, nation, or other organized group orcommunity of Indians recognized as eligiblefor the services provided to Indians by theSecretary because of their status as Indians,including any Alaska Native village as definedin section 3(c) of the Alaska Native Claimssettlement Act (85 Stat, 688, 689), asamended;

(9) "parent" means any biological parentor parents of an Indian child or any Indianperson who has lawfully adopted an Indianchild, including adoptions under tribal lawor custom, It does not include the unwedfather where paternity has not been acknowl­edged or established;

(10) "reservation" means Indian countryas defined in section 1151 of title 18, UnitedStates Code and any lands, not covered un­der such section, title to which is either heldby the United States in trust for the benefitof any Indian tribe or individual or held byany Indian tribe or Individual subject to arestriction by the United States againstalienation;

(11) "secretary" means the secretary otthe Interim; and

(12) "tribal court" means a court withjurisdiction over child custody proceedingsand which is either a Court of Indian Of­fenses, a court established and operated un­der the code or custom of an Indian tribe, orany other administrative body of a tribewhich is vested with authority over childcustody proceedings

TITLE I-CHILD CUSTODY PROCEEDINGSSEC 101, (a) An Indian tribe shall have

jurisdiction exclusive as to any State overany child custody proceeding involving anIndian child who resides or is domicned with­in the reservation of such tribe, except wheresuch jurtsdtct.ion is otherwise vested in theState by existtrig Federal law" Where an In­dian cWld is a ward of a tribal court, theIndian tribe shall retain exclusive jurisdic­tion, notwithstanding the residence or domi­cile of the child

(b) In any State court proceeding for thefoster care placement at, or termination ofparental rights to, an Indian child not domi..ciled or' residing within the reservation atthe Indian child's tribe, the court, in the ab ..sence of good cause to the contrary, shaHtransrer such proceeding to the jurtsdlotlonof the tribe, absent objection by either par­ent, upon the petition of either parent orthe Indian custodian or the Indian child'stribe: Proiruieti, That such transrer shall besubject to declination by the tribal courtof such tribe

(c) In any State court proceeding for thefoster care placement of, or termination of

"The Congress shall have Power • • • Toregulate Commerce' •• with Indian trtbes"and. through this and other constitutionalauthority, Congress has plenary power overIndian affairs;

(2) that Congress, through statutes trea­ties, and the general course of dealing withIndian tribes, has assumed the responsibilityfor the protection and preservation of In­dian tribes and their resources;

(3) that there is no resource that is morevital to the continued existence and integ..rity of Indian tribes than their children andthat the United States has a direct interest,as trustee, in protecting Indian children whoare members of or' are eligible for member­ship in an Indian tribe;

(4) that an alarmingly high percentage ofIndian families are broken up by the re­moval, often unwarranted, of their childrenfrom them by nontribat public and privateagencies and that an alarrnlrigly high per­centage of such children are placed in non­Indian foster and adoptive homes and insti­tutions; and

(5) that the States, exercising their recog­nized jurisdiction over Indian child custodyproceedings through administrative andjudicial bodies, have often failed to recognizethe essential tribal relations of Indian peo­ple and the CUltural and social standardsprevailing in Indian communities and fami­lies

SEC 3 The Congress hereby declares thatit is the policy of this Nation to protect thebest interests of Indian children and to pro­mote the stabllity and security of Indiantribes and families by the establishment ofminimum Federai standards for the removalof Indian children from their families andthe placement of such children in foster oradoptive homes which will reflect the uniquevalues of Indian culture, and by providingfor assistance to Indian tribes in the opera­tion of child and family service programs

SEC 4, For the purposes of this Act. exceptas may be specifically provided otherwise,the term-

(1) "child custody proceeding" shall meanand Inctude-s-

(i) "foster care placement" which shallmean any action removing an Indian childfrom its parent or Indian custodian for; tern ..porary 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 upondemand, but where parental rights have notbeen terminated;

(ii) "termination of parental rights"which shall mean any action resulting in thetermination of the parent-child relationship;

(iii) "preadoptive placement" which shallmean the temporary placement of an Indianchild in a foster home or institution afterthe termination of parental rights, but prrorto or in iieu of adoptive piacement; and

(iv) "adoptive placement" which shallmean the permanent placement of an Indianchild for adoption, including any action r'e­suiting in a final decree of adoptionSuch term or' terms shall not include a place­ment based upon an act which, if committedby an adult, would be deemed a crime or uponan award, in a divorce proceeding, of custodyto one of the parents

(2) "extended family member" shall be asdefined by the law or custom of the Indianchild's tribe or, in the absence of such lawor' custom, shall be a person who has reachedthe age of eighteen and who is the Indianchild's grandparent, aunt or uncle, brotheror sister', brotner-In-Iaw or stster-In-Iaw,niece or nephew, first or second cousin, orstepparent;

(3) "Indian" means any person who is amember' of an Indian tribe. or who is anAlaska Native and a member of a RegionalCorporation as defined in section 7 of the

Mr UDALL, Mr Chairman, let me saythat these amendments have indeedbeen cleared and they are satisfactory tome.

Mr LAGOMARSINO I thank the gen­tleman

The CHAIRMAN. The question is onthe amendments offered by the gentle­man from California (Mr. LAGOMARSINO)

The amendments were agreed toThe CHAIRMAN The question is on

the committee amendment in the natureof a substitute, as amended

The committee amendment in the na­ture of a substitute, as amended, wasagreed to.

The SPEAKER Under the rule, theCommittee rises

Accordingly the Committee rose; andthe Speaker having resumed the chair,Mr. GEPHARDT, Chairman of the Com­mittee of the Whole House on the Stateof the Union, reported that that Com­mittee, having had under considerationthe bill (HE 12533) to establish stand­ards for the placement of Indian chil­ren in foster or adoptive homes, to pre­vent the breakup of Indian families, andfor other purposes, pursuant to HouseResolution 1374, he reported the bill backto the House with an amendment adopt­ed by the Committee of the Whole

The SPEAKER. Under the rule, theprevious question is ordered,

Is a separate vote demanded on anyamendment to the committee amend­ment in the nature of a substituteadopted by the Committee of the Whole?If not, the question is on the amendment

The amendment was agreed to ..The bill was ordered to be engrossed

and read a third time, was read the thirdtime, and passed, and a motion to recon­sider was laid on the table

The SPEAKER Pursuant to the pro­visions of House Resolution 1374, theCommittee on Interior and Insular Af­fairs is discharged from further con­sideration of the Senate bill (S, 1214)to establish standards for the placementof Indian children in foster or adoptivehomes, to prevent the breakup of In..dian families, and for other purposes.

The Clerk read the title of the Senatebill.

MOTION OFFERED BY MR UDALL

Mr. UDALL, Mr. Speaker, I offer amotion.

The Clerk read as follows:Mr. UDALL moves to strike out all after

the enacting clause of the Senate bl1l S,1214 and to insert in !leu thereof the pro­visions of HR, 12533, as passed by theHouse, as follows:

HOUSE AMENDMENTS TO SENATE BILLSS, 1214

Amendment otI'ered by Mr. UDALL: Strikeout all after' the enacting clause of S" 1214and insert in lieu thereof the provtsions con­tained in HR 12533 as passed by the HouseThat this Act may be cited as the "IndianChild Welfare Act of 1978",

SEC, 2, Recognizing the special relationshipbetween the United States and the Indiantribes and their' members and the Federal re­Sponsibility to Indian people, the Congressfinds--

(1) that clause 3, section 8, article I of theUnited States Constitution provides that

38110 CONGRESSIONAL RECORD - HOUSE October 1/", 1978parental rights to, an rnaian cnnu, the In­dian custodian of the chlld and the Indianchild's tribe shall have a light to interveneat any point in the proceeding.

(d) The United States, every State, everyterritory 01' possession of the United States,and every Indian trlbe shall give full faithand credit to the publlc acts, records, andjudicial proceedings of any Indian tribe ap­pllcable to Indian child custody proceedingsto the same extent that such entities givefull faith and credit to the publlc acts, rec­ords, and judtctat proceedings of any otherentity.

SEC. 102. (a) In any involuntary proceed­ing in a State court, where the court knowsor has reason to know that an Indian childis involved, the party seeking the foster careplacement of, or termination of parentalrights to, an Indian child shall notify theparent or Indian custodian and the Indianchild's tribe, by regtstered mail with returnreceipt requested, of the pending proceed­ings and of their right of intervention Ifthe identity 01 location of the parent orIndian custodian and the tribe cannot bedetermined, such notice shall be given to theSecretary in llke manner, who shall havefifteen days after receipt to provide therequisite 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 daysafter receipt of notice by the parent or In­dian custodian and the tribe or the Secre­tary: Prtniitieti, That the parent 01' Indiancustodian or the tribe shall, upon request,be granted up to twenty additional days toprepare for such proceeding

(b) In any case in which the COUlt 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, inits discretion, appoint counsel for the childupon a finding that such appointment is inthe best interest of the child. Where Statelaw makes no provision for appointment ofcounsel in such proceedings, the court shallpromptly notify the Secretary upon ap­pointment of counsel, and the Secretary,upon certification of the presiding judge,shall pay reasonable fees and expenses outof funds which may be approprtated pur­suant to the Act of November 2, 1921 (42Stat, 208; 25 tr.s.c, 13)

(c) Each patty to a foster care placementor termination of parental rights proceedingunder State law involving an Indian childshall have the right to examine all reportsor other documents filed with the courtupon which any decision with respect tosuch action may be based

(d) Any party seeking to effect a fostercare placement of, or termination of parentalrights to, an Indian child under State lawshall satisfy the court that active effortshave been made to provide remedial servicesand rehabttrtative programs designed to pre­vent the breakup of the Indian family andthat these efforts have proved unsuccessful.

(e) No foster care placement may be or­dered in such proceeding in the absence of adetermination, supported by clear and con­vincing evidence, including testimony ofquallfied expert witnesses, that the contin­ued custody of the child by the parent orIndian custodian is likely to result in seriousemotional or physical damage to the child,

(f) No termination of parental rights maybe ordered in such proceeding in the absenceof a determination, supported by evidencebeyond a reasonable doubt, including testi­mony of quallfied expert witnesses, that thecontinued custody of the child by the par­ent or Indian custodian is likely to result inserious emotional or physical damage to thechlld,

SEC 103 (a) Where any parent or Indiancustodian vol untarlIy consents to a fostercare placement or to termination of pareri-

tal rights, such consent Shall not be vaneunless executed in writing and recorded be­fore a JUdge of a court of competent juris­diction and accompanied by the presidingjudge's certificate that the terms and conse­quences of the consent were fully explainedin detail and were fully understood by theparent or Indian custodian The court shailalso certify that either the parent or Indiancustodian fuily understood the explanationin English or that it was interpreted into alanguage that the parent 01' Indian custodianunderstood .. Any consent given prior to, orwithin ten days after, birth of the Indianchild shall not be valld

(b) Any parent or Indian custodian maywithdraw consent to a foster care placementunder State law at any time and, upon suchwithdrawal, the child shall be returned tothe parent or Indian custodtan.

(c) In any voluntary proceeding for ter­mination of parental rights to, or adoptiveplacement of, an Indian child, the consentof the parent may be withdrawn for anyreason at any time prior to the entry of afinal decree of termination or adoption, asthe case may be, and the chlId shall be re­turned to the parent

(d) After the entry of a final decree ofadoption of an Indian child in any Statecourt, the parent may withdraw consentthereto upon the grounds that consent wasobtained through fraud or duress and maypetition the court to vacate such decreeUpon a finding that such consent was ob­tained through fraud or duress, the courtshall vacate such decree and return the chlldto the parent No adoption which has beeneffective for at least two years may be in­valldated under the provisions of this sub­section unless otherwise permitted underState law.

SEC 104 Any Indian chlld who is the sub­ject of any action for foster care placementor termination of parental rights under Statelaw, any parent or' Indian custodian fromwhose custody such child was removed, andthe Indian chlld's trtbe may petition anycourt of competent jurisdiction to invall­date such action upon a showing that suchaction violated any provision of sections101. 102 and 103 of this Act,

SEC 105 (a) In any adoptive placement ofan Indian child under' State law, a prefer­ence shall be given, in the absence of goodcause to the contrary, to a placement with(1) a member of the chlld's extended ram­lIy; (2) other members of the Indian chlld'stribe; or (3) other Jndian famlIles

(b) Any chlld accepted for foster care ornreadopttve placement shall be placed in theleast restricttve setting which most approxi­mates a famlly and in which his specialneeds, if' any, may be met The child shallalso be placed within reasonable nroxlmttyto his 01' her home, taking into account anyspecial needs of the chlId .. In any foster careor preadoptive placement, a preference shallbe given. in the absence of g-ood cause to thecontrary, to a placement with-

(i) a member of the Indian chlld's ex­tended farrrilv:

(ll) a foster home llcensed, approved, orspecified by the Indian chlld's trlbe:

(ill) an Indian foster home llcensed orapproved bv an authorized non-Indian ll ..censing authority; 01'

(iv) an institution for children approvedby an Indian tribe or operated by an Indianorganization which has a program suitableto meet the Indian chl1d's needs

(C) In the case of a placement under sub­section (a) or (b) of this section, if theIndian chl1d's tribe shall establlsh a differ­ent order of preference by resolution, theagency or COUlt eftect.ing the placement shallfollow such order so long as the placementis the least restrictive setting appropriate tothe parttcutar needs of the chl1d, as providedin subsection (b) of this section .. Where ap­propriate, the preference of the Indian chl1d

or parent shall be consmered : Pmvided,That where a consenting parent evidencesa desire for anonymity, the COUI't or agencyshaIl give weight to such desire in applyingthe preferences,

(d) The standards to be applled in meet­ing the preference requirements of this sec­tion shall be the prevalling social and cul­tural standards of the Indian community inwhich the parent OI' extended famlly residesor with which the parent or extended fam­lly members maintain social and culturalties

(e) A record of each such placement, underState law, of an Indian chlld shaIl be main­tained by the State in which the placementwas made, e"idencing the efforts to complywith the order of preference specified in thissection Such record shall be made avallableat any time upon the request of the Secre..tary or the Indian child's tribe

SEC 106 (a) Notwithstanding State lawto the contrary, whenever a final decree ofadoption of an Indian chlld has been va­cated or set aside or the adoptive parentsvol urrtar ily consent to the termination oftheir parental rights to the chlld, a biologicalparent or prior Indian custodian may peti­tion for return of custody and the court shaHgrant such petition unless there is a show­ing, in a proceeding subject to the provisionsof section 102 of this Act, that such returnof custody is not in the best interests ofthe child,

(b) Whenever an Indian chlld is removedfrom a foster care home or institution !forthe purpose of rurther foster care, preadop­ttve, or adoptive placement, such placementshall be in accordance with the provisionsof this Act, except In the case where an In­dian chlld is being returned to the parent orIndian custodian from whose custody thechild was originaIly removed

SEC 107 Upon appllcation by an Indianindividual who has leached the age of eight­een and who was the subject of an adop­tive placement, the court which entered thefinal decree shall inform such individual ofthe trIbal affillation, if any, of the Indlvld­ual's biological parents and provide suchother' information as may be necessary toprotect any rights flowing fmm the indi­vidual's tribal relationship,

SEC, 108 (a) Any Indian tribe which be­came subject to State jurisdiction pursuantto the provisions of the Act of August 15,1953 (67 Stat 588), as amended by title IVof the Act of Aprl! 11, 1968 (82 Stat 73,78), or pursuant to any other Federal law,may reassume [urtsdtct.ion over chlld cus­tody proceedings. Before any Indian tribemay reassume jurisdiction over Indian chl1dcustody proceedings, such tribe shalt presentto the Secretary for approval a petition toreassume such jurisdiction which includesa suitable plan to exercise such jurtsdtctton,

(b) (1) In considering the petition andfeasiblIlty of the plan of a tribe under sub­section (a), the Secretary may consider,among other things:

(I) whether or not the tribe maintains amembership roll OI' alternative provision forclearly identifying the persons who wlll beaffected by the reassumption of jurisdictionby the tribe;

(ii) the size of the reservation or formerreservation ar ea which wlll be affected byretrocession and reassumptron of [urtsdtc­tion by the tribe;

(lli) the population base of the tribe, ordistribution of the populatton in homogene­ous communities OI' geographic areas; and

(Iv ) the feasiblIlty of the plan in cases ofmultitribal occupation of a single reserva­tion OI' geographic area

(2) In those cases where the Secretarydetermines that the jurisdictional provisionsof section 101 (a) of this Act are not feasible,he is authorized to accept partial retroces­sion which will enable tribes to exercise re­rerra; jurisdiction as provided in section 101

October 14, 1978 CONGRESSIONAl RECORD - HOUSE 38111(b) of this Act, or. where appropriate. wlllallow them to exercise exclusive jurisdictionas provided in section 101 (a) over llmitedcommunity or geographic areas without re­gard for' the reservation status of the areaaffected.

(c) If the Secretary approves any petitionunder subsection (a). the Secretary shallpublish notice of such approval in the FederalRegister and shall notify the affected Stateor' States of such approval. The Indian tribeconcerned shall reassume Jurisdiction sixtydays after publlcation in the Federal Regis­ter of notice of approval If the Secretary dis­approves any petition under subsection (a),the Secretary shall provide such technicalassistance as may be necessary to enable thetribe to correct any deficiency which the Sec­retary identified as a cause for disapproval

(d) Assumption of jurisdiction under thissection shall not affect any action or proceed­ing over which a court has already assumedjurisdiction. except as may be provided pur­suant to any agreement under section 109of this Act

SEC 109" (a) States and Indian tribes areauthorized to enter into agreements witheach other respecting care and custody ofIndian chlldren and jurisdiction over chlldcustody proceedings. including agreementswhich may provide for orderly transfer ofjurisdiction on a case-by-case basis andagreements which provide for concurrentJurisdiction between States and Indian tribes,

(b) Such agreements may be revoked byeither party upon one hundred and eightydays' written notice to the other party, Suchrevocation shall not affect any action or pro­ceeding over which a court has already as­sumed Jurisdiction. unless the agreementprovides otherwise

SEC, 110 Where any petitioner in an Indianchlld custody proceeding before a State courthas improperly removed the chlld from cus­tody of the parent or Indian custodian orhas improperly retained custody after a visitor other temporary relinquishment of cus­tody, the court shall decllne jurisdiction oversuch petition and shall forthwith return the~hlld to his parent or Indian custodtan un­less returning the chlld to his parent or' cus­todian would subject the child. to a sub­stantial and immediate danger or threat ofsuch danger,

SEC, 111 In any case where State or Fed­eral law appllcable to a ch11d custody pro­ceedlng under State or' Federal law providesa higher standard of protection to the rightsof the parent or Indian custodian of anIndian ch11d than the rights provided underthis title, the State or Federal court shallapply the State or Federal standard

SEC. 112, Nothing in this title shall be con­strued to prevent the emergency removal ofan Indian chlld who is a resident of or isdomic11ed on a reservation. but temporarttylocated orr the reservation, from his parentor Indian custodian or the emergency place­ment of such ch11d in a foster home or tnstt­tutlon, under appllcable State law, in orderto prevent imminent physical damage orharm to the child, The State authority, offi­cial, or agency involved shall insure that theemergency removal or placement terminatesimmediately when such removal or place­ment is no longer necessary to prevent immi­nent physical damage or harm to the chlldand shall expeditiously initiate a chlld cus­tody proceeding SUbject to the provisions ofthis title, transfer the chlld to the jurisdic­tion of the appropriate Indian tribe, or re­store the chlld to the parent or Indian cus­todian, as may be appropriate"

SEC. 113 None of the provisions of this title,except sections 101 (a), 108, and 109, shallaffect a proceeding under State law for fostercare placement, termination of parentalrights, preadopttve placement, or adoptiveplacement which was initiated or' completedprior to one hundred and eighty days after

the enactment of this Act, but shall apply toany subsequent proceeding in the samematter or subsequent proceedings affectingthe custody or placement of the same chlldTITLE II-INDIAN OHILD AND FAMILY

PROGRAMSSEC 201 (a) The Secretary is authorized

to make grants to Indian tribes and orga­nizations in the establlshment and operationof Indian chlld and family service programson or near reservations and in the prepara­tion and implementation of child welfarecodes The objective of every Indian chlldand famlly service program shall be to pre­vent the breakup of Indian famllles and, Inparticular, to insure that the permanentremoval of an Indian chlld from the custodyof his parent or Indian custodian shall bea last resort Such chlld and famlly serviceprograms may include, but are not llmitedto-

(1) a system for llcenslng or otherwise reg­Ulating Indian foster and adoptive homes;

(2) the operation and maintenance offacll!ties for the counsellng and treatmentof Indian familles and for the temporarycustody of Indian chlldren;

(3) famlly assistance, Includtng home­maker and home counselors, day care, arter­school care, and employment. recreattonalactivities, and respite care;

(4) home improvement programs;(5) the employment of professional and

other personnel to assist the tribal courtin the disposition of domestic relations andchlld welfare matters;

(6) education and trainlng of Indians, In­eluding tribal court judges and staff, in skl1lsrelating to child and famlly assistance andservice programs;

(7) a subsidy program under which In­dian adopttvecbtldren may be provided sup­port comparable to that for which theywould be ellgible as foster chlldren, takinginto account the appropriate State stand­ards of support for maintenance and medicalneeds; and

(8) guidance, legal representation, andadvice to Indian famllles involved in tribal.State. or Federal chlld custody proceedings

(b) Funds appropriated for use by theSecretary in accordance with this sectionmay be utlllzed as nori-P'ederat matchingshare in connection with funds providedunder titles IV-B and XX of the Social Se-..curity Act or under any other Federal nnan­cial assistance programs which contributeto the purpose for which such funds areauthorlzed to be appropriated for use underthis Act The provision or possiblllty of as­sistance under this Act shall be a basis forthe denial or reduction of any assistanceotherwise authorized under titles IV-B andXX of the Social Security Act or any otherfederally assisted program For purposes ofquallfying for assistance under a federallyassisted program, licensing or' approval offoster or adoptive homes or institutions byan Indian tribe shall be deemed equtvatentto llcensing or approval by a State.

SEC 202, The Secr'etary is also authorizedto make grants to Indian organizations toestablish and operate off-reservation Indianchlld and family service programs whichmay include, but are not llmited to-·

(1) a system for regulattng, maintaining,and supporting Indian foster and adoptivehomes, Including a subsidy program underwhich Indian adoptive chlldren may be pro­vided support comparable to that for whichthey would be ellgible as Indian foster chfl­dren, taking into account the appropriateState standards of support for maintenanceand medical needs;

(2) the operation and maintenance of fa­cll!ties and services for counsellng andtreatment of Indian famll!es and Indianfoster and adoptive chlldren;

(3) famlly assistance, including horne­maker and home counselors, day care, after-

school care, and employment, recreationalactivities, and respite care; and

(4) guidance, legal representation, andadvice to Indian families involved in chlldcustody proceedings.

SEC 203. (a) In the establlshment, opera­tion, and funding of Indian chlld and ramnyservice programs, both on and off reservation,the Secretary may enter into agreementswith the Secretary of Health, Education, andWelfare, and the latter Secretary is herebyauthorized for such purposes to use fundsappropriated for simllar programs of the De­partment of Health, Education, and Welfare:Provided, That authority to make paymentspursuant to such agreements shall be effec­tive only to the extent and In such amountsas may be provided in advance by appropria­tion Acts

(b) Funds for the purposes of this Act maybe appropriated pursuant to the provisions ofthe Act of November 2, 1921 (42 Stat 208),as amended.

SEC. 204, For the purposes of section 202and 203 of this title, the term "Indian" shallinclude persons defined In section 4 (c) of theIndian Health Care Improvement Act of1976 (90 Stat 1400, 1401)TITLE III-RECORDKEEPING, INFORMA­TION AVAILABILITY, AND TIMETABLESSEC 301. (a) Any State court entering a

final decree or order in any Indian childadoptive placement after the date of enact­ment of this Act shall provide the Secretarywith a copy of such decree 01' order togetherwith such other information as may benecessary to show-

(1) the name and tribal affiliation of thechild;

(2) the names and addresses of the bio­logical parents;

(3) the names and addresses of the adop­tive parents: and

(4) the identiy of any agency having filesor tnrormatton relating to such adoptiveplacementWhere the court records contain an affidavitof the biological parent or parents that theiridentity remain confidential, the court shallinclude such affidavit with the other infor­mation, The Secretary shall insure that theconfidentiality of such Information in main­talned and such information shall not besubject to the Freedom of Iriforrnatdon Act(5 US.G. 552), as amended,

(b) Upon the request of the adopted In­dian child over the age of eighteen, the adop­tive 01' foster parents of an Indian child, or anIndian tribe, the Secretary shall disclose suchinformation as may be necessary for the en­rollment of an Indian child in the tribe inwhich the child may be eligible for enroll­ment 01' for determining any rights or bene­fits associated with that membership Wherethe documents relating to such child containan affidavit from the biological parent 01' par­ents requesting anonymity, the Secretaryshall certify to the Indian chlld's tribe, wherethe information warrants, that the chlld'sparentage and other circumstances of birthentitle the child to enrollment under thecrtteria establlshed by such tribe,

SEC 302 Within one hundred and eightydays after the enactment of this Act, the Sec­retary shall promulgate such rules and regu­lations as may be necessary to carry out theprovisions of this Act,

TITLE IV-MISCELLANEOUSSEC. 40L (a) It is the sense of Congress

that the absence of locally convenient dayschools may contribute to the breakup of In­dian famllles

(b) The Secretary Is authorized and di­rected to prepare, in consultation with ap­propriate agencies in the Department ofHealth, Education, and Welfare, a report onthe feasibll!ty of providing Indian childrenwith schools located near their homes, andto submit such report to the Select Commlt-

CONGRESSIONAL RECORD - HOUSE38112tee on Indian Affairs of the United StatesSenate and the Committee on Interior andInsular Affairs of the United States House ofRepresentatives within two years from thedate of this Act. In developing this reportthe Secretar y shall give particular corisldera­tion to the provision of educational facilitiesfor children In the elmentary grades

SEC.402 .. Within sixty days after enactmentof this Act, the Secretary shall send to theGovernor, chief justice of the highest courtof appeal, and the attorney general of eachState a copy of this Act, together with com­mittee reports and an explanation of the pro­visions of this Act

SEC. 403. If any provision of' this Act or theapplicability thereof Is held Invalld, the re­maining provisions of this Act shall not bea.ffected thereby

The motion was agreed to.The Senate bill was ordered to be read

a third time, was read the third time, andpassed, and a motion to reconsider waslaid on the table.

A similar House bill (HR. 12533) waslaid on the table.

GENERAL LEAVEMr.. UDALL. Mr. Speaker, I ask unani­

mous consent that all Members may have5 legislative days in which to revise andextend their remarks on the legislationjust passed

The SPEAKER. Is there objection tothe request of the gentleman from Ari­zona?

There was no objection

FEDERAL RECLAMATION DAMSSAFETY

Mr. MEEDS .. Mr. Speaker, I move thatthe House resolve itself into the Com­mittee of the Whole House on the Stateof the Union for the consideration of thebill (H.R. 11153) to authorize the Secre­tary of the Interior to construct, restore,operate, and maintain new or modifiedfeatures at existing Federal reclamationdams for safety of dams purposes

The SPEAKER. The question is on themotion offered by the gentleman fromWashington (Mr MEEDS).

The motion was agreedIN THE COMMITIEE OF THE WHOLE

Accordingly the House resolved itselfinto the Committee of the Whole Houseon the State of the Union for the con­sideration of the bill HR 11153, withMr. PICKLE in the chair.

The Clerk read the title of the bill.The CHAIRMAN. Pursuant to the rule,

the first reading of the bill is dispensedwith..

Under the rule, the gentleman fromWashington (Mr .. MEEDS) will be recog­nized for 30 minutes, and the gentlemanfrom Idaho (Mr. SYMMS) will be recog­nized for 30 minutes

The Chair recognizes the gentlemanfrom' Washington (Mr .. MEEDS).

Mr. MEEDS. Mr .. Chairman, I yieldmyself such time as I may consume

Mr. Chairman and members of theCommittee, I would, at the outset, liketo express my deep appreciation to theranking minority member, the gentle­man from New Mexico (Mr LUJAN) who,unfortunately, is not able to be here to­day, but who has been very helpful in

the adoption and preparation of thislegislation which we sponsored with 21 ofour colleagues some time ago

Mr. Chairman, this is a totally bipar­tisan bill, and I know of no oppositionto the bill at all.

Mr.. Chairman, HR. 11153 would au­thorize the Secretary of the Interior toconstruct, restore, operate, and maintainnew or modified features at existingBureau of Reclamation dams and relatedfacilities to preserve their structuralsafety This measure, which I had thehonor to introduce, in cosponsorshipwith a bipartisan group of 22 of my col­leagues, results from an executive rec­ommendation of the Secretary of theInterior.

Through a program initiated in 1965­the examination of existing structuresprogram-the Bureau of Reclamationhas identified 27 Bureau dams whichwould not be able to withstand a maxi­mum probable flood or a maximum cred­ible earthquake and therefore in needof repair. Needed modifications havebeen completed on 10 of these 27 damsand are authorized and underway on4 dams, However, authorization is stillrequired for work on the remaining13 dams. HR 11153, by authorizing to beappropriated "such sums as may be nec­essary" to carry out dam safety modifi­cations This legislation would enablethe Secretary of the Interior to not onlyrepair these 13 dams but also to repairany other dams the Bureau of Reclama­tion may discover in need of safetymodifications.

The bill provides that these modifica­tions are for safety purposes only andnot for providing any additional benefitsover and above those originally author­ized and provided by the original damsand reservoirs. Also, this measure pro­vides that the costs of modifying thedams shall be allocated among the au­thorized purposes served by the damsand reservoirs in accordance with stand­ard cost allocation procedures. Costsallocated to irrigation shall be reim­bursable only to the extent of the waterusers' ability to repay as determined bythe Secretary

In summary, this is an importantmeasure that should be passed with dis­patch; both from the urgency of thefiscal year 1979 budget cycle and fromthe standpoint of assuring that poten­tial threats to life and property areeliminated at the earliest possible dateAccordingly, I urge all Members of thisbody to join with me in its passage

Mr. WEISS. Mr.. Chairman, will thegentleman yield?

Mr .. MEEDS. I will be delighted to yieldto the gentleman from New York.

Mr. WEISS .. I appreciate the gentle­man's yielding.

I have an indication that the NationalWildlife Federation has some problemwith this legislation, and I understandthat the basis of their concern waswhether there would be full cost recoveryfrom the users of the dam for whom itwas originally constructed. I wonder ifthe gentleman could enlighten us withrespect to those concerns?

Mr. MEEDS .. Yes I am sure those con­cerns will be allayed by an amendment

October 1./;,1978

which I will offer which clarifies thoseconcerns.

Mr .. WEISS. I appreciate the gentle­man's comments.

Mr MEEDS. Mr .. Chairman, I reservethe remainder of my time

Mr. SYMMS .. Mr.. Chairman, I Yieldmyself such time as I may consume ..

Mr. Chairman, I am pleased to join thegentleman from Washington in supportof this bill and I urge my colleagues onthis side of the aisle to give it theirsupport.

All we are doing here is giving theSecretary of the Interior the authorityto repair or modify any Bureau of Rec­lamation dam that is found to be un­sare, And we give him a fund to workfrom. The amount he will need from thefund will be determined by the amountof work necessary on each dam. We havewritten into the bill a congressional re­view mechanism so the Congress canretain control over the purse strings andmake certain that each job is absolutelynecessary.

The administration, in keeping withits continuing vendetta against Westernfarmers, asked for two provisions thatour committee refused to include in thebill. First, it asked for an open-endedappropriation authority so it could spendas much as it wanted on whateverprojects it chose, with no congressionalcontrol over the projects or the cost;then it demanded that the farmerswhose water is impounded by these damsbe forced to pay 100 percent of thosecosts. If they refused to pay, of course,the Government could shut off theirwater.

Our committee was not about to leavethe farmers that vulnerable to the Carterbureaucrats. Over the past 2 years, wehave seen all too clearly what thisadministration has in mind for ourWestern agriculture and ranching com­munity, and we wrote a differeniscenario into the bill

First, we built a control into the billso that each project will be reviewed bythe Congress to determine its feasibilityand its costs

Second, we removed the "such as arenecessary" language and authorized aspecific ceiling on appropriations.

Third, we made the repair costs non­reimbursable so the Government willhave to pay for its own mistakes. It justdoes not make sense for the Governmentto design a dam incorrectly, force thefarmers to pay for it, then go back andcorrect its own mistakes and force thefarmers to pay a second time for thecorrection With that kind of a policy,there would be no incentive for the Gov­ernment ever to make the dam totallysafe. Whole generations of engineerscould make a lifetime profession out ofrepairtng, modifying, correcting, and re­building a single dam, all at the expenseof the helpless farmer And when thefarmers go broke, the administrationbureaucrats could go in and take over thefarm and raffle it off in parcels in a na­tionallottery as they have been trying todo for the past 2 years.

With those policy questions settled,there is no doubt about the need for thisbill The failure of the Teton Dam