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109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) Page 1
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[1] Federal Courts 417 170Bk417 Most Cited Cases (Formerly 209k6(2)) Though term "domicile" in key jurisdictional provision of Indian Child Welfare Act is not statutorily defined, Congress clearly intended uniform federal law of domicile for Act and did not consider definition of that term to be matter of state law. Indian Child Welfare Act of 1978, 2-403, 101(a), 25 U.S.C.A. 1901-1963, 1911(a). [2] Domicile 2 135k2 Most Cited Cases "Domicile" is not necessarily synonymous with "residence" and one can reside in one place but be domiciled in another. [3] Domicile 1 135k1 Most Cited Cases For adults, "domicile" is established by physical presence in place in connection with certain state of mind concerning one's intent to remain there. [4] Domicile 3 135k3 Most Cited Cases [4] Domicile 4(1) 135k4(1) Most Cited Cases One acquires "domicile of origin" at birth and that domicile continues until new one ("domicile of choice") is acquired. [5] Domicile 5 135k5 Most Cited Cases Most minors are legally incapable of forming requisite intent to establish domicile, and their domicile is thus determined by that of their parents; illegitimate child's domicile is traditionally that of its mother. [6] Domicile 5 135k5 Most Cited Cases [6] Indians 6.10 209k6.10 Most Cited Cases (Formerly 209k32(7)) Children born out-of-wedlock to parents who were enrolled members of Choctaw Indian Tribe and residents and domiciliaries of Choctaw reservation in Mississippi were "domiciled" on that reservation
Supreme Court of the United States MISSISSIPPI BAND OF CHOCTAW INDIANS, Appellant v. Orrey Curtiss HOLYFIELD, et ux., J.B., Natural Mother and W.J., Natural Father. No. 87-980. Argued Jan. 11, 1989. Decided April 3, 1989. Petition was filed for adoption of twin illegitimate babies whose parents were enrolled members of Choctaw Indian Tribe and residents and domiciliaries of tribal reservation in Mississippi. Indian band moved to vacate and set aside decree of adoption awarding those children to adoptive parents. The Chancery Court, Harrison County, Jason H. Floyd, Jr., Chancellor, overruled motion to vacate and set aside decree of adoption. On appeal, the Mississippi Supreme Court, Griffin, J., 511 So.2d 918, affirmed. Plenary review was granted. The Supreme Court, Justice Brennan, held that: (1) though term "domicile" in key jurisdictional provision of Indian Child Welfare Act was not statutorily defined, Congress did not intend for state courts to define that term as matter of state law, and (2) children were "domiciled" on reservation within meaning of Act's exclusive tribal jurisdiction provision even though they were never physically present on reservation themselves, and Chancery Court was without jurisdiction to enter adoption decree even though children were "voluntarily surrendered" for adoption. Reversed and remanded. Justice Steven dissented and filed opinion in which Chief Justice Rehnquist and Justice Kennedy joined. West Headnotes
2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) within meaning of Indian Child Welfare Act's exclusive tribal jurisdiction provision even though they themselves were never physically present on reservation, and Mississippi Chancery Court thus lacked jurisdiction to enter adoption decree even though children were "voluntarily surrendered" for adoption. Indian Child Welfare Act of 1978, 2403, 101(a), 25 U.S.C.A. 1901-1963, 1911(a). **1598 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. *30 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, **1599 and the Chancery Court properly exercised jurisdiction over the adoption proceedings. Held: The twins were "domiciled" on the Tribe's

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) scheme simply by giving birth and placing the child for adoption off the reservation. Pp. 1607-1611. 511 So.2d 918 (Miss.1987), 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. 1611. Edwin R. Smith argued the cause and filed briefs for appellant. *32 Edward O. Miller argued the cause and filed a brief for appellees.* * Briefs of amici curiae urging reversal were filed for the Association of American Indian Affairs, Inc., et al. by Bertram E. Hirsch and Jack F. Trope; for the Menominee Indian Tribe of Wisconsin by Kathryn L. Tierney; for the Navajo Nation by Donald R. Wharton; and for the Swinomish Tribal Community et al. by Jeanette Wolfley, Craig J. Dorsay, and Richard and Dauphinais. 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-**1600 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 nonIndian 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

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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., *33 at 15; see also H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report), U.S.Code Cong. & Admin.News 1978, pp. 7530, 7531. 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, [FN1] as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings. FN1. 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.

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imposed on state courts is that of 1915(a), which, absent "good cause" to the contrary, mandates *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, U.S.Code Cong. & Admin.News 1978, at 7546. 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, middleclass standard which, in many cases, forecloses placement with [an] Indian family." Id., at 24, U.S.Code Cong. & Admin.News 1978, at 7546. [FN6] FN6. 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. 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 *38 County. Record 8-10. [FN7] W.J. signed a similar form. [FN8] **1603 On January 16, appellees Orrey and Vivian Holyfield

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) [FN9] 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. [FN10] Despite the court's apparent awareness of the ICWA, [FN11] the adoption decree contained no reference to it, nor to the infants' Indian background. FN7. 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. FN8. 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. FN9. Appellee Orrey Holyfield died during the pendency of this appeal. FN10. 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. FN11. 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. Two months later the Tribe moved in the Chancery

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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. [FN12] On July 14, 1986, the court overruled the motion, *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. FN12. 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 statecourt 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." 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.

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) *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." **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. [FN13] FN13. 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, at 921.

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*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, [FN14] we granted plenary review. 486 U.S. 1021, 108 S.Ct.1993, 100 L.Ed.2d 225 (1988). [FN15] We now reverse. FN14. 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, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). FN15. 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 Leland Stanford Junior University, 489 U.S. 468, 473-474, n. 4, 109 S.Ct. 1248, 1252, n. 4, 103 L.Ed.2d 488 (1989); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 288-290, 42 S.Ct. 106, 107-108, 66 L.Ed. 239 (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, 244, 78 S.Ct. 1228, 1234, 2 L.Ed.2d 1283 (1958); Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 650-651, 62 S.Ct. 857, 859-860, 86 L.Ed. 1090 (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

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) 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, 440-441, 99 S.Ct. 1813, 1817, 60 L.Ed.2d 336 (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, 557, n. 3, 87 S.Ct. 648, 650, n. 3, 17 L.Ed.2d 606 (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.) *42 II Tribal jurisdiction over Indian child custody proceedings is not a novelty of the **1605 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, Sixteenth Judicial District of Montana, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (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.

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See also Natural Gas Utility Dist., supra, 402 U.S., at 603-604, 91 S.Ct., at 1749. 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 *45 enactment, that Congress was concerned with the rights of Indian families and Indian communities vis--vis state authorities. [FN17] 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"). [FN18] Under **1607 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. FN17. 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. FN18. 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, U.S.Code Cong. & Admin.News 1978, at 7541 ("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
109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) child's] placement with non-Indian adoptive parents. Yet this receptivity of the nonIndian forum to non-Indian placement of an Indian child is precisely one of the evils at which the ICWA was aimed"). 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), *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 2 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). [FN19] 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. [FN20] 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. [FN21] FN19. Some details of the Baby Child case are taken from the briefs in Pino v. District Court, Bernalillo County, 469 U.S. 1031, 105 S.Ct. 501, 83 L.Ed.2d 393 (1984). That appeal was dismissed under this Court's Rule 53, 472 U.S. 1001, 105 S.Ct. 2693, 86 L.Ed.2d 709 (1985), following the appellant's successful collateral attack, in the case cited in the text, on the judgment from which appeal had been taken. FN20. 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

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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. FN21. 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. *47 We therefore think it beyond dispute that Congress intended a uniform federal law of domicile for the ICWA. [FN22] FN22. 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). 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 **1608 expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983). We do so, of course, in the light of the " 'object and policy' " of the statute. Mastro Plastics

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956), quoting United States v. Heirs of Boisdor, 8 How. 113, 122, 12 L.Ed. 1009 (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 *48 to the extent that they are not inconsistent with the objectives of the congressional scheme. [2][3][4][5] "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, 62 S.Ct. 303, 86 L.Ed. 329 (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, 424, 59 S.Ct. 563, 576, 83 L.Ed. 817 (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, 192 Iowa, 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, 211, 54 S.Ct. 181, 185, 78 L.Ed. 269 (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, 68 Wash.2d, at 796, 415 P.2d, at 656; Restatement 14(2), 22, Comment c; 25 Am.Jur.2d, Domicile 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicile of

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) 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. FN4. 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"). FN5. 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. 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, U.S.Code Cong. & Admin.News 1978, at 7541; 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 *59 parents were temporarily residing off the reservation, Wisconsin Potowatomies **1614 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 Or.App. 674, 543 P.2d 1079 (1975); see House Report, at 21, U.S.Code Cong. & Admin.News 1978, at 7543. [FN6] It did not express any disapproval of decisions such as that

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of the United States Court of Appeals for the Ninth Circuit in United States ex rel. Cobell v. Cobell, 503 F.2d 790 (9th Cir.1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (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). FN6. 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. 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 *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). [FN7] FN7. 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

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Indian parents or custodian, and the tribe are fully protected." Id., at 21, U.S.Code Cong. & Admin.News 1978, at 7544. 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, U.S.Code Cong. & Admin.News 1978, at 7554. 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. "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). [FN9] FN9. 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"). *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

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) 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). [FN10] 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 **1616 966; C.S. v. Smith, 483 S.W.2d 790, 793 (Mo.App.1972). [FN11] FN10. 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). FN11. 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 1610, 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: "[T]he 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

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arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So.2d 918, 921 (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). *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, 173, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973); Williams v. *64 Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1959); Felix v. Patrick, 145 U.S. 317, 332, 12 S.Ct. 862, 867, 36 L.Ed. 719 (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. [FN12] Finally, it forces parents of Indian **1617 children who desire to invoke statecourt jurisdiction to establish a domicile off the reservation. Only if the custodial parent has the

109 S.Ct. U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 (Cite as: 490 U.S. 30, 109 S.Ct. 1597) 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. FN12. The facts of In re Adoption of Halloway, 732 P.2d 962 (Utah 1986), which the Court cites approvingly, ante, at 16101611, 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. *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 1609. 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

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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. 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, 57 USLW 4409 Briefs and Other Related Documents (Back to top) 1988 WL 1026024 (Appellate Brief) Reply Brief of the Appellant (Dec. 23, 1988) 1988 WL 1026021 (Appellate Brief) Appellees' Brief (Dec. 01, 1988) 1988 WL 1026011 (Appellate Brief) Motion for Leave to File Amicus Curiae Brief and Brief of Amicus Curiae Menominee Indian Tribe of Wisconsin (Jul. 29, 1988) 1988 WL 1026016 (Appellate Brief) Motion of Association on American Indian Affairs, Inc., Kalispel Tribe of Indians of the Kalispel Reservation, Washington, the Mescalero Apache Tribe of the Mescalero Apache Reservation, New Mexico, Pueblo of San Ildefonso of New Mexico, Pueblo of Sa nta Ana of New Mexico, Pueblo of Santo Domingo of New Mexico, Pueblo of Tesuque of New Mexico, Sac and Fox Tribe of the Mississippi in Iowa of the Mesquakie Settlement, Iowa, and Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Indian Reservation, (Jul. 29, 1988) 1988 WL 1026004 (Appellate Brief) Navajo Nation's Motion for Leave to File Brief as Amicus Curiae and Brief of Navajo Nation, Amicus Curiae, in Support of Appellant (Jul. 28, 1988) 1988 WL 1026010 (Appellate Brief) Motion For Leave to File Brief of Amici And Brief of Amici Curiae Swinomish Tribal Community, ShoshoneBannock Tribes, and Turtle Mountain Band of Chippewa Indians in Support of Appellant (Jul. 28, 1988) 1987 WL 880195 (Appellate Brief) Brief for the Appellant (Oct. Term 1987) END OF DOCUMENT