On the basis of extensive evidence indicating that large numbers
of Indian children were being separated from their families and
tribes and were being placed in non-Indian homes through state
adoption, foster care, and parental rights termination proceedings,
and that this practice caused serious problems for the children,
their parents, and their tribes, Congress enacted the Indian Child
Welfare Act of 1978 (ICWA), which,
inter alia, gives
tribal courts exclusive jurisdiction over custody proceedings
involving an Indian child "who resides or is domiciled within" a
tribe's reservation. This case involves the status of twin
illegitimate babies, whose parents were enrolled members of
appellant Tribe and residents and domiciliaries of its reservation
in Neshoba County, Mississippi. After the twins' births in Harrison
County, some 200 miles from the reservation, and their parents'
execution of consent-to-adoption forms, they were adopted in that
county's Chancery Court by the appellees Holyfield, who were
non-Indian. That court subsequently overruled appellant's motion to
vacate the adoption decree, which was based on the assertion that,
under the ICWA exclusive jurisdiction was vested in appellant's
tribal court. The Supreme Court of Mississippi affirmed, holding,
among other things, that the twins were not "domiciled" on the
reservation under state law, in light of the Chancery Court's
findings (1) that they had never been physically present there, and
(2) that they were "voluntarily surrendered" by their parents, who
went to some efforts to see that they were born outside the
reservation and promptly arranged for their adoption. Therefore,
the court said, the twins' domicile was in Harrison County, and the
Chancery Court properly exercised jurisdiction over the adoption
proceedings.
Held: The twins were "domiciled" on the Tribe's
reservation within the meaning of the ICWA's exclusive tribal
jurisdiction provision, and the Chancery Court was, accordingly,
without jurisdiction to enter the adoption decree. Pp.
490 U. S.
42-54.
(a) Although the ICWA does not define "domicile," Congress
clearly intended a uniform federal law of domicile for the ICWA,
and did not consider the definition of the word to be a matter of
state law. The ICWA's purpose was, in part, to make clear that, in
certain situations, the state courts did not have jurisdiction over
child custody proceedings. In fact,
Page 490 U. S. 31
the statutory congressional findings demonstrate that Congress
perceived the States and their courts as partly responsible for the
child separation problem it intended to correct. Thus, it is most
improbable that Congress would have intended to make the scope of
the statute's key jurisdictional provision subject to definition by
state courts as a matter of state law. Moreover, Congress could
hardly have intended the lack of nationwide uniformity that would
result from state law definitions of "domicile," whereby different
rules could apply from time to time to the same Indian child simply
as a result of his or her being moved across state lines. Pp.
490 U. S.
43-47.
(b) The generally accepted meaning of the term "domicile"
applies under the ICWA to the extent it is not inconsistent with
the objectives of the statute. In the absence of a statutory
definition, it is generally assumed that the legislative purpose is
expressed by the ordinary meaning of the words used, in light of
the statute's object and policy. Well settled common law principles
provide that the domicile of minors, who generally are legally
incapable of forming the requisite intent to establish a domicile,
is determined by that of their parents, which has traditionally
meant the domicile of the mother in the case of illegitimate
children. Thus, since the domicile of the twins' mother (as well as
their father) has been, at all relevant times, on appellant's
reservation, the twins were also domiciled there even though they
have never been there. This result is not altered by the fact that
they were "voluntarily surrendered" for adoption. Congress enacted
the ICWA because of concerns going beyond the wishes of individual
parents, finding that the removal of Indian children from their
cultural setting seriously impacts on long-term tribal survival,
and has a damaging social and psychological impact on many
individual Indian children. These concerns demonstrate that
Congress could not have intended to enact a rule of domicile that
would permit individual Indian parents to defeat the ICWA's
jurisdictional scheme simply by giving birth and placing the child
for adoption off the reservation. Pp.
490 U. S.
47-53.
511 So. 2d
918, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY,
J., joined,
post, p.
490 U. S.
54.
Page 490 U. S. 32
JUSTICE BRENNAN delivered the opinion of the Court.
This appeal requires us to construe the provisions of the Indian
Child Welfare Act that establish exclusive tribal jurisdiction over
child custody proceedings involving Indian children domiciled on
the tribe's reservation.
I
A
The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25
U.S.C. §§ 1901-1963, was the product of rising concern in the
mid-1970's over the consequences to Indian children, Indian
families, and Indian tribes of abusive child welfare practices that
resulted in the separation of large numbers of Indian children from
their families and tribes through adoption or foster care
placement, usually in non-Indian homes. Senate oversight hearings
in 1974 yielded numerous examples, statistical data, and expert
testimony documenting what one witness called "[t]he wholesale
removal of Indian children from their homes, . . . the most tragic
aspect of Indian life today." Indian Child Welfare Program,
Hearings before the Subcommittee on Indian Affairs of the Senate
Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3
(statement of William Byler) (hereinafter 1974 Hearings). Studies
undertaken by the Association on American Indian Affairs in 1969
and 1974, and presented in the Senate hearings, showed that 25 to
35% of all Indian children had been separated from their families
and placed in adoptive families, foster care, or institutions.
Id.
Page 490 U. S. 33
at 15;
see also H.R.Rep. No. 95-1386, p. 9 (1978)
(hereinafter House Report). Adoptive placements counted
significantly in this total: in the State of Minnesota, for
example, one in eight Indian children under the age of 18 was in an
adoptive home, and, during the year 1971-1972, nearly one in every
four infants under one year of age was placed for adoption. The
adoption rate of Indian children was eight times that of non-Indian
children. Approximately 90% of the Indian placements were in
non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses
also testified to the serious adjustment problems encountered by
such children during adolescence, [
Footnote 1] as well as the impact of the adoptions on
Indian parents and the tribes themselves.
See generally
1974 Hearings.
Further hearings, covering much the same ground, were held
during 1977 and 1978 on the bill that became the
Page 490 U. S. 34
ICWA. [
Footnote 2] While
much of the testimony again focused on the harm to Indian parents
and their children who were involuntarily separated by decisions of
local welfare authorities, there was also considerable emphasis on
the impact on the tribes themselves of the massive removal of their
children. For example, Mr. Calvin Isaac, Tribal Chief of the
Mississippi Band of Choctaw Indians and representative of the
National Tribal Chairmen's Association, testified as follows:
"Culturally, the chances of Indian survival are significantly
reduced if our children, the only real means for the transmission
of the tribal heritage, are to be raised in non-Indian homes and
denied exposure to the ways of their People. Furthermore, these
practices seriously undercut the tribes' ability to continue as
self-governing communities. Probably in no area is it more
important that tribal sovereignty be respected than in an area as
socially and culturally determinative as family relationships."
1978 Hearings at 193.
See also id. at 62. [
Footnote 3] Chief Isaac also summarized
succinctly what numerous witnesses saw as the principal reason for
the high rates of removal of Indian children:
"One of the most serious failings of the present system is that
Indian children are removed from the custody of their natural
parents by nontribal government authorities who have no basis for
intelligently evaluating the cultural and social premises
underlying Indian home life
Page 490 U. S. 35
and childrearing. Many of the individuals who decide the fate of
our children are, at best, ignorant of our cultural values, and, at
worst, contemptful of the Indian way and convinced that removal,
usually to a non-Indian household or institution, can only benefit
an Indian child."
Id. at 191-192. [
Footnote 4]
The congressional findings that were incorporated into the ICWA
reflect these sentiments. The Congress found:
"(3) that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their
children . . . ;"
"(4) that an alarmingly high percentage of Indian families are
broken up by the removal, often unwarranted, of their children from
them by nontribal public and private agencies, and that an
alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions; and"
"(5) that the States, exercising their recognized jurisdiction
over Indian child custody proceedings through administrative and
judicial bodies, have often failed to recognize the essential
tribal relations of Indian people
Page 490 U. S. 36
and the cultural and social standards prevailing in Indian
communities and families."
25 U.S.C. § 1901.
At the heart of the ICWA are its provisions concerning
jurisdiction over Indian child custody proceedings. Section 1911
lays out a dual jurisdictional scheme. Section 1911(a) establishes
exclusive jurisdiction in the tribal courts for proceedings
concerning an Indian child "who resides or is domiciled within the
reservation of such tribe," as well as for wards of tribal courts
regardless of domicile. [
Footnote
5] Section 1911(b), on the other hand, creates concurrent but
presumptively tribal jurisdiction in the case of children not
domiciled on the reservation: on petition of either parent or the
tribe, state court proceedings for foster care placement or
termination of parental rights are to be transferred to the tribal
court, except in cases of "good cause," objection by either parent,
or declination of jurisdiction by the tribal court.
Various other provisions of ICWA Title I set procedural and
substantive standards for those child custody proceedings that do
take place in state court. The procedural safeguards include
requirements concerning notice and appointment of counsel; parental
and tribal rights of intervention and petition for invalidation of
illegal proceedings; procedures governing voluntary consent to
termination of parental rights; and a full faith and credit
obligation in respect to tribal court decisions.
See §§
1901-1914. The most important substantive requirement imposed on
state courts is that of § 1915(a), which, absent "good cause" to
the contrary, mandates
Page 490 U. S. 37
that adoptive placements be made preferentially with (1) members
of the child's extended family, (2) other members of the same
tribe, or (3) other Indian families.
The ICWA, thus, in the words of the House Report accompanying
it,
"seeks to protect the rights of the Indian child as an Indian
and the rights of the Indian community and tribe in retaining its
children in its society."
House Report, at 23. It does so by establishing "a Federal
policy that, where possible, an Indian child should remain in the
Indian community,"
ibid., and by making sure that Indian
child welfare determinations are not based on "a white,
middle-class standard which, in many cases, forecloses placement
with [an] Indian family."
Id. at 24. [
Footnote 6]
B
This case involves the status of twin babies, known for our
purposes as B.B. and G.B., who were born out of wedlock on December
29, 1985. Their mother, J.B., and father, W.J., were both enrolled
members of appellant Mississippi Band of Choctaw Indians (Tribe),
and were residents and domiciliaries of the Choctaw Reservation in
Neshoba County, Mississippi. J.B. gave birth to the twins in
Gulfport, Harrison County, Mississippi, some 200 miles from the
reservation. On January 10, 1986, J.B. executed a
consent-to-adoption form before the Chancery Court of Harrison
Page 490 U. S. 38
County. Record 8-10. [
Footnote
7] W.J. signed a similar form. [
Footnote 8] On January 16, appellees Orrey and Vivian
Holyfield [
Footnote 9] filed a
petition for adoption in the same court,
id. at 1-5, and
the chancellor issued a Final Decree of Adoption on January 28.
Id. at 13-14. [
Footnote
10] Despite the court's apparent awareness of the ICWA,
[
Footnote 11] the adoption
decree contained no reference to it, nor to the infants' Indian
background.
Two months later, the Tribe moved in the Chancery Court to
vacate the adoption decree on the ground that, under the ICWA,
exclusive jurisdiction was vested in the tribal court.
Id.
at 15-18. [
Footnote 12] On
July 14, 1986, the court overruled the motion,
Page 490 U. S. 39
holding that the Tribe "never obtained exclusive jurisdiction
over the children involved herein. . . ." The court's one-page
opinion relied on two facts in reaching that conclusion. The court
noted first that the twins' mother "went to some efforts to see
that they were born outside the confines of the Choctaw Indian
Reservation," and that the parents had promptly arranged for the
adoption by the Holyfields. Second, the court stated:
"At no time from the birth of these children to the present date
have either of them resided on or physically been on the Choctaw
Indian Reservation."
Id. at 78.
The Supreme Court of Mississippi affirmed.
511 So. 2d
918 (1987). It rejected the Tribe's arguments that the state
court lacked jurisdiction and that it, in any event, had not
applied the standards laid out in the ICWA. The court recognized
that the jurisdictional question turned on whether the twins were
domiciled on the Choctaw Reservation. It answered that question as
follows:
"At no point in time can it be said the twins resided on or were
domiciled within the territory set aside for the reservation.
Appellant's argument that living within the womb of their mother
qualifies the children's residency on the reservation may be lauded
for its creativity; however, apparently it is unsupported by any
law within this state, and will not be addressed at this time due
to the far-reaching legal ramifications that would occur were we to
follow such a complicated tangential course."
Id. at 921.
Page 490 U. S. 40
The court distinguished Mississippi cases that appeared to
establish the principle that "the domicile of minor children
follows that of the parents,"
ibid.; see Boyle v. Griffin,
84 Miss. 41, 36 So. 141 (1904);
Stubbs v.
Stubbs, 211 So. 2d
821 (Miss.1968);
see also In re Guardianship of
Watson, 317 So. 2d
30 (Miss.1975). It noted that
"the Indian twins . . . were voluntarily surrendered and legally
abandoned by the natural parents to the adoptive parents, and it is
undisputed that the parents went to some efforts to prevent the
children from being placed on the reservation as the mother
arranged for their birth and adoption in Gulfport Memorial
Hospital, Harrison County, Mississippi."
511 So. 2d at 921. Therefore, the court said, the twins'
domicile was in Harrison County, and the state court properly
exercised jurisdiction over the adoption proceedings. Indeed, the
court appears to have concluded that, for this reason,
none of the provisions of the ICWA was applicable.
Ibid. ("[T]hese proceedings . . . actually escape
applicable federal law on Indian Child Welfare"). In any case, it
rejected the Tribe's contention that the requirements of the ICWA
applicable in state courts had not been followed:
"[T]he judge did conform and strictly adhere to the minimum
federal standards governing adoption of Indian children with
respect to parental consent, notice, service of process, etc."
Ibid. [
Footnote
13]
Page 490 U. S. 41
Because of the centrality of the exclusive tribal jurisdiction
provision to the overall scheme of the ICWA, as well as the
conflict between this decision of the Mississippi Supreme Court and
those of several other state courts, [
Footnote 14] we granted plenary review. 486 U.S. 1021
(1988). [
Footnote 15] We now
reverse.
Page 490 U. S. 42
II
Tribal jurisdiction over Indian child custody proceedings is not
a novelty of the ICWA. Indeed, some of the ICWA's jurisdictional
provisions have a strong basis in pre-ICWA case law in the federal
and state courts.
See, e.g., Fisher v. District Court, Sixth
Judicial District of Montana, 424 U.
S. 382 (1976) (per curiam) (tribal court had exclusive
jurisdiction over adoption proceeding where all parties were tribal
members and reservation residents);
Wisconsin Potowatomies of
Hannahville Indian Community v. Houston, 393 F.
Supp. 719 (WD Mich.1973) (tribal court had exclusive
jurisdiction over custody of Indian children found to have been
domiciled on reservation);
Wakefield v. Little Light, 276
Md. 333, 347 A.2d 228 (1975) (same);
In re Adoption of
Buehl, 87 Wash. 2d
649,
555 P.2d
1334 (1976) (state court lacked jurisdiction over custody of
Indian children placed in off-reservation foster care by tribal
court order);
see also In re Lelah-puc-ka-chee, 98 F. 429
(ND Iowa 1899) (state court lacked jurisdiction to appoint guardian
for Indian child living on reservation). In enacting the ICWA,
Congress confirmed that, in child custody proceedings involving
Indian children domiciled on the reservation, tribal jurisdiction
was exclusive as to the States.
The state court proceeding at issue here was a "child custody
proceeding." That term is defined to include any "
adoptive
placement' which shall mean the permanent placement of an Indian
child for adoption, including any action resulting in a final
decree of adoption." 25 U.S.C. § 1903(1)(iv). Moreover, the twins
were "Indian children." See 25 U.S.C. § 1903(4). The sole
issue in this case is, as the Supreme Court of Mississippi
recognized, whether the twins were "domiciled" on the reservation.
[Footnote 16]
Page 490 U. S. 43
A
The meaning of "domicile" in the ICWA is, of course, a matter of
Congress' intent. The ICWA itself does not define it. The initial
question we must confront is whether there is any reason to believe
that Congress intended the ICWA definition of "domicile" to be a
matter of state law. While the meaning of a federal statute is
necessarily a federal question in the sense that its construction
remains subject to this Court's supervision,
see P. Bator,
D. Meltzer, P. Mistakin, & D. Shapiro, Hart and Wechsler's The
Federal Courts and the Federal System 566 (3d ed.1988);
cf.
Reconstruction Finance Corporation v. Beaver County,
328 U. S. 204,
328 U. S. 210
(1946), Congress sometimes intends that a statutory term be given
content by the application of state law.
De Sylva v.
Ballentine, 351 U. S. 570,
351 U. S. 580
(1956);
see also Beaver County, supra; Helvering v.
Stuart, 317 U. S. 154,
317 U. S.
161-162 (1942). We start, however, with the general
assumption that
"in the absence of a plain indication to the contrary, . . .
Congress when it enacts a statute, is not making the application of
the federal act dependent on state law."
Jerome v. United States, 318 U.
S. 101,
318 U. S. 104
(1943);
NLRB v. Natural Gas Utility Dist. of Hawkins
County, 402 U. S. 600,
402 U. S. 603
(1971);
Dickerson v. New Banner Institute, Inc.,
460 U. S. 103,
460 U. S. 119
(1983). One reason for this rule of construction is that federal
statutes are generally intended to have uniform nationwide
application.
Jerome, supra, at
318 U. S. 104;
Dickerson, supra, at
460 U. S.
119-120;
United States v. Pelzer, 312 U.
S. 399,
312 U. S.
402-403 (1941). Accordingly, the cases in which we
have
Page 490 U. S. 44
found that Congress intended a state law definition of a
statutory term have often been those where uniformity clearly was
not intended.
E.g., Beaver County, supra, at
328 U. S. 209
(statute permitting States to apply their diverse local tax laws to
real property of certain Government corporations). A second reason
for the presumption against the application of state law is the
danger that "the federal program would be impaired if state law
were to control."
Jerome, supra, at
318 U. S. 104;
Dickerson, supra, at
460 U. S.
119-120;
Pelzer, 312 U.S. at
312 U. S.
402-403. For this reason, "we look to the purpose of the
statute to ascertain what is intended."
Id. at
312 U. S.
403.
In
NLRB v. Hearst Publications, Inc., 322 U.
S. 111 (1944), we rejected an argument that the term
"employee" as used in the Wagner Act should be defined by state
law. We explained our conclusion as follows:
"Both the terms and the purposes of the statute as well as the
legislative history show that Congress had in mind no . . .
patchwork plan for securing freedom of employees' organization and
of collective bargaining. The Wagner Act is . . . intended to solve
a national problem on a national scale. . . . Nothing in the
statute's background, history, terms or purposes indicates its
scope is to be limited by . . . varying local conceptions, either
statutory or judicial, or that it is to be administered in
accordance with whatever different standards the respective states
may see fit to adopt for the disposition of unrelated, local
problems."
Id. at
322 U. S. 123.
See also Natural Gas Utility Dist., supra, at 603-604. For
the two principal reasons that follow, we believe that what we said
of the Wagner Act applies equally well to the ICWA.
First, and most fundamentally, the purpose of the ICWA gives no
reason to believe that Congress intended to rely on state law for
the definition of a critical term; quite the contrary. It is clear
from the very text of the ICWA, not to mention its legislative
history and the hearings that led to its
Page 490 U. S. 45
enactment, that Congress was concerned with the rights of Indian
families and Indian communities
vis-a-vis state
authorities. [
Footnote 17]
More specifically, its purpose was, in part, to make clear that, in
certain situations, the state courts did
not have
jurisdiction over child custody proceedings. Indeed, the
congressional findings that are a part of the statute demonstrate
that Congress perceived the States and their courts as partly
responsible for the problem it intended to correct.
See 25
U.S.C. § 1901(5) (state "judicial bodies . . . have often failed to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and
families"). [
Footnote 18]
Under these circumstances, it is most improbable that Congress
would have intended to leave the scope of the statute's key
jurisdictional provision subject to definition by state courts as a
matter of state law.
Second, Congress could hardly have intended the lack of
nationwide uniformity that would result from state law definitions
of domicile. An example will illustrate. In a case quite similar to
this one, the New Mexico state courts found exclusive jurisdiction
in the tribal court pursuant to § 1911(a),
Page 490 U. S. 46
because the illegitimate child took the reservation domicile of
its mother at birth -- notwithstanding that the child was placed in
the custody of adoptive parents two days after its off-reservation
birth and the mother executed a consent to adoption 10 days later.
In re Adoption of Baby Child, 102 N.M. 735, 737-738,
700 P.2d
198, 200-201 (App.1985). [
Footnote 19] Had that mother traveled to Mississippi to
give birth, rather than to Albuquerque, a different result would
have obtained if state law definitions of domicile applied. The
same, presumably, would be true if the child had been transported
to Mississippi for adoption after her off-reservation birth in New
Mexico. While the child's custody proceeding would have been
subject to exclusive tribal jurisdiction in her home State, her
mother, prospective adoptive parents, or an adoption intermediary
could have obtained an adoption decree in state court merely by
transporting her across state lines. [
Footnote 20] Even if we could conceive of a federal
statute under which the rules of domicile (and thus of
jurisdiction) applied differently to different Indian children, a
statute under which different rules apply from time to time to the
same child, simply as a result of his or her transport from one
State to another, cannot be what Congress had in mind. [
Footnote 21]
Page 490 U. S. 47
We therefore think it beyond dispute that Congress intended a
uniform federal law of domicile for the ICWA. [
Footnote 22]
B
It remains to give content to the term "domicile" in the
circumstances of the present case. The holding of the Supreme Court
of Mississippi that the twin babies were not domiciled on the
Choctaw Reservation appears to have rested on two findings of fact
by the trial court: (1) that they had never been physically present
there, and (2) that they were "voluntarily surrendered" by their
parents. 511 So. 2d at 921;
see Record 78. The question
before us, therefore, is whether, under the ICWA definition of
"domicile," such facts suffice to render the twins nondomiciliaries
of the reservation.
We have often stated that, in the absence of a statutory
definition, we "start with the assumption that the legislative
purpose is expressed by the ordinary meaning of the words used."
Richards v. United States, 369 U. S.
1,
369 U. S. 9
(1962);
Russello v. United States, 464 U. S.
16,
464 U. S. 21
(1983). We do so, of course, in the light of the "'object and
policy"' of the statute.
Mastro Plastics Corp. v. NLRB,
350 U. S. 270,
350 U. S. 285
(1956), quoting
United States v. Boisdore's
Heirs, 8 How. 113,
49 U. S. 122
(1849). We therefore look both to the generally accepted meaning of
the term "domicile" and to the purpose of the statute.
That we are dealing with a uniform federal rather than a state
definition does not, of course, prevent us from drawing on general
state law principles to determine "the ordinary meaning of the
words used." Well settled state law can inform our understanding of
what Congress had in mind when it employed a term it did not
define. Accordingly, we find it helpful to borrow established
common law principles of domicile
Page 490 U. S. 48
to the extent that they are not inconsistent with the objectives
of the congressional scheme.
"Domicile" is, of course, a concept widely used in both federal
and state courts for jurisdiction and conflict-of-laws purposes,
and its meaning is generally uncontroverted.
See generally
Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix,
American Conflicts Law 17-38 (4th ed.1986); R. Weintraub,
Commentary on the Conflict of Laws 12-24 (2d ed.1980). "Domicile"
is not necessarily synonymous with "residence,"
Perri v.
Kisselbach, 34 N.J. 84, 87,
167 A.2d
377, 379 (1961), and one can reside in one place but be
domiciled in another,
District of Columbia v. Murphy,
314 U. S. 441
(1941);
In re Estate of Jones, 192 Iowa 78, 80, 182 N.W.
227, 228 (1921). For adults, domicile is established by physical
presence in a place in connection with a certain state of mind
concerning one's intent to remain there.
Texas v. Florida,
306 U. S. 398,
306 U. S. 424
(1939). One acquires a "domicile of origin" at birth, and that
domicile continues until a new one (a "domicile of choice") is
acquired.
Jones, supra, at 81, 182 N.W. at 228;
In re
Estate of Moore, 68 Wash. 2d
792, 796,
415 P.2d
653, 656 (1966). Since most minors are legally incapable of
forming the requisite intent to establish a domicile, their
domicile is determined by that of their parents.
Yarborough v.
Yarborough, 290 U. S. 202,
290 U. S. 211
(1933). In the case of an illegitimate child, that has
traditionally meant the domicile of its mother.
Kowalski v.
Wojtkowski, 19 N.J. 247, 258,
116 A.2d
6, 12 (1955);
Moore, supra, at 796, 415 P.2d at 656;
Restatement § 14(2), § 22, Comment c; 25 Am. Jur.2d Domicil § 69
(1966). Under these principles, it is entirely logical that "[o]n
occasion, a child's domicil of origin will be in a place where the
child has never been." Restatement § 14, Comment b.
It is undisputed in this case that the domicile of the mother
(as well as the father) has been, at all relevant times, on the
Choctaw Reservation. Tr. of Oral Arg. 28-29. Thus, it is clear that
at their birth the twin babies were also domiciled
Page 490 U. S. 49
on the reservation, even though they themselves had never been
there. The statement of the Supreme Court of Mississippi that "[a]t
no point in time can it be said the twins . . . were domiciled
within the territory set aside for the reservation," 511 So. 2d at
921, may be a correct statement of that State's law of domicile,
but it is inconsistent with generally accepted doctrine in this
country and cannot be what Congress had in mind when it used the
term in the ICWA.
Nor can the result be any different simply because the twins
were "voluntarily surrendered" by their mother. Tribal jurisdiction
under § 1911(a) was not meant to be defeated by the actions of
individual members of the tribe, for Congress was concerned not
solely about the interests of Indian children and families, but
also about the impact on the tribes themselves of the large numbers
of Indian children adopted by non-Indians.
See 25 U.S.C.
§§ 1901(3) ("[T]here is no resource that is more vital to the
continued existence and integrity of Indian tribes than their
children"), 1902 ("promote the stability and security of Indian
tribes"). [
Footnote 23] The
numerous prerogatives accorded the tribes through the ICWA's
substantive provisions,
e.g., §§ 1911(a) (exclusive
jurisdiction over reservation domiciliaries), 1911(b) (presumptive
jurisdiction over nondomiciliaries), 1911(c) (right of
intervention), 1912(a) (notice), 1914 (right to petition for
invalidation of state court action), 1915(c) (right to alter
presumptive placement priorities applicable to state court
actions), 1915(e) (right to obtain records), 1919 (authority to
conclude agreements with States), must, accordingly, be seen as a
means of protecting not only the interests of individual Indian
children and families, but also of the tribes themselves.
In addition, it is clear that Congress' concern over the
placement of Indian children in non-Indian homes was based in part
on evidence of the detrimental impact on the children
Page 490 U. S. 50
themselves of such placements outside their culture. [
Footnote 24] Congress determined to
subject such placements to the ICWA's jurisdictional and other
provisions, even in cases where the parents consented to an
adoption, because of concerns going beyond the wishes of individual
parents. As the 1977 Final Report of the congressionally
established American Indian Policy Review Commission stated, in
summarizing these two concerns,
"[r]emoval of Indian children from their cultural setting
seriously impacts a long-term tribal survival and has damaging
social and psychological impact on many individual Indian
children."
Senate Report, at 52. [
Footnote 25]
Page 490 U. S. 51
These congressional objectives make clear that a rule of
domicile that would permit individual Indian parents to defeat the
ICWA's jurisdictional scheme is inconsistent with what Congress
intended. [
Footnote 26]
See In re Adoption of Child of Indian Heritage, 111 N.J.
155, 168-171,
543 A.2d
925, 931-933 (1988). The appellees in this case argue
strenuously that the twins' mother went to great lengths to give
birth off the reservation so that her children could be adopted by
the Holyfields. But that was precisely part of Congress'
concern.
Page 490 U. S. 52
Permitting individual members of the tribe to avoid tribal
exclusive jurisdiction by the simple expedient of giving birth off
the reservation would, to a large extent, nullify the purpose the
ICWA was intended to accomplish. [
Footnote 27] The Supreme Court of Utah expressed this
well in its scholarly and sensitive opinion in what has become a
leading case on the ICWA:
"To the extent that [state] abandonment law operates to permit
[the child's] mother to change [the child's] domicile as part of a
scheme to facilitate his adoption by non-Indians while she remains
a domiciliary of the reservation, it conflicts with and undermines
the operative scheme established by subsections [1911(a)] and
[1913(a)] to deal with children of domiciliaries of the
reservation, and weakens considerably the tribe's ability to assert
its interest in its children. The protection of this tribal
interest is at the core of the ICWA, which recognizes that the
tribe has an interest in the child which is distinct from, but on a
parity with, the interest of the parents. This relationship between
Indian tribes and Indian children domiciled on the reservation
finds no parallel in other ethnic cultures found in the United
States. It is a relationship that many non-Indians find difficult
to understand, and that non-Indian courts are slow to recognize. It
is precisely in recognition of this relationship, however, that the
ICWA designates the tribal court as the exclusive forum for the
determination of custody and
Page 490 U. S. 53
adoption matters for reservation-domiciled Indian children, and
the preferred forum for nondomiciliary Indian children. [State]
abandonment law cannot be used to frustrate the federal legislative
judgment expressed in the ICWA that the interests of the tribe in
custodial decisions made with respect to Indian children are as
entitled to respect as the interests of the parents."
In re Adoption of Halloway, 732 P.2d 962,
969-970 (1986).
We agree with the Supreme Court of Utah that the law of domicile
Congress used in the ICWA cannot be one that permits individual
reservation-domiciled tribal members to defeat the tribe's
exclusive jurisdiction by the simple expedient of giving birth and
placing the child for adoption off the reservation. Since, for
purposes of the ICWA, the twin babies in this case were domiciled
on the reservation when adoption proceedings were begun, the
Choctaw tribal court possessed exclusive jurisdiction pursuant to
25 U.S.C. § 1911(a). The Chancery Court of Harrison County was,
accordingly, without jurisdiction to enter a decree of adoption;
under ICWA § 104, 25 U.S.C. § 1914, its decree of January 28, 1986,
must be vacated.
III
We are not unaware that over three years have passed since the
twin babies were born and placed in the Holyfield home, and that a
court deciding their fate today is not writing on a blank slate in
the same way it would have in January, 1986. Three years'
development of family ties cannot be undone, and a separation at
this point would doubtless cause considerable pain.
Whatever feelings we might have as to where the twins should
live, however, it is not for us to decide that question. We have
been asked to decide the legal question of who should make the
custody determination concerning these children -- not what the
outcome of that determination should be. The law places that
decision in the hands of the Choctaw tribal court. Had the mandate
of the ICWA been followed in
Page 490 U. S. 54
1986, of course, much potential anguish might have been avoided,
and in any case the law cannot be applied so as automatically to
"reward those who obtain custody, whether lawfully or otherwise,
and maintain it during any ensuing (and protracted) litigation."
Halloway, 732 P.2d at 972. It is not ours to say whether
the trauma that might result from removing these children from
their adoptive family should outweigh the interest of the Tribe --
and perhaps the children themselves -- in having them raised as
part of the Choctaw community. [
Footnote 28] Rather, "we must defer to the experience,
wisdom, and compassion of the [Choctaw] tribal courts to fashion an
appropriate remedy."
Ibid.
The judgment of the Supreme Court of Mississippi is reversed,
and the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
[
Footnote 1]
For example, Dr. Joseph Westermeyer, a University of Minnesota
social psychiatrist, testified about his research with Indian
adolescents who experienced difficulty coping in white society,
despite the fact that they had been raised in a purely white
environment:
"[T]hey were raised with a white cultural and social identity.
They are raised in a white home. They attended, predominantly white
schools, and in almost all cases, attended a church that was
predominantly white, and really came to understand very little
about Indian culture, Indian behavior, and had virtually no viable
Indian identity. They can recall such things as seeing cowboys and
Indians on TV and feeling that Indians were a historical figure,
but were not a viable contemporary social group."
"Then, during adolescence, they found that society was not to
grant them the white identity that they had. They began to find
this out in a number of ways. For example, a universal experience
was that, when they began to date white children, the parents of
the white youngsters were against this, and there were pressures
among white children from the parents not to date these Indian
children. . . ."
"The other experience was derogatory name-calling in relation to
their racial identity. . . . "
"
* * * *"
"[T]hey were finding that society was putting on them an
identity which they didn't possess and taking from them an identity
that they did possess."
1974 Hearings, at 46.
[
Footnote 2]
Hearing on S. 1214 before the Senate Select Committee on Indian
Affairs, 95th Cong., 1st Sess. (1977) (hereinafter 1977 Hearings);
Hearings on S. 1214 before the Subcommittee on Indian Affairs and
Public Lands of the House Committee on Interior and Insular
Affairs, 95th Cong., 2d Sess. (1978) (hereinafter 1978
Hearings).
[
Footnote 3]
These sentiments were shared by the ICWA's principal sponsor in
the House, Rep. Morris Udall,
see 124 Cong.Rec. 38102
(1978) ("Indian tribes and Indian people are being drained of their
children and, as a result, their future as a tribe and a people is
being placed in jeopardy"), and its minority sponsor, Rep. Robert
Lagomarsino,
see ibid. ("This bill is directed at
conditions which . . . threaten . . . the future of American Indian
tribes . . .").
[
Footnote 4]
One of the particular points of concern was the failure of
non-Indian child welfare workers to understand the role of the
extended family in Indian society. The House Report on the ICWA
noted:
"An Indian child may have scores of, perhaps more than a
hundred, relatives who are counted as close, responsible members of
the family. Many social workers, untutored in the ways of Indian
family life or assuming them to be socially irresponsible, consider
leaving the child with persons outside the nuclear family as
neglect, and thus as grounds for terminating parental rights."
House Report at 10. At the conclusion of the 1974 Senate
hearings, Senator Abourezk noted the role that such extended
families played in the care of children:
"We've had testimony here that, in Indian communities throughout
the Nation, there is no such thing as an abandoned child, because,
when a child does have a need for parents for one reason or
another, a relative or a friend will take that child in. It's the
extended family concept."
1974 Hearings at 473.
See also Wisconsin Potowatomies of
Hannahville Indian Community v. Houston, 393 F.
Supp. 719 (WD Mich.1973) (discussing custom of extended family
and tribe assuming responsibility for care of orphaned
children).
[
Footnote 5]
Section 1911(a) reads in full:
"An Indian tribe shall have jurisdiction exclusive as to any
State over any child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State by
existing Federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retain exclusive jurisdiction,
notwithstanding the residence or domicile of the child."
[
Footnote 6]
The quoted passages are from the House Report's discussion of §
1915, in which the ICWA attempts to accomplish these aims, in
regard to nondomiciliaries of the reservation, through the
establishment of standards for state court proceedings. In regard
to reservation domiciliaries, these goals are pursued through the
establishment of exclusive tribal jurisdiction under § 1911(a).
Beyond its jurisdictional and other provisions concerning child
custody proceedings, the ICWA also created, in its Title II, a
program of grants to Indian tribes and organizations to aid in the
establishment of child welfare programs.
See 25 U.S.C. §§
1931-1934.
[
Footnote 7]
Section 103(a) of the ICWA, 25 U.S.C. § 1913(a), requires that
any voluntary consent to termination of parental rights be executed
in writing and recorded before a judge of a "court of competent
jurisdiction," who must certify that the terms and consequences of
the consent were fully explained and understood. Section 1913(a)
also provides that any consent given prior to birth or within 10
days thereafter is invalid. In this case the mother's consent was
given 12 days after the birth.
See also n. 26,
infra.
[
Footnote 8]
W.J.'s consent to adoption was signed before a notary public in
Neshoba County on January 11, 1986. Record 11-12. Only on June 3,
1986, however -- well after the decree of adoption had been entered
and after the Tribe had filed suit to vacate that decree -- did the
chancellor of the Chancery Court certify that W.J. had appeared
before him in Harrison County to execute the consent to adoption.
Id. at 12-A.
[
Footnote 9]
Appellee Orrey Holyfield died during the pendency of this
appeal.
[
Footnote 10]
Mississippi adoption law provides for a 6-month waiting period
between interlocutory and final decrees of adoption, but grants the
chancellor discretionary authority to waive that requirement and
immediately enter a final decree of adoption.
See
Miss.Code Ann. § 93-17-13 (1972). The chancellor did so here,
Record 14, with the result that the final decree of adoption was
entered less than one month after the babies' birth.
[
Footnote 11]
The chancellor's certificates that the parents had appeared
before him to consent to the adoption recited that "the Consent and
Waiver was given in full compliance with Section 103(a) of Public
Law 95-608" (
i.e., 25 U.S.C. § 1913(a)). Record 10,
12-A.
[
Footnote 12]
The ICWA specifically confers standing on the Indian child's
tribe to participate in child custody adjudications. Title 25
U.S.C. § 1914 authorizes the tribe (as well as the child and its
parents) to petition a court to invalidate any foster care
placement or termination of parental rights under state law "upon a
showing that such action violated any provision of sections 101,
102, and 103" of the ICWA. 92 Stat. 3072.
See also §
1911(c)(Indian child's tribe may intervene at any point in state
court proceedings for foster care placement or termination of
parental rights). "Termination of parental rights" is defined in §
1903(1)(ii) as "any action resulting in the termination of the
parent-child relationship."
[
Footnote 13]
The lower court may well have fulfilled the applicable ICWA
procedural requirements.
But see n 8,
supra, and n. 26,
infra. It
clearly did not, however, comply with or even take cognizance of
the substantive mandate of § 1915(a):
"In any adoptive placement of an Indian child
under State
law, a preference shall be given, in the absence of good cause
to the contrary, to a placement with (1) a member of the child's
extended family; (2) other members of the Indian child's tribe; or
(3) other Indian families."
(Emphasis added.) Section 1915(e), moreover, requires the court
to maintain records "evidencing the efforts to comply with the
order of preference specified in this section." Notwithstanding the
Tribe's argument below that § 1915 had been violated,
see
Brief for Appellant 20-22 and Appellant's Brief in Support of
Petition for Rehearing 11-12 in No. 57,659 (Miss. Sup. Ct.), the
Mississippi Supreme Court made no reference to it, merely stating
in conclusory fashion that the "minimum federal standards" had been
met.
511 So. 2d
918, 921 (1987).
[
Footnote 14]
See, e.g., In re Adoption of Halloway, 732 P.2d 962
(Utah 1986);
In re Adoption of Baby Child, 102 N.M. 735,
700 P.2d
198 (App.1985);
In re Appeal in Pima County Juvenile Action
No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981),
cert.
denied sub nom. Catholic Social Services of Tucson v. P.C.,
455 U.S. 1007 (1982).
[
Footnote 15]
Because it was unclear whether this case fell within the Court's
appellate jurisdiction, we postponed consideration of our
jurisdiction to the hearing on the merits. Pursuant to the version
of 28 U.S.C. § 1257(2) applicable to this appeal, we have appellate
jurisdiction to review a state court judgment
"where is drawn in question the validity of a statute of any
state on the ground of its being repugnant to the Constitution,
treaties or laws of the United States, and the decision is in favor
of its validity."
It is sufficient that the validity of the state statute be
challenged and sustained as applied to a particular set of facts.
Volt Information Sciences, Inc. v. Board of Trustees of
Stanford University, 489 U. S. 468,
489 U. S.
473-474, n. 4 (1989);
Datanke-Walker Milling Co. v.
Bondurant, 257 U. S. 282,
257 U. S.
288-290 (1921). In practice, whether such an as-applied
challenge comes within our appellate jurisdiction often turns on
how that challenge is framed.
See Hanson v. Denckla,
357 U. S. 235,
357 U. S. 244
(1958);
Memphis Natural Gas Co. v. Beeler, 315 U.
S. 649,
315 U. S.
650-651 (1942).
In the present case, appellants argued below "that the state
lower court jurisdiction over these adoptions was preempted by
plenary federal legislation." Brief for Appellant in No. 57,659
(Miss.Sup. Ct.), p. 5. Whether this formulation "squarely"
challenges the validity of the state adoption statute as applied,
see Japan Line, Ltd. v. County of Los Angeles,
441 U. S. 434,
441 U. S.
440-441 (1979), or merely asserts a federal right or
immunity, 28 U.S.C. § 1257(3), is a difficult question to which the
answer must inevitably be somewhat arbitrary. Since, in the near
future, our appellate jurisdiction will extend only to rare cases,
see Pub.L. 100-352, 102 Stat. 662, it is also a question
of little prospective importance. Rather than attempting to resolve
this question, therefore, we think it advisable to assume that the
appeal is improper, and to consider by writ of certiorari the
important question this case presents.
See Spencer v.
Texas, 385 U. S. 554,
385 U. S. 557,
n. 3 (1967). We therefore dismiss the appeal, treat the papers as a
petition for writ of certiorari, 28 U.S.C. § 2103, and grant the
petition. (For convenience, we will continue to refer to the
parties as appellant and appellees.)
[
Footnote 16]
"Reservation" is defined quite broadly for purposes of the ICWA.
See 25 U.S.C. § 1903(10). There is no dispute that the
Choctaw Reservation falls within that definition.
Section 1911(a) does not apply "where such jurisdiction is
otherwise vested in the State by existing Federal law." This
proviso would appear to refer to Pub.L. 280, 67 Stat. 588,
as
amended, which allows States under certain conditions to
assume civil and criminal jurisdiction on the reservations. Title
25 U.S.C. § 1918 permits a tribe in that situation to reassume
jurisdiction over child custody proceedings upon petition to the
Secretary of the Interior. The State of Mississippi has never
asserted jurisdiction over the Choctaw Reservation under Public Law
280.
See F. Cohen, Handbook of Federal Indian Law 362-363,
and nn. 122-125 (1982);
cf. United States v. John,
437 U. S. 634
(1978).
[
Footnote 17]
This conclusion is inescapable from a reading of the entire
statute, the main effect of which is to curtail state authority.
See especially §§ 1901, 1911-1916, 1918.
[
Footnote 18]
See also 124 Cong.Rec. 38103 (1978) (letter from Rep.
Morris K. Udall to Assistant Attorney General Patricia M. Wald)
("[S]tate courts and agencies and their procedures share a large
part of the responsibility" for the crisis threatening "the future
and integrity of Indian tribes and Indian families"); House Report,
at 19 ("Contributing to this problem has been the failure of State
officials, agencies, and procedures to take into account the
special problems and circumstances of Indian families and the
legitimate interest of the Indian tribe in preserving and
protecting the Indian family as the wellspring of its own future").
See also In re Adoption of Halloway, 732 P.2d at 969 (Utah
state court "quite frankly might be expected to be more receptive
than a tribal court to [Indian child's] placement with non-Indian
adoptive parents. Yet this receptivity of the non-Indian forum to
non-Indian placement of an Indian child is precisely one of the
evils at which the ICWA was aimed").
[
Footnote 19]
Some details of the
Baby Child case are taken from the
briefs in
Pino v. District Court, Bernalillo County,
O.T.1984, No. 84-248. That appeal was dismissed under this Court's
Rule 53,
472 U. S. 1001
(1985), following the appellant's successful collateral attack, in
the case cited in the text, on the judgment from which appeal had
been taken.
[
Footnote 20]
Nor is it inconceivable that a State might apply its law of
domicile in such a manner as to render inapplicable § 1911(a) even
to a child who had lived several years on the reservation, but was
removed from it for the purpose of adoption. Even in the less
extreme case, a state law definition of domicile would likely spur
the development of an adoption brokerage business. Indian children,
whose parents consented (with or without financial inducement) to
give them up, could be transported for adoption to States like
Mississippi, where the law of domicile permitted the proceedings to
take place in state court.
[
Footnote 21]
For this reason, the general rule that domicile is determined
according to the law of the forum,
see Restatement
(Second) of Conflict of Laws § 13 (1971) (hereinafter Restatement),
can have no application here.
[
Footnote 22]
We note also the likelihood that, had Congress intended a state
law definition of domicile, it would have said so. Where Congress
did intend that ICWA terms be defined by reference to other than
federal law, it stated this explicitly.
See § 1903(2)
("extended family member" defined by reference to tribal law or
custom); § 1903(6) ("Indian custodian" defined by reference to
tribal law or custom and to state law).
[
Footnote 23]
See also supra at
490 U. S. 34,
and n. 3.
[
Footnote 24]
In large part, the concerns that emerged during the
congressional hearings on the ICWA were based on studies showing
recurring developmental problems encountered during adolescence by
Indian children raised in a white environment.
See n. 1,
supra. See also 1977 Hearings at 114 (statement
of American Academy of Child Psychiatry); S.Rep. No. 95-597, p. 43
(1977) (hereinafter Senate Report). More generally, placements in
non-Indian homes were seen as "depriving the child of his or her
tribal and cultural heritage."
Id. at 45;
see
also 124 Cong.Rec. 38102-38103 (1978) (remarks of Rep.
Lagomarsino). The Senate Report on the ICWA incorporates the
testimony in this sense of Louis La Rose, chairman of the Winnebago
Tribe, before the American Indian Policy Review Commission:
"I think the cruelest trick that the white man has ever done to
Indian children is to take them into adoption courts, erase all of
their records and send them off to some nebulous family that has a
value system that is A-1 in the State of Nebraska and that child
reaches 16 or 17, he is a little brown child residing in a white
community, and he goes back to the reservation and he has
absolutely no idea who his relatives are, and they effectively make
him a non-person, and I think . . . they destroy him."
Senate Report at 43. Thus, the conclusion seems justified that,
as one state court has put it, "[t]he Act is based on the
fundamental assumption that it is in the Indian child's best
interest that its relationship to the tribe be protected."
In
re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz.,
at 204, 635 P.2d at 189.
[
Footnote 25]
While the statute itself makes clear that Congress intended the
ICWA to reach voluntary as well as involuntary removal of Indian
children, the same conclusion can also be drawn from the ICWA's
legislative history. For example, the House Report contains the
following expression of Congress' concern with both aspects of the
problem:
"One of the effects of our national paternalism has been to so
alienate some Indian [parents] from their society that they abandon
their children at hospitals or to welfare departments rather than
entrust them to the care of relatives in the extended family.
Another expression of it is the involuntary, arbitrary, and
unwarranted separation of families."
House Report, at 12.
[
Footnote 26]
The Bureau of Indian Affairs pointed out, in issuing nonbinding
ICWA guidelines for the state courts, that the terms "residence"
and "domicile" "are well defined under existing state law. There is
no indication that these state law definitions tend to undermine in
any way the purposes of the Act." 44 Fed.Reg. 67584, 67585 (1979).
The clear implication is that state law that
did tend to
undermine the ICWA's purposes could not be taken to express
Congress' intent. There is some authority for the proposition that
abandonment can effectuate a change in the child's domicile,
In
re Adoption of Halloway, 732 P.2d at 967, although this may
not be the majority rule.
See Restatement § 22, Comment e
(abandoned child generally retains the domicile of the
last-abandoning parent). In any case, as will be seen below, the
Supreme Court of Utah declined in the
Halloway case to
apply Utah abandonment law to defeat the purpose of the ICWA.
Similarly, the conclusory statement of the Supreme Court of
Mississippi that the twin babies had been "legally abandoned," 511
So. 2d at 921, cannot be determinative of ICWA jurisdiction.
There is also another reason for reaching this conclusion. The
predicate for the state court's abandonment finding was the
parents' consent to termination of their parental rights, recorded
before a judge of the state Chancery Court. ICWA § 103(a), 25
U.S.C. § 1913(a), requires, however, that such a consent be
recorded before "a judge of a court of competent jurisdiction."
See n 7,
supra. In the case of reservation-domiciled children, that
could be only the tribal court. The children therefore could not be
made nondomiciliaries of the reservation through any such state
court consent.
[
Footnote 27]
It appears, in fact, that all Choctaw women give birth off the
reservation, because of the lack of appropriate obstetric
facilities there.
See Juris. Statement 4, n. 2. In most
cases, of course, the mother and child return to the reservation
after the birth, and this would presumably be sufficient to make
the child a reservation domiciliary even under the Mississippi
court's theory. Application of the Mississippi domicile rule would,
however, permit state authorities to avoid the tribal court's
exclusive § 1911(a) jurisdiction by removing a newborn from an
allegedly unfit mother while in the hospital, and seeking to
terminate her parental rights in state court.
[
Footnote 28]
We were assured at oral argument that the Choctaw court has the
authority under the tribal code to permit adoption by the present
adoptive family, should it see fit to do so. Tr. of Oral Arg.
17.
JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY
join, dissenting.
The parents of these twin babies unquestionably expressed their
intention to have the state court exercise jurisdiction over them.
J.B. gave birth to the twins at a hospital 200 miles from the
reservation, even though a closer hospital was available. Both
parents gave their written advance consent to the adoption and,
when the adoption was later challenged by the Tribe, they
reaffirmed their desire that the Holyfields adopt the two children.
As the Mississippi Supreme Court found,
"the parents went to some efforts to prevent the children from
being placed on the reservation, as the mother arranged for their
birth and adoption in Gulfport Memorial Hospital, Harrison County,
Mississippi."
511 So. 2d
918, 921 (1987). Indeed, both parents appear before us today,
urging that Vivian Holyfield be allowed to retain custody of B.B
and G.B.
Page 490 U. S. 55
Because J.B.'s domicile is on the reservation and the children
are eligible for membership in the Tribe, the Court today closes
the state courthouse door to her. I agree with the Court that
Congress intended a uniform federal law of domicile for the Indian
Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§
1901-1963, and that domicile should be defined with reference to
the objectives of the congressional scheme.
"To ascertain [the term's] meaning, we . . . consider the
Congressional history of the Act, the situation with reference to
which it was enacted, and the existing judicial precedents, with
which Congress may be taken to have been familiar in at least a
general way."
District of Columbia v. Murphy, 314 U.
S. 441,
314 U. S. 449
(1941). I cannot agree, however, with the cramped definition the
Court gives that term. To preclude parents domiciled on a
reservation from deliberately invoking the adoption procedures of
state court, the Court gives "domicile" a meaning that Congress
could not have intended and distorts the delicate balance between
individual rights and group rights recognized by the ICWA.
The ICWA was passed in 1978 in response to congressional
findings that
"an alarmingly high percentage of Indian families are broken up
by the
removal, often unwarranted, of their children from
them by nontribal public and private agencies,"
and that
"the States, exercising their recognized jurisdiction over
Indian child custody proceedings through administrative and
judicial bodies, have often failed to recognize the essential
tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families."
25 U.S.C. § 1901(4), (5) (emphasis added). The Act is thus
primarily addressed to the unjustified removal of Indian children
from their families through the application of standards that
inadequately recognized the distinct Indian culture. [
Footnote 2/1]
Page 490 U. S. 56
The most important provisions of the ICWA are those setting
forth minimum standards for the placement of Indian children by
state courts and providing procedural safeguards to insure that
parental rights are protected. [
Footnote 2/2] The Act provides
Page 490 U. S. 57
that any party seeking to effect a foster care placement of, or
involuntary termination of parental rights to, an Indian child must
establish by stringent standards of proof that efforts have been
made to prevent the breakup of the Indian family, and that the
continued custody of the child by the parent is likely to result in
serious emotional or physical damage to the child. §§ 1912(d), (e),
(f). Each party to the proceeding has a right to examine all
reports and documents filed with the court, and an indigent parent
or custodian has the right to appointment of counsel. §§ 1912(b),
(c). In the case of a voluntary termination, the ICWA provides that
consent is valid only if given after the terms and consequences of
the consent have been fully explained, may be withdrawn at any time
up to the final entry of a decree of termination or adoption, and
even then may be collaterally attacked on the grounds that it was
obtained through fraud or duress. § 1913. Finally, because the Act
protects not only the rights of the parents but also the interests
of the tribe and the Indian children, the Act sets forth criteria
for adoptive, foster care, and preadoptive placements that favor
the Indian child's extended family or tribe, and that can be
altered by resolution of the tribe. § 1915.
The Act gives Indian tribes certain rights, not to restrict the
rights of parents of Indian children, but to complement and help
effect them. The Indian tribe may petition to transfer an action in
state court to the tribal court, but the Indian parent may veto the
transfer. § 1911(b). [
Footnote 2/3]
The Act
Page 490 U. S. 58
provides for a tribal right of notice and intervention in
involuntary proceedings, but not in voluntary ones. §§ 1911(c),
1912(a). [
Footnote 2/4] Finally,
the tribe may petition the court to set aside a parental
termination action upon a showing that the provisions of the ICWA
that are designed to protect parents and Indian children have been
violated. § 1914. [
Footnote
2/5]
While the Act's substantive and procedural provisions effect a
major change in state child custody proceedings, its jurisdictional
provision is designed primarily to preserve tribal sovereignty over
the domestic relations of tribe members and to confirm a developing
line of cases which held that the tribe's exclusive jurisdiction
could not be defeated by the temporary presence of an Indian child
off the reservation. The legislative history indicates that
Congress did not intend "to oust the States of their traditional
jurisdiction over Indian children falling within their geographic
limits." House Report, at 19; Wamser, Child Welfare Under the
Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L.Rev.
413, 416 (1980). The apparent intent of Congress was to overrule
such decisions as that in
In re Cantrell, 159 Mont. 66,
495 P.2d 179 (1972), in which the State placed an Indian child, who
had lived on a Reservation with his mother, in a foster home only
three days after he left the Reservation to accompany his father on
a trip. Jones, Indian Child Welfare: A Jurisdictional Approach, 21
Ariz.L.Rev. 1123, 1129 (1979). Congress specifically approved a
series of cases in which the state courts declined jurisdiction
over Indian children who were wards of the tribal court,
In re
Adoption of Buehl, 87 Wash. 2d
649,
555 P.2d
1334 (1976);
Wakefield v. Little Light, 276 Md. 333,
347 A.2d 228 (1975), or whose
Page 490 U. S. 59
parents were temporarily residing off the reservation,
Wisconsin Potowatomies of Hannahville Indian Community v.
Houston, 393 F.
Supp. 719 (WD Mich.1973), but exercised jurisdiction over
Indian children who had never lived on a reservation and whose
Indian parents were not then residing on a reservation,
In re
Greybull, 23 Ore.App. 674,
543 P.2d
1079 (1975);
see House Report, at 21. [
Footnote 2/6] It did not express any disapproval of
decisions such as that of the United States Court of Appeals for
the Ninth Circuit in
United States ex rel. Cobell v.
Cobell, 503 F.2d 790 (1974),
cert. denied, 421 U.S.
999 (1975), which indicated that a Montana state court could
exercise jurisdiction over an Indian child custody dispute because
the parents,
"by voluntarily invoking the state court's jurisdiction for
divorce purposes, . . . clearly submitted the question of their
children's custody to the judgment of the Montana state
courts."
503 F.2d at 795 (emphasis deleted).
The Report of the American Indian Policy Review Commission, an
early proponent of the ICWA, makes clear the limited purposes that
the term "domicile" was intended to serve:
"Domicile is a legal concept that does not depend exclusively on
one's physical location at any one given moment in time; rather it
is based on the apparent intention of permanent residency. Many
Indian families move back and forth from a reservation dwelling to
border communities or even to distant communities, depending on
employment
Page 490 U. S. 60
and educational opportunities. . . . In these situations, where
family ties to the reservation are strong, but the child is
temporarily off the reservation, a fairly strong legal argument can
be made for tribal court jurisdiction."
Report on Federal, State, and Tribal Jurisdiction 86 (Comm.
Print 1976). [
Footnote 2/7]
Although parents of Indian children are shielded from the
exercise of state jurisdiction when they are temporarily off the
reservation, the Act also reflects a recognition that allowing the
tribe to defeat the parents' deliberate choice of jurisdiction
would be conducive neither to the best interests of the child nor
to the stability and security of Indian tribes and families.
Section 1911(b), providing for the exercise of concurrent
jurisdiction by state and tribal courts when the Indian child is
not domiciled on the reservation, gives the Indian parents a veto
to prevent the transfer of a state court action to tribal court.
[
Footnote 2/8]
"By allowing the Indian parents to
Page 490 U. S. 61
'choose' the forum that will decide whether to sever the
parent-child relationship, Congress promotes the security of Indian
families by allowing the Indian parents to defend in the court
system that most reflects the parents' familial standards."
Jones, 21 Ariz.L.Rev. at 1141. As Mr. Calvin Isaac,
Tribal Chief of the Mississippi Band of Choctaw Indians, stated in
testimony to the House Subcommittee on Indian Affairs and Public
Lands with respect to a different provision:
"The ultimate responsibility for child welfare rests with the
parents, and we would not support legislation which interfered with
that basic relationship."
Hearings on S. 1214 before the Subcommittee on Indian Affairs
and Public Lands of the House Committee on Interior and Insular
Affairs, 95th Cong., 2d Sess., 62 (1978). [
Footnote 2/9]
Page 490 U. S. 62
If J.B. and W.J. had established a domicile off the Reservation,
the state courts would have been required to give effect to their
choice of jurisdiction; there should not be a different result when
the parents have not changed their own domicile, but have expressed
an unequivocal intent to establish a domicile for their children
off the Reservation. The law of abandonment, as enunciated by the
Mississippi Supreme Court in this case, does not defeat, but
serves, the purposes of the Act. An abandonment occurs when a
parent deserts a child and places the child with another with an
intent to relinquish all parental rights and obligations.
Restatement (Second) of Conflict of Laws § 22, Comment e (1971)
(hereinafter Restatement);
In re Adoption of
Halloway, 732 P.2d 962, 966
(Utah 1986). If a child is abandoned by his mother, he takes on the
domicile of his father; if the child is abandoned by his father, he
takes on the domicile of his mother. Restatement § 22, Comment e;
25 Am. Jur.2d Domicil § 69 (1966). If the child is abandoned by
both parents, he takes on the domicile of a person other than the
parents who stands
in loco parentis to him.
In re
Adoption of Halloway, supra, at 966;
In re Estate of
Moore, 68 Wash. 2d
792, 796,
415 P.2d
653, 656 (1966);
Harlan v. Industrial Accident Comm'n,
194 Cal. 352, 228 P. 654 (1924); Restatement § 22, Comment
i;
cf. In re Guardianship of D.L.L. and C.L.L., 291 N.W.2d
278,
282
(S.D.1980). [
Footnote 2/10] To be
effective, the intent to abandon or the actual physical abandonment
must be shown by clear and convincing evidence.
In re Adoption
of Halloway, supra, at 966;
C.S. v.
Smith, 483 S.W.2d
790, 793 (Mo. App.1972). [
Footnote 2/11]
Page 490 U. S. 63
When an Indian child is temporarily off the reservation, but has
not been abandoned to a person off the reservation, the tribe has
an interest in exclusive jurisdiction. The ICWA expresses the
intent that exclusive tribal jurisdiction is not so frail that it
should be defeated as soon as the Indian child steps off the
reservation. Similarly, when the child is abandoned by one parent
to a person off the reservation, the tribe and the other parent
domiciled on the reservation may still have an interest in the
exercise of exclusive jurisdiction. That interest is protected by
the rule that a child abandoned by one parent takes on the domicile
of the other. But when an Indian child is deliberately abandoned by
both parents to a person off the reservation, no purpose of the
ICWA is served by closing the state courthouse door to them. The
interests of the parents, the Indian child, and the tribe in
preventing the unwarranted removal of Indian children from their
families and from the reservation are protected by the Act's
substantive and procedural provisions. In addition, if both parents
have intentionally invoked the jurisdiction of the state court in
an action involving a non-Indian, no interest in tribal
self-governance is implicated.
See McClanahan v. Arizona State
Tax Comm'n, 411 U. S. 164,
411 U. S. 173
(1973);
Williams
v.
Page 490 U. S. 64
Lee, 358 U. S. 217,
358 U. S.
219-220 (1959);
Felix v. Patrick, 145 U.
S. 317,
145 U. S. 332
(1892).
The interpretation of domicile adopted by the Court requires the
custodian of an Indian child who is off the reservation to haul the
child to a potentially distant tribal court unfamiliar with the
child's present living conditions and best interests. Moreover, it
renders any custody decision made by a state court forever suspect,
susceptible to challenge at any time as void for having been
entered in the absence of jurisdiction. [
Footnote 2/12] Finally, it forces parents of Indian
children who desire to invoke state court jurisdiction to establish
a domicile off the reservation. Only if the custodial parent has
the wealth and ability to establish a domicile off the reservation
will the parent be able to use the processes of state court. I fail
to see how such a requirement serves the paramount congressional
purpose of "promot[ing] the stability and security of Indian tribes
and families." 25 U.S.C. § 1902.
Page 490 U. S. 65
The Court concludes its opinion with the observation that
whatever anguish is suffered by the Indian children, their natural
parents, and their adoptive parents because of its decision today
is a result of their failure to initially follow the provisions of
the ICWA.
Ante at
490 U. S. 53-54. By holding that parents who are
domiciled on the reservation cannot voluntarily avail themselves of
the adoption procedures of state court, and that all such
proceedings will be void for lack of jurisdiction, however, the
Court establishes a rule of law that is virtually certain to ensure
that similar anguish will be suffered by other families in the
future. Because that result is not mandated by the language of the
ICWA and is contrary to its purposes, I respectfully dissent.
[
Footnote 2/1]
The House Report found that "Indian families face vastly greater
risks of involuntary separation than are typical of our society as
a whole." H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House
Report). The Senate Report similarly states that the Act was
motivated by
"reports that an alarmingly high percentage of Indian children
were being separated from their natural parents through the actions
of nontribal government agencies."
S.Rep. No. 95-597, p. 11 (1977).
See also 124 Cong.Rec.
12532 (1978) (remarks of Rep. Udall) ("The record developed by the
Policy Review Commission, by the Senate Interior Committee in the
94th Congress; and by the Senate Select Committee on Indian Affairs
and our own Interior Committee in the 95th Congress has disclosed
what almost amounts to a callous raid on Indian children. Indian
children are removed from their parents and families by State
agencies for the most specious of reasons in proceedings foreign to
the Indian parents");
id. at 38102 (remarks of Rep. Udall)
("Studies have revealed that about 25 percent of all Indian
children are removed from their homes and placed in some foster
care or adoptive home or institution");
id. at 38103
(remarks of Rep. Lagomarsino) ("For Indians generally and tribes in
particular, the continued wholesale removal of their children by
nontribal government and private agencies constitutes a serious
threat to their existence as ongoing, self-governing communities");
Hearing on S. 1214 before the Senate Select Committee on Indian
Affairs, 95th Cong., 1st Sess., 1 (1977) ("It appears that for
decades Indian parents and their children have been at the mercy of
arbitrary or abusive action of local, State, Federal and private
agency officials. Unwarranted removal of children from their homes
is common in Indian communities").
[
Footnote 2/2]
"The purpose of the bill (H.R. 12533), introduced by Mr. Udall
et al., is to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by establishing minimum Federal standards for the
removal of Indian children from their families and the placement of
such children in foster or adoptive homes or institutions which
will reflect the unique values of Indian culture and by providing
for assistance to Indian tribes and organizations in the operation
of child and family service programs."
House Report, at 8 (footnote omitted).
See also 124
Cong.Rec. 38102 (1978) (remarks of Rep. Udall) ("[The Act]
clarifies the allocation of jurisdiction over Indian child custody
proceedings between Indian tribes and the States. More importantly,
it establishes minimum Federal standards and procedural safeguards
to protect Indian families when faced with child custody
proceedings against them in State agencies or courts").
[
Footnote 2/3]
The statute provides in part:
"(b) Transfer of proceedings; declination by tribal court"
"In any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child's tribe, the
court, in the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe, absent objection
by either parent, upon the petition of either parent or the Indian
custodian or the Indian child's tribe: Provided, That such transfer
shall be subject to declination by the tribal court of such
tribe."
25 U.S.C. § 1911.
[
Footnote 2/4]
See 44 Fed.Reg. 67584, 67586 (1979) ("The Act mandates
a tribal right of notice and intervention in involuntary
proceedings but not in voluntary ones").
[
Footnote 2/5]
Significantly, the tribe cannot set aside a termination of
parental rights on the ground that the adoptive placement
provisions of § 1915, favoring placement with the tribe, have not
been followed.
[
Footnote 2/6]
None of the cases cited approvingly by Congress involved a
deliberate abandonment. In
Wakefield v. Little Light, 276
Md. 333, 347 A.2d 228 (1975), the court upheld exclusive tribal
jurisdiction where it was clear that there was no abandonment. In
Wisconsin Potowatomies of Hannahville Indian Community v.
Houston, 393 F.
Supp. 719 (WD Mich.1973), there was no abandonment, the
children had lived on the Reservation and were members of the
Indian Tribe, and the children's clothing and toys were at a home
on the Reservation that continued to be available to them. Finally,
in
In re Adoption of Buehl, 87 Wash.
2d 649,
555 P.2d
1334 (1976), the child was a ward of the tribal court and an
enrolled member of the Tribe.
[
Footnote 2/7]
In a letter to the House of Representatives, the Department of
Justice explained its understanding that the provision was
addressed to the involuntary termination of parental rights in
tribal members by state agencies unaware of exclusive tribal
jurisdiction:
"As you may be aware, the courts have consistently recognized
that tribal governments have exclusive jurisdiction over the
domestic relationships of tribal members located on reservations,
unless a State has assumed concurrent jurisdiction pursuant to
Federal legislation such as Public Law 83-280. It is our
understanding that this legal principle is often ignored by local
welfare organizations and foster homes in cases where they believe
Indian children have been neglected, and that S. 1214 is designed
to remedy this, and to define Indian rights in such cases."
House Report at 35.
[
Footnote 2/8]
The explanation of this subsection in the House Report reads as
follows:
"Subsection (b) directs a State court, having jurisdiction over
an Indian child custody proceeding to transfer such proceeding,
absent good cause to the contrary, to the appropriate tribal court
upon the petition of the parents or the Indian tribe. Either parent
is given the right to veto such transfer. The subsection is
intended to permit a State court to apply a modified doctrine of
forum non conveniens, in appropriate cases, to insure that
the rights of the child as an Indian, the Indian parents or
custodian, and the tribe are fully protected."
Id. at 21. In commenting on the provision, the
Department of Justice suggested that the section should be
clarified to make it perfectly clear that a state court need not
surrender jurisdiction of a child custody proceeding if the Indian
parent objected. The Department of Justice letter stated:
"Section 101(b) should be amended to prohibit clearly the
transfer of a child placement proceeding to a tribal court when any
parent or child over the age of 12 objects to the transfer."
Id. at 32.
Although the specific suggestion made by the Department of
Justice was not in fact implemented, it is noteworthy that there is
nothing in the legislative history to suggest that the recommended
change was in any way inconsistent with any of the purposes of the
statute.
[
Footnote 2/9]
Chief Isaac elsewhere expressed a similar concern for the rights
of parents with reference to another provision.
See
Hearing,
supra, n. 1, at 158 (Statement on behalf of
National Tribal Chairmen's Association) ("We believe the tribe
should receive notice in all such cases but where the child is
neither a resident nor domiciliary of the reservation intervention
should require the consent of the natural parents or the blood
relative in whose custody the child has been left by the natural
parents. It seems there is a great potential in the provisions of
section 101(c) for infringing parental wishes and rights").
[
Footnote 2/10]
The authority of a State to exercise jurisdiction over a child
in a child custody dispute when the child is physically present in
a State and has been abandoned is also recognized by federal
statute.
See Parental Kidnaping Prevention Act of 1980, 94
Stat. 3569, 28 U.S.C. . § 1738A(c)(2);
see also Uniform
Child Custody Jurisdiction Act, 9 U.L.A. § 3 (1988).
[
Footnote 2/11]
The Court suggests that there could be no legally effective
abandonment because the parents consented to termination of their
parental rights before a judge of the state court, and not a tribal
court judge.
Ante at
490 U. S. 51, n.
26. That suggestion ignores the findings of the State Supreme Court
that the natural parents did virtually everything they could do to
abandon the children to persons outside the reservation:
"the Indian twins have never resided outside of Harrison County,
Mississippi, and were voluntarily surrendered and legally abandoned
by the natural parents to the adoptive parents, and it is
undisputed that the parents went to some efforts to prevent the
children from being placed on the reservation, as the mother
arranged for their birth and adoption in Gulfport Memorial
Hospital, Harrison County, Mississippi."
511 So. 2d
918, 921 (Miss.1987). In any event, even a consent to adoption
that does not meet statutory requirements may be effective to
constitute an abandonment and change the minor's domicile.
See
Wilson v. Pierce, 14 Utah 2d 317, 321,
383 P.2d 925,
927 (1963); H. Clark, Law of Domestic Relations in the United
States 633 (1968).
[
Footnote 2/12]
The facts of
In re Adoption of Halloway, 732 P.2d 962
(Utah 1986), which the Court cites approvingly,
ante at
490 U. S. 52-53,
vividly illustrate the problem. In that case, the mother, a member
of an Indian Tribe in New Mexico voluntarily abandoned an Indian
child to the custody of the child's maternal aunt off the
Reservation with the knowledge that the child would be placed for
adoption in Utah. The mother learned of the adoption two weeks
after the child left the Reservation, and did not object and, two
months later, she executed a consent to adoption. Nevertheless,
some two years after the petition for adoption was filed, the
Indian Tribe intervened in the proceeding and set aside the
adoption. The Tribe argued successfully that, regardless of whether
the Indian parent consented to it, the adoption was void because
she resided on the Reservation, and thus the tribal court had
exclusive jurisdiction. Although the decision in
Halloway,
and the Court's approving reference to it, may be colored somewhat
by the fact that the mother in that case withdrew her consent (a
fact which would entitle her to relief even if there were only
concurrent jurisdiction,
see 25 U.S.C. § 1913(c)), the
rule set forth by the majority contains no such limitation. As the
Tribe acknowledged at oral argument, any adoption of an Indian
child effected through a state court will be susceptible of
challenge by the Indian tribe no matter how old the child and how
long it has lived with its adoptive parents. Tr. of Oral Arg.
15.