(Cite
as: 167 Ill.2d 250, 657 N.E.2d 935, 212 Ill.Dec. 590)
Supreme
Court of Illinois.
In
re ADOPTION OF S.S. & R.S.
(Leslie
Scarlotte Tubridy et al., Appellants,
v.
Betty
Jo Iron Bear et al., Appellees).
No.
76486.
Oct. 19, 1995.
Heiple, J., concurred in judgment
and filed opinion in which Bilandic, C.J., and Miller, J., joined.
McMorrow, J., filed dissenting
opinion in which Freeman and Nickels, JJ., joined.
ICWA
applied to proceeding, brought by paternal aunt and her husband,
to adopt and to terminate mother's parental rights in minor
children who had resided with
non-Indian father off reservation until father's death and whose mother
was member of Indian tribe and was domiciled on reservation.
(Per Harrison, J., with three Justices concurring in judgment.) Indian
Child Welfare Act of 1978, §§ 2
et seq., 4(1), (4)(b), 25 U.S.C.A. §§ 1901
et seq., 1903(1), (4)(b).
Domicile
of adults is established by physical presence in a place
in connection with intention to remain there, while domicile of
minors is usually determined by that of their parents, as
most minors are legally incapable of forming requisite intent to
establish domicile. Restatement (Second) of Conflict of Laws §§ 11-23.
Traditionally,
in case of children born out-of-wedlock, child takes domicile of
mother.
Domicile
of children of unmarried parents whose father had sole physical
custody was, prior to father's death, that of the father.
(Per Harrison, J., with three Justices concurring in judgment.)
Upon
death of their father, who had sole physical custody, domicile
of children of unmarried parents would revert to that of
their surviving mother, absent finding that mother had abandoned children,
in which case, if no legal guardian of children's person
had been appointed, children would take domicile of persons who
stood in loco parentis to them and with whom they
lived. (Per Harrison, J., with three Justices concurring in judgment.)
Restatement (Second) of Conflict of Laws § 22
comments b, e, i.
Use
of doctrine of abandonment by Native American parents, as part
of scheme to facilitate adoption of their children by non-Indians
while parents remain domiciliaries of reservation, would undermine purpose of
ICWA and weaken tribe's ability to assert its interest in
its children and, thus, in such circumstances, child left parentless
as result of abandonment will nonetheless take domicile of parents
for purpose of section of ICWA conferring exclusive tribal court
jurisdiction over child custody proceeding involving Indian child domiciled within
reservation. (Per Harrison, J., with three Justices concurring in judgment.)
Indian Child Welfare Act of 1978, §§ 2
et seq., 101(a), 25 U.S.C.A. §§ 1901
et seq., 1911(a); Restatement (Second) Conflict of Laws § 22
comments e, i.
Rule
in Holyfield,
that Native American parents domiciled on reservation may not use
common law abandonment doctrine to defeat tribal court jurisdiction under
ICWA in order to facilitate adoption of their children by
non-Indians, did not apply to proceeding to terminate parental rights
of unmarried Indian mother, domiciled on reservation, which was brought
by paternal relatives seeking to adopt children of deceased non-Indian
custodial father; mother sought to prevent rather than facilitate adoption
of her children by non-Indians in filing motion to transfer
jurisdiction to tribal court, and, therefore, application of doctrine that
children's domicile would revert to that of paternal relatives, with
whom they lived, if mother was found by circuit court
to have abandoned them could do no possible violence to
purposes
of
ICWA. (Per Harrison, J., with three Justices concurring in judgment.)
Indian Child Welfare Act of 1978, §§ 2
et seq., 101(a, b), 25 U.S.C.A. §§ 1901
et seq., 1911(a, b); Restatement (Second) Conflict of Laws § 22
comments
b, e, i.
For
purpose of establishing domicile, abandonment occurs when parent deserts child
or when parent gives custody of child to another with
intention of relinquishing parental rights and obligations. (Per Harrison, J.,
with three Justices concurring in judgment.)
To
determine whether abandonment has taken place for purpose of establishing
domicile of minor child, rules of the forum are normally
applied. (Per Harrison, J., with three Justices concurring in judgment.)
Restatement (Second) of Conflict of Laws § 22
comment e.
In
order to determine domicile, for purpose of ICWA jurisdictional provision,
of children of unmarried non-Indian father, who resided off reservation
and had physical custody until his death, and surviving Indian
mother who was tribal member domiciled on reservation, question whether
mother had abandoned children was threshold issue requiring remand to
circuit court for abandonment determination under state law; children would
be deemed domiciliaries of reservation if mother was found not
to have abandoned them, and tribe would thus have exclusive
jurisdiction over termination and adoption proceeding brought by children's paternal
relatives, but if abandonment was found, tribal court would have
concurrent but presumptive jurisdiction which could be defeated if circuit
court found good cause to deny transfer. (Per Harrison, J.,
with three Justices concurring in judgment.) Indian Child Welfare Act
of 1978, § 101(a,
b), 25 U.S.C.A. § 1911(a,
b); Restatement (Second) of Conflict of Laws § 22
comments e, i.
Under
nonbinding guidelines promulgated by Bureau of Indian Affairs to assist
state
courts in determining what constitutes "good cause" to deny request
to transfer child custody dispute to tribal court under concurrent
tribal court jurisdictional provision of ICWA, "good cause" exists if
evidence could not be presented in tribal court without undue
hardship to parties or witnesses. (Per Harrison, J., with three
Justices concurring in judgment.) Indian Child Welfare Act of 1978,
§ 101(b),
25 U.S.C.A. § 1911(b).
As
bulk of evidence and majority of witnesses necessary to proceeding
to terminate parental rights, brought by paternal relatives of deceased
non-Indian father
against surviving Indian mother, were located in Illinois, transfer of
jurisdiction to tribal court on reservation 1,100 miles from area
where children resided with relatives would constitute undue hardship and,
thus, if mother was found on remand to have abandoned
children and their domicile was thereby determined to remain that
of paternal relatives with whom they lived, circuit court would
have "good cause" under ICWA to deny transfer to tribal
court and to retain jurisdiction over termination and adoption proceeding.
(Per Harrison, J., with three Justices concurring in judgment.) Indian
Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
**937
***592
*251
Bruce D. Strom (argued), Strom & Repay, and Richard P.
Bingham, Juergensmeyer, Strain & Associates, Elgin, for appellants.
Kathryn McGowan Bettcher, Sarah Megan and Bernard H. Shapiro, Prairie
State Legal Services, Inc., St. Charles, for appellee Betty Jo
Iron Bear.
Gary M. Beaudry, Williston, North Dakota, for appellees Fort Peck
Assiniboine and Sioux Tribes.
Carole J. Grahn-Hayes, Geneva, for Guardian Barbara Carlson.
Justice HARRISON delivered the judgment of the court and the
following opinion:
This appeal arises from a proceeding involving termination of the
parental rights of a Native American Indian mother, Betty Jo
Iron Bear, and the adoption of her minor children, S.S.
and R.S., by two of their non-Indian relatives, Leslie and
Patrick Tubridy. The issue before us is whether the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901
et
seq.
(1988)) requires the cause to be transferred to the tribal
court of the Fort Peck tribe, on whose reservation Iron
Bear is domiciled, even though the children's non-Indian father had
been granted sole physical custody of them prior to *252
his death and the allegations of the Tubridys' petition, if
proven by clear and convincing evidence, would be sufficient to
establish that Iron Bear had abandoned the children.
Following a hearing, the circuit court of Kane County denied
motions by Iron Bear and the Fort Peck tribe to
have the cause transferred to the tribal court. On an
interlocutory appeal pursuant to Supreme Court Rule 306(a)(1)(v
) (134 Ill.2d R. 306(a)(1)(v
)), a divided appellate court held that the tribal **938
***593
court had exclusive jurisdiction over the matter under section 1911
of the ICWA (25 U.S.C. § 1911
(1988)). It therefore reversed and remanded with directions to transfer
the cause to that court. (252 Ill.App.3d 33, 190 Ill.Dec.
802, 622 N.E.2d 832.) We granted the Tubridys' petition for
leave to appeal (145 Ill.2d R. 315)
and now reverse and remand to the circuit court for
further proceedings with respect to the question of the children's
domicile.
There is no dispute that Iron Bear is a member
of the Fort Peck tribe and lives on the Fort
Peck reservation in Poplar, Montana. She is the biological mother
of S.S. and R.S., who were fathered by Richard S.,
a non-Indian. Richard S. died on November 18, 1992, of
a disease he contracted from Iron Bear. The two were
never married.
Although S.S. and R.S. are enrolled members of the tribe,
they have been raised predominantly in Illinois by Richard and
his family. Iron Bear has never played more than a
sporadic role in their lives. In 1990, Richard filed a
parentage action in Kane County which resulted in the approval
of a joint custody and parenting agreement pursuant to which
Richard was awarded physical custody of the children for 10
months of the year. Although Iron Bear was awarded physical
custody of them for the remaining two months, the children
visited the Fort Peck reservation only once after the agreement
was reached.
*253
In April 1992, the circuit court of Kane County granted
a petition by Richard for the termination of Iron Bear's
physical custody rights to the children. Iron Bear claims the
order was entered by default because she was unable to
appear due to indigence, but the Tubridys say this is
not so. They assert that despite her poverty, Iron Bear
has consistently had legal representation.
Until shortly before Richard's death, the children resided with him
in Elgin. When Richard became too ill to care for
the children and himself, the three moved in with one
of Richard's sisters, Shelly S., in Carpentersville, where, it appears,
the children are still living. Richard was not a Native
American and did not associate with any Indian tribe. In
addition, neither child has had any significant interaction with an
Indian tribe beyond their one visit to the reservation.
Six days after Richard's death, the Tubridys filed a petition
to terminate Iron Bear's parental rights and to adopt the
children, as Richard had requested in his will. Leslie Tubridy
is another of Richard's sisters, and she and Patrick are
the paternal aunt and uncle of S.S. and R.S. The
basis they asserted for termination of parental rights was that
Iron Bear was an unfit parent. The Tubridys charged that
Iron Bear had abandoned the children during the two years
prior to the adoption proceedings. Before that time, the Tubridys
alleged, she engaged in open and notorious fornication, habitually abused
alcohol, and failed to provide the children with adequate food,
clothing and shelter even though she was physically and financially
able to do so.
Iron Bear responded by filing a petition for an emergency
order of protection. In that petition she asserted that she
had traveled to Illinois upon learning of Richard's death, but
that Shelly S. had refused to allow her to see
the children or to disclose their whereabouts. *254
She further claimed,
upon information and belief, that the Turbidys had fled with
the children to the Tubridy home in Ohio. As a
result, the court entered an order requiring immediate return of
the children to Illinois, and there is no dispute that
they are now back in this State.
At the same time she sought the protective order, Iron
Bear moved to transfer jurisdiction of the adoption proceeding to
the Fort Peck tribal court in Poplar, Montana, and to
dismiss the State-court proceeding. Shortly thereafter, the tribe filed a
substantially identical motion. The motions invoked section 1911(a) of the
ICWA, which states that the tribe has "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." (25 U.S.C. § 1911(a)
(1988).) Iron Bear and the tribe argued that S.S. and
R.S. are "Indian children," as that term is defined in
section 1903(4) of the Act (25 U.S.C. ***594
**939
§ 1903(4)
(1988)) and that, like Iron Bear, both children are enrolled
members of the Fort Peck tribe, a federally recognized "Indian
tribe," as defined by section 1903(8) of the ICWA (25
U.S.C. § 1903(8)
(1988)). Iron Bear alleged that because she is the sole
parent of S.S. and R.S. and because she is domiciled
on the Fort Peck reservation, the domicile of the children
is also on the reservation (Mississippi
Band of Choctaw Indians v. Holyfield
(1989), 490
U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29), and that
the tribe therefore has exclusive jurisdiction over the matter of
the children's adoption.
In their response, the Tubridys contended that the ICWA is
inapplicable. They argued that the purpose of the Act is
to prevent the breakup of Indian families, and that S.S.
and R.S. are not domiciliaries of an Indian *255
reservation or part of an Indian family. They alleged that
R.S. was born in Elgin, Illinois, and that both R.S.
and S.S. had lived substantially all of their lives there
with their non-Indian father, who did not associate with or
encourage the children's association with an Indian tribe. The Tubridys
claimed that the children's part-Indian ancestry has no relation to
their average suburban upbringing because neither child had ever resided
on or near an Indian reservation for any significant period
of time or had any significant contact or interaction with
an Indian tribe. According to the Tubridys, jurisdiction belongs in
the State court because Richard had sought and obtained sole
physical custody of the children and had stated prior to
his death that he did not want Iron Bear or
her relatives to obtain custody of the children, which actions
constituted a "parental objection" under section 1911(b) of the ICWA
to the transfer of jurisdiction to the tribal court. The
Tubridys also argued that the ICWA permits State courts to
retain jurisdiction if there is "good cause," and that the
facts of this case establish that the best interests of
the children constitute such "good cause."
After arguments on the issue of jurisdiction, the circuit court
denied the motions to transfer, finding that the children are
not and have never been domiciled on the reservation and
that the ICWA was inapplicable. The appellate court, with one
justice dissenting, held that the provisions of the ICWA did
apply here and that the children were domiciliaries of the
reservation. The court therefore reversed and remanded the cause to
the trial court with directions to transfer jurisdiction to the
Fort Peck tribal court.
We begin our review of the case with the provisions
of the ICWA. That legislation was enacted by Congress in
1978 in response to extensive evidence indicating that large numbers
of Indian children were being *256
separated from their families and their tribes and were being
placed in non-Indian homes through State foster care placement and
adoption proceedings. (Holyfield,
490 U.S. at 32, 109 S.Ct. at 1600, 104 L.Ed.2d
at 36.) This practice caused serious harm to the Indian
children, their parents and their tribes.
Evidence at congressional hearings included testimony concerning problems experienced by
the children during adolescence, such as difficulty coping in a
white society even where they had been raised in a
purely white environment. There was also considerable emphasis during the
hearings on how placements of Indian children into non-Indian families
adversely affected the tribes' ability to function as self-governing communities.
Sponsors of the ICWA noted that Indian tribes and Indian
people were being drained of their children and, as a
result,
the future of the tribes and Indian people was being
placed in jeopardy. Holyfield,
490 U.S. at 33-34 & n. 3, 109 S.Ct. at
1600-01 & n. 3, 104 L.Ed.2d at 36-37 & n.
3.
In enacting the ICWA, Congress incorporated the following statement of
findings:
"Recognizing
the special relationship between the United States and the Indian
tribes and their members and the Federal responsibility to Indian
people, the Congress finds--
(1)
that * * * [through the authority of the United
States Constitution], Congress has plenary power over Indian affairs;
(2)
that Congress, through statutes, treaties, and the general course of
dealing with Indian tribes, has assumed the responsibility for the
protection and preservation of Indian tribes and their resources;
**940
***595
(3) that there is no resource that is more vital
to the continued existence and integrity of Indian tribes than
their children and that the United States has a direct
interest, as trustee, in protecting Indian children who are members
of or are eligible for membership in an Indian tribe;
*257
(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 and
the cultural and social standards prevailing in Indian communities and
families." (25 U.S.C. § 1901
(1988).)
Congress declared it to be the policy of the United
States:
"to
protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by
the establishment of minimum Federal standards for the removal of
Indian children from their families and the placement of such
children in foster or adoptive homes which will reflect the
unique values of Indian culture * * *." 25 U.S.C.
§ 1902
(1988).
At the heart of the ICWA are its provisions concerning
jurisdiction over Indian child custody proceedings. (Holyfield,
490 U.S. at 36, 109 S.Ct. at 1601, 104 L.Ed.2d
at 38.) A "child custody proceeding" as defined by the
ICWA refers to any proceeding involving foster care placement, termination
of parental rights, preadoptive placement or adoptive placement. (25 U.S.C.
§ 1903(1)
(1988).) The only two exceptions from that definition are awards
of custody to one of the parents in divorce proceedings
and delinquency proceeding placements. (25 U.S.C. § 1903(1)
(1988).) The ICWA defines an "Indian child"
as "any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and
is the biological child of a member of an Indian
tribe." (25 U.S.C. § 1903(4)
(1988).) The definition of an "Indian child's tribe" relevant to
this appeal is "the Indian tribe *258
in which an Indian child is a member or eligible
for membership." 25 U.S.C. § 1903(5)
(1988).
Under section 1911(a) the tribal court possesses exclusive jurisdiction "over
any child custody proceeding involving an Indian child who resides
or is domiciled within the reservation of such tribe." (25
U.S.C. § 1911(a)
(1988).) In the case of Indian children not domiciled or
residing within the reservation of the child's tribe, section 1911(b)
creates concurrent but presumptively tribal jurisdiction, and requires State courts
to transfer jurisdiction over the proceedings to the tribal court,
except in cases of "good cause," objection by either parent,
or declination of jurisdiction by the tribal court. 25 U.S.C.
§ 1911(b)
(1988).
It is undisputed that the proceeding
before us is a "child custody proceeding" and that S.S. and
R.S. qualify as "Indian children" within the meaning of the
ICWA. For the purposes of determining who should have jurisdiction
of the proceeding under the Act, the initial question we must resolve
is the location of their domicile. In reversing the circuit
court, the appellate ruled, based on Holyfield,
that the children's domicile was the
same as that of their mother, Iron Bear, i.e.,
the Fort Peck reservation. In our view, however, Holyfield
does not compel that result.
In Holyfield,
the United States Supreme Court considered the issue of the
domicile of twin infants born to unmarried Indian parents. The
parents, enrolled members of the Choctaw tribe and domiciliaries and
residents of the Choctaw reservation in Nashoba County, Mississippi, traveled
200 miles off the reservation, to Harrison County, Mississippi, for
the twins' birth, and immediately thereafter executed consent-to-adoption forms. Two
months after a final decree of adoption was entered by
the State court, the tribe moved to vacate the decree
on the ground that the ICWA vested *259
it with exclusive jurisdiction over the adoption proceeding **941
***596
because the parents were members of the tribe and domiciliaries
of the reservation. Recognizing that the jurisdictional question turned on
whether the children were domiciled on the reservation, the Supreme
Court of Mississippi determined that they were not and, thus,
affirmed the decree of the lower court.
Before reaching the specific issue of domicile, the United States
Supreme Court in Holyfield
examined the previously discussed legislative history and underlying policies of
the ICWA. Noting, then, that "domicile" is not defined in
the ICWA, the United States Supreme Court stated that the
meaning of "domicile" is a matter of Congress' intent. (Holyfield,
490 U.S. at 43, 109 S.Ct. at 1605, 104 L.Ed.2d
at 43.) The Court rejected the notion that
Congress intended the definition of "domicile" to be a matter
of State law. First, the Court determined that the purpose
of the ICWA gave no reason to believe that Congress
intended to rely on State law for the definition of
a critical statutory term. To the contrary, the Court found
from the text of the ICWA and its legislative history
and hearings that the purpose of the ICWA was, in
part, to make clear that in certain situations the State
courts did not
have jurisdiction over child custody proceedings (Holyfield,
490 U.S. at 43- 45, 109 S.Ct. at 1606-07, 104
L.Ed.2d at 43-44), and that the main effect of the
ICWA was to curtail the authority of individual States (Holyfield,
490 U.S. at 45 n. 17, 109 S.Ct. at 1606
n. 17, 104 L.Ed.2d at 44 n. 17). The Court
observed:
"Indeed,
the congressional findings that are part of the statute demonstrate
that Congress perceived the States and their courts as partly
responsible for the problem it intended to correct. [Citation.] 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." (Holyfield,
490 U.S. at 45, 109 S.Ct. at 1606-07, 104 L.Ed.2d
at 44.)
*260
In further support of its position, the Holyfield
Court also noted that resort to State-law definitions of domicile
would result in the lack of nationwide uniformity and could
even produce a situation where the ICWA would be
applied differently to the same child simply as a result
of where the child was located or transported. Reasoning that
Congress could hardly have intended such a result, the Court
concluded that Congress must have intended a uniform Federal law
of domicile for the ICWA. Holyfield,
490 U.S. at 45-47, 109 S.Ct. at 1607, 104 L.Ed.2d
at 44-45.
The
Court then looked to the generally accepted meaning of the term "domicile,"
borrowing from "established common-law principles of domicile to
the extent that they are not inconsistent with the objectives of the congressional
scheme." (Holyfield,
490 U.S. at 47-48, 109 S.Ct. at 1608, 104 L.Ed.2d at 46.) Citing
the Restatement (Second) of Conflict of Laws, sections 11 through 23 (1971),
and other commentaries and decisional law, the Court noted that it was
generally uncontroverted that "domicile" is not necessarily
synonymous with "residence" and that one can reside in one place
but be domiciled in another. In the case of adults, domicile
is established by physical presence in a place in connection with an intention
to remain there. Because most minors are legally incapable
of forming the requisite intent to establish a domicile, however, their
domicile is usually determined by that of their parents. Traditionally,
in the case of children born out of wedlock, the child takes the domicile
of the mother. (Holyfield,
490 U.S. at 48, 109 S.Ct. at 1608, 104 L.Ed.2d at 46.) Observing
that the domicile of the twins' mother, as well as the father, had at
all times been on the reservation,
the Court found it indisputable that the domicile of the twins was also
on the reservation even though they had never been there. Holyfield,
490 U.S. at *261
48-49, 109 S.Ct. at 1608, 104 L.Ed.2d at 46-47. See also In
re Adoption of a Baby Child
(App.1985), 102 N.M. 735, 700 P.2d 198, 200- 01 (child's domicile was
that of the mother on the reservation).
The
situation in this case is distinguishable. Although Iron Bear
was domiciled on the reservation, the children's father was not, had never
been, and did not want to be. His domicile was in Illinois.
Because he had sole custody of the children, that was their
domicile as well.
**942
***597
[5]
Upon the father's death, the domicile of the children would
normally have reverted to that of their mother. People
ex rel. Noonan v. Wingate
(1941), 376 Ill. 244, 249, 33 N.E.2d 467 (at common
law upon the death of the father an infant took
the domicile of its mother); 25 Am.Jur.2d Domicil
§ 67
(1966) (upon the death of the parent to whom custody
of a child has been awarded the domicile of the
child becomes that of the surviving parent); Restatement (Second) of
Conflict of Laws § 22,
Comment b,
at 63 (1971) (upon the death of the parent who
has been awarded legal custody of the child or with
whom the child has been living, the child's domicile shifts
to that of the other parent even though the latter
is domiciled in another State).
An exception to this general rule has been recognized, however,
where the surviving
parent has abandoned the child. (Restatement (Second) of Conflict of
Laws § 22,
Comments e,
i
(1971).) If a child is left parentless as a result
of death and/or abandonment, and no legal guardian of the
child's person has been appointed, the child takes the domicile
of the person who stands in
loco parentis
to him and with whom he lives. Restatement (Second) of
Conflict of Laws § 22,
Comment i
(1971); see Donlon
v. Miller
(1976), 42 Ill.App.3d 64, 71, 355 N.E.2d 195.
An
important limitation on this rule is that the doctrine of abandonment
cannot be used by Native American *262
Indian parents as part of a scheme to facilitate adoption of their children
by non-Indians while they remain domiciliaries of the reservation. Otherwise,
the purpose of the ICWA would be undermined, and the tribe's ability to
assert its interest in its children would be weakened. (Holyfield,
490 U.S. at 52, 109 S.Ct. at 1610, 104 L.Ed.2d at 49. In
re Adoption of Halloway
(Utah 1986), 732 P.2d 962, 969.) In this case, however, there
plainly was no such scheme, and application of the common law abandonment
doctrine can do no possible violence to the purposes of the Act. Accordingly,
if Iron Bear were found to have abandoned her children, the children's
domicile would remain in Illinois even after their father's death.
For
the purposes of establishing domicile, abandonment occurs when the parent
deserts the child or when the parent gives custody of the
child to another with the intention of relinquishing his parental rights
and obligations. To determine whether an abandonment has taken
place, the rules of the forum are normally applied. (Restatement
(Second) of Conflict of Laws § 22, Comment e
(1971).) If substantiated at a hearing in a trial court, the
allegations made by the Tubridys would be sufficient under Illinois law
to find abandonment. Because of the procedural posture of
this case, however, there has never been a hearing to determine whether
Iron Bear has abandoned her children. Given the importance
of the abandonment issue to resolution of where the children are domiciled,
the judgments of the circuit and appellate courts must therefore be reversed,
and the cause must be remanded to the circuit court for a finding as to
whether Iron Bear abandoned R.S. and S.S. If the hearing discloses
that there has not been abandonment, then the children would have to be
deemed domiciliaries of the reservation, the tribe would have exclusive
jurisdiction under section *263
1911(a) of the ICWA (25 U.S.C. § 1911(a) (1988)), and the circuit
court of Kane County would be required to transfer the cause to the Fort
Peck tribal court.
On the other hand, if Iron Bear were proven to
have abandoned her children, then the tribe would not have
exclusive jurisdiction under section 1911(a) because the children would then
neither reside nor be domiciled on the reservation. Instead, the
operative provision would be section 1911(b) of the ICWA (25
U.S.C. § 1911(b)
(1988)), which confers concurrent jurisdiction on
the State courts along with the tribal court where the
child is not domiciled and does not reside on the
reservation. Under section 1911(b), there is still a presumption that
the tribal court should hear the case, but transfer to
the tribal court is not required where there is objection
by either parent or where the trial court finds good
cause to deny such a transfer.
In
order to assist State courts in determining what constitutes good cause
to **943
***598
deny a request to transfer a custody dispute to a tribal court under section
1911(b), the Bureau of Indian Affairs has promulgated nonbinding guidelines.
(Guidelines for
State Courts: Indian Child Custody Proceedings,
44 Fed.Reg. 67,584 (1979) (hereinafter, Guidelines
).) Among the several possible "good cause" reasons for refusing
to transfer an Indian child custody case to the tribal court is that the
evidence could not be presented in tribal court without undue hardship
to the parties or witnesses. (Guidelines,
44 Fed.Reg. at 67,591.) Although the guidelines are not binding,
the courts have recognized that section 1911(b) of the ICWA (25 U.S.C.
§ 1911(b) (1988)) authorizes use of a modified version of forum
non conveniens when
deciding whether to retain or transfer jurisdiction in Indian child custody
proceedings. See In
re C.W. (1992), 239
Neb. 817, 825-26, 479 N.W.2d 105, 113; In
re Maricopa County Juvenile Action No. JS-8287
(App.1991), 171 *264
Ariz. 104, 107, 110, 828 P.2d 1245, 1248, 1251; Chester
County Department of Social Services v. Coleman
(1990), 303 S.C. 226,
229-32, 399 S.E.2d 773, 775-76.
We can take judicial notice of the fact that Poplar,
Montana, where the Fort Peck tribal court is located, is
more than 1,100 miles from the Chicago metropolitan area where
S.S. and R.S. reside. Traveling this distance for the termination/adoption
hearing would be unduly burdensome on the children, their custodians,
the adoption petitioners, and all the other potential witnesses involved
with the children's lives, all of whom, apart from Iron
Bear, reside in Illinois. Because the bulk of the evidence
and the majority of the witnesses necessary to the termination
of parental rights action are located in Illinois, a transfer
would assuredly constitute an undue hardship. Accordingly, under section 1911(b)
of the ICWA, good cause would exist to allow the
circuit court of Kane County to retain jurisdiction over the
Tubridys' custody petition. See In
re Maricopa County Juvenile Action,
171 Ariz. 104, 828 P.2d 1245 (good cause existed to
deny transfer from Arizona to out-of-state tribal court); In
re J.R.H.
(Iowa 1984), 358 N.W.2d 311 (because of geographical obstacles, transfer
from Iowa to tribal court in South Dakota would cause
undue hardship to parties and witnesses and constituted good cause
not to transfer); Chester
County Department of Social Services,
303 S.C. 226, 399 S.E.2d 773 (where most of the
witnesses and evidence were in South Carolina, good cause existed
to deny transfer to tribal court in South Dakota).
For the foregoing reasons, the judgment of the appellate court
is reversed, and the cause is remanded to the circuit
court for a hearing on whether Iron Bear abandoned R.S.
and S.S. If the court finds that there was no
abandonment, it shall enter an order transferring this cause to
the Fort Peck tribal court. If it *265
determines by clear and convincing evidence that abandonment did occur,
it shall reinstate its prior orders denying transfer to the
tribal court and retain jurisdiction over the Tubridys' cause of
action.
Reversed
and remanded with directions.
Justice HEIPLE, concurring in the judgment:
Insofar as neither Justice Harrison nor the dissenters in this
case will apply the existing Indian family exception to the
Indian Child Welfare Act (ICWA), I concur in the judgment
of this court as set forth by Justice Harrison: to
wit, that the appellate court should be reversed and this
matter remanded to the circuit court for an abandonment hearing
to determine where the children are domiciled and thus whether
the Illinois courts can retain jurisdiction over this custody dispute
pursuant to the ICWA. I write separately, however, to express
my view that this court should recognize that the ICWA
does not apply where there is no existing Indian family.
Where, as with S.S. and R.S., there is no existing
Indian family and the children have never been part of
an Indian cultural setting or lived on a reservation, there
is no justification for applying the ICWA. It is this
rationale that constitutes the existing Indian family exception and Illinois
should join the majority of jurisdictions that have adopted the
exception and refused to apply the ICWA where children are
not part of an existing Indian family. (See In
re Adoption of Baby Boy L.
(1982), 231 Kan. 199, 643 P.2d 168; S.A.
v. E.J.P.
(Ala.Civ.App.1990), 571 So.2d **944
***599
1187; In
re Termination of Parental Rights of D.S.
(Ind.1991), 577 N.E.2d 572; In
re Adoption of Infant Boy Crews
(1992), 118 Wash.2d 561, 825 P.2d 305; In
re S.C.
(Okla.1992), 833 P.2d 1249; In
re T.S.
(1990), 245 Mont. 242, 801 P.2d 77; In
re C.E.H.
(Mo.App.1992), 837 S.W.2d 947; In
re C.W.
(1992), 239 Neb. 817, 479 N.W.2d 105.) Applying the exception
in Illinois *266
would limit the ICWA's scope to the issue Congress sought
to remedy: namely, the attempts of third parties to remove
Indian children from existing Indian families or reservations. 25 U.S.C.
§ 1902
(1988).
The underlying history and purpose of the ICWA evidence that
Congress intended the Act to apply only where third parties
seek to remove Indian children from their existing Indian families
or cultural settings. Congress enacted the ICWA in recognition of
the invasive nature of some State agencies vis-a-vis the custody
of Indian children on Indian reservations. The intent underlying the
ICWA is apparent in the Act's statement of purpose, which
reads as follows:
"to
protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by
the establishment of minimum Federal standards for
the removal of Indian children from their families
and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture
* * *." (Emphasis added.) (25 U.S.C. § 1902
(1988).)
Indeed, the underlying thread that runs throughout the Act is
the prevention of the removal of Indian children from an
existing Indian family unit and the resultant breakup of the
Indian family. (See 25 U.S.C. §§ 1901(4),
(5) (1988); see also In
re Adoption of Baby Boy L.
(1982), 231 Kan. 199, 206, 643 P.2d 168, 168.) Stated
otherwise, the ICWA attempts to ensure that, "where possible, an
Indian child should remain
in the Indian community." H.R.Rep. 95-1386, 95th Cong., 2d Sess.
23 (1978).
In refusing to apply the existing Indian family exception, the
dissent argues that the Supreme Court's decision in Holyfield
precludes adoption of the exception. (Mississippi
Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.)
The Holyfield
Court, however, never refers to the existing Indian family exception.
The sole issue before the
Court concerned the domicile of the twin children at issue.
*267
Indeed, the Supreme Court has never granted certiorari
in any of the numerous cases where our sister State
courts have employed the exception, including several cases decided after
the Supreme Court's 1988 decision in Holyfield.
See In
re Termination of Parental Rights of D.S.
(Ind.1991), 577 N.E.2d 572; In
re Adoption of Infant Boy Crews
(1992), 118 Wash.2d 561, 825 P.2d 305; In
re S.C.
(Okla.1992), 833 P.2d 1249; In
re T.S.
(1990), 245 Mont. 242, 801 P.2d 77; In
re C.E.H.
(Mo.App.1992), 837 S.W.2d 947; In
re C.W.
(1992), 239 Neb. 817, 479 N.W.2d 105.
Moreover, the facts of Holyfield
are wholly inapposite to those of the instant case. Holyfield
concerned unmarried American Indian parents, both of whom resided and
were domiciled on the reservation. (Holyfield,
490 U.S. at 37-39, 109 S.Ct. at 1602-03, 104 L.Ed.2d
at 39-40.) Immediately prior to their twins' births, the parents
drove off the reservation to a hospital 200 miles away
and, upon the children's delivery, placed them with an adoptive
family. They then drove back to their reservation. Two months
later, the tribe sought to have the adoption invalidated because
the tribe had not received the requisite notice under the
ICWA and the State court had not, as is mandated
by the ICWA, made any effort to place the children
with members of their extended family or with another American
Indian family. The trial court ruled
against the tribe and the Mississippi Supreme Court affirmed, ruling
that the children had never been domiciled on the reservation
and thus that Mississippi properly exercised jurisdiction over the adoption.
The Supreme Court in Holyfield
reversed the Mississippi Supreme Court, holding that the ICWA could
not be defeated by "individual reservation-domiciled tribal members" intentionally leaving
the reservation in order that their children could be placed
in an adoptive home *268
off the reservation. (Holyfield,
490 U.S. at 53, 109 S.Ct. at 1610, 104 **945
***600
L.Ed.2d at 49.) Rather, the Court held that the tribe
had exclusive jurisdiction under the Act because the domicile of
minors follows that of their parents and the parents at
issue clearly never intended to be domiciled anywhere other than
on the reservation.
In refusing to recognize the existing Indian family exception, the
dissent contends that the reasoning of Holyfield
suggests that the exception violates the ICWA. Specifically, the dissent
opines that Holyfield
stands for the proposition that the ICWA grants the tribes
an interest in children separate from that of the children's
parents and thus that the existing Indian family exception is
improper because it ignores the tribe's interest. This, however, overstates
the case.
Under the ICWA, the tribe has exclusive jurisdiction over custody
disputes involving
Indian children residing or domiciled on the reservation, and where
neither of the parents objects. (25 U.S.C. § 1911(a)
(1988).) Moreover, the ICWA requires that an effort be made
to place these children with a member of their extended
family or with another American Indian family. (25 U.S.C. § 1915
(1988).) This, however, is the extent of the tribe's interest.
The interest of the tribe is thus not ignored under
the existing Indian family exception because, as in the instant
case, the exception would only be applied where the children
are not part of an existing Indian family. (For post-Holyfield
cases employing the exception, see In
re Termination of Parental Rights of D.S.
(Ind.1991), 577 N.E.2d 572; In
re Adoption of Infant Boy Crews
(1992), 118 Wash.2d 561, 825 P.2d 305; In
re S.C.
(Okla.1992), 833 P.2d 1249; In
re T.S.
(1990), 245 Mont. 242, 801 P.2d 77; In
re C.E.H.
(Mo.App.1992), 837 S.W.2d 947.) Indeed, it is significant that S.S.
and R.S. have never resided on the reservation with their
mother, except for one summer visit. Rather, they *269
have been raised and domiciled in Illinois for virtually their
whole lives.
The dissent's contention that the exception contravenes the intent of
Congress in passing the ICWA also ignores Congress' refusal to
abolish the existing Indian family exception. A 1987 amendment to
the ICWA presented to the Senate by the Committee for
Indian Affairs would have made application of the ICWA mandatory
regardless of whether the child had "previously lived in Indian
Country, in an Indian cultural environment or with an Indian
parent." (See S.1976, 100 Cong., 1st Rec. S18532, S18533 (daily
ed. Dec. 19, 1987).) The amendment never made it to
the floor of the Senate and has not been presented
since. Congress is well aware of the existing Indian family
exception and apparently has chosen not to change the statutory
language of the ICWA to preclude application of the exception.
I note finally the dissent's intimation that in favoring an
abandonment hearing or the adoption of the existing Indian family
exception prejudice against or distrust of the Fort Peck tribal
court is evidenced. This is not the case and beside
the point. S.S. and R.S., at least one-half Caucasian, have
lived their whole lives in Illinois divorced from their Indian
heritage as a result of their mother's lack of involvement
and arguable abandonment. Illinois has a complex set of statutes
designed to ensure the best interests of its citizens, including
children in situations such as S.S. and R.S. This court
is familiar with and regularly called upon to interpret these
statutes which are rooted in the common law and have
withstood the test of time. My desire to apply Illinois
law if possible stems from my confidence in these laws,
all of which aim to achieve what is in the
best interest of S.S. and R.S.
CONCLUSION
I would hold that the ICWA does not apply in
the *270
instant case because S.S. and R.S. are not part of
an existing Indian family. Jurisdiction over the custody dispute would
thus remain with the Illinois courts and there would be
no need for an abandonment hearing to determine where the
children are domiciled. Nevertheless, insofar as a majority of this
court refuses to acknowledge the existing Indian family exception, I
concur in the judgment set forth by Justice Harrison that
the appellate court should be reversed and this matter remanded
to the circuit court to determine where the children are
domiciled and thus whether the Illinois courts can retain**946
***601
jurisdiction over this custody hearing pursuant to the ICWA.
Chief Justice BILANDIC and Justice MILLER join in this concurrence.
Justice McMORROW, dissenting:
"[Lack
of knowledge] is one of the greatest barriers to understanding
between different peoples. If we do not understand each other,
if we do not know the culture and history of
each other, it is difficult to see the value and
dignity of each other's societies. This is especially true in
relations between Indians and non-Indians." Chief Justice Robert Yazzie, Navajo
Nation Supreme Court,
as
quoted in
Comment, Tribal
Jurisdiction Under Section 1911(b) of the Indian Child Welfare Act
of [1978]: Are the States Respecting Indian Sovereignty?,
23 N.M.L.Rev. 479, 496 (1993).
In the late 1970s, Congress recognized that profound ignorance and
misunderstanding of Native American Indian cultural values were prompting State
social welfare agencies to engage in the wholesale removal of
Indian children from their families and the placement of those
children in non-Indian homes. Such removals worked a great hardship
on the Native American Indian children, their families, and their
tribes. Congress enacted the Indian Child Welfare Act of 1978
(ICWA) *271
(25 U.S.C. § 1901
et
seq.
(1988)), in an effort to prevent the placement of Indian
children into non-Indian families, by restoring and preserving Native American
Indian tribal court jurisdiction over custody proceedings involving Indian children.
In the present appeal, the majority misapprehends the central focus
of the ICWA and ignores Congress' plenary powers to give
superior authority to a tribal court to assert jurisdiction over
custody cases involving Native American Indian children. The unfortunate effect
of the majority's opinion is to revert to and perpetuate
the regressive State policies and practices that led Congress to
enact the ICWA.
The majority opinion misstates the issues presented in this appeal.
This court
was asked to decide whether it should adopt the "existing
Indian family doctrine," which limits application of the ICWA to
Indian children who are members of an "existing Indian family."
The second issue involves the domicile of two Indian children
upon the death of one parent. The majority acknowledges that
under the ICWA and traditional principles of common law, the
children in the instant cause would take the domicile of
their mother, who is their surviving parent. Nevertheless, without the
benefit of briefing and argument, the majority sua
sponte
raises the question of whether the ICWA can be superseded
by State domicile law when a nonparent seeking custody alleges
that the surviving parent has "abandoned" the children.
Because I believe that these questions should be answered in
the negative, I respectfully dissent. The majority is remiss for
its failure to address, consider, or resolve the primary issue
raised by the parties and ruled upon by the appellate
court, i.e.,
the validity and scope of the existing Indian family doctrine.
In addition, the majority's remand of the cause for an
"abandonment" *272
hearing in order to determine the children's domicile strongly suggests
that the circuit court should retain jurisdiction over the parties'
adoption dispute, in contradiction to the plain terms of the
ICWA.
Background
The parties in this case are the petitioners, Leslie Scarlotte
Tubridy and her husband,
Patrick Tubridy (Tubridys), respondent Betty Jo Iron Bear (Betty Jo),
respondents Fort Peck Assiniboine and Sioux tribes (Fort Peck tribe
or tribe) and Betty Jo's two children, S.S. and R.S.
Although parts of the majority's recitation of the facts are
accurate, the majority improperly supplements the record with matters that
are unproven. In so doing, the majority attempts to justify
its decision by indulging in unsubstantiated attacks upon the character
and morality of Betty Jo, the children's surviving Indian parent.
For example, the record does not disclose the cause of
Richard's death. Nevertheless, the majority states that he died "of
a disease he contracted from" Betty Jo (167 Ill.2d at
252, 212 Ill.Dec. at 593, 657 N.E.2d at 938). The
briefs to this cause contain arguments from the parties alleging
that Richard suffered **947
***602
from acquired immune deficiency syndrome (AIDS), an illness from which
Betty Jo also apparently suffers. However, there is nothing in
the record to verify the claim that Richard died from
AIDS, or that he contracted the illness from Betty Jo.
There is no justifiable reason for the majority to make
any reference to the nature or cause of Richard's death.
Moreover, the majority fails to explain the relevance of this
alleged information with respect to the true issue in this
cause, which is the tribe's jurisdiction under the ICWA.
The majority is without support in its statement that the
children have "visited
the Fort Peck reservation only once" and that "neither child
has had any significant interaction with an Indian tribe beyond
their *273
one visit to the reservation." (167 Ill.2d at 252-53, 212
Ill.Dec. at 593, 657 N.E.2d at 938.) The record does
not establish how many times the children have visited the
Fort Peck reservation. It is also significant, but undisclosed by
the majority, that Betty Jo allegedly has had continuing contact
with the children, thereby maintaining the children's contact with their
tribal heritage. Her claim that she has had repeated phone
conversations with the children, and corresponded with them, stands unrefuted
by the Tubridys.
The majority's ruling also reflects a more fundamental error: a
failure to appreciate that the ICWA is founded on recognizing
and preserving the distinctive character of Indian cultural heritage, such
as that of Betty Jo and the Fort Peck tribe.
Unfortunately, the majority has devised a strategy, albeit legally unsupportable,
to circumvent the requirements of the ICWA.
The
Indian Child Welfare Act of 1978
Congress enacted the Indian Child Welfare Act in 1978 in
response to extensive evidence indicating that large numbers of Indian
children were being removed from their Indian families and their
tribes and were being placed in non-Indian homes through State
foster care placement, termination of parental rights and adoption proceedings.
(Mississippi
Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104
L.Ed.2d 29, 36.) It was revealed that such displacements were
prompted by a profound misunderstanding of Indian child-rearing methods as
well as a more generalized indifference or antipathy to Indian
cultural values and beliefs. For example, State social workers often
believed that Indian parents had abandoned their children, when in
reality the parents were merely following the Indian custom of
collective child-rearing by several members of the child's extended family.
The State social workers' failure to acknowledge and appreciate this
Indian custom played a role in many instances *274
where children were separated from their Indian families. Only a
small percentage of Indian children were placed in foster or
adoptive care because of parental abuse; the great majority were
removed from their Indian families based on allegations of parental
neglect and abandonment. H.R.Rep. 95-1386, 95th Cong., 2d Sess. 10
(1978) (hereinafter House Report).
In fact, information submitted at the congressional hearings "disclosed what
almost amount[ed] to a callous raid on Indian children" and
indicated that the children were "removed from their parents and
families by State agencies for the most specious of reasons
in proceedings foreign to the Indian parents." (124 Cong.Rec. 12532
(1978) (remarks of Rep. Udall).) It was also revealed that
Indian children were placed for adoption and foster care at
an alarmingly higher
rate than were non-Indian children. (S.Rep. No. 95-597, 95th Cong.,
1st Sess. 11 (1977) (hereinafter Senate Report); House Report at
9.) According to a sponsor of the ICWA,
"Studies
* * * revealed that about 25 percent of all
Indian children [were] removed from their homes and placed in
some foster care or adoptive home or institution. * *
* The most distressing and critical factor giving rise to
this emerging crisis of Indian families [was] * * *
the inability or unwillingness of State agencies or officials to
understand the different cultural and social norms prevailing in the
Indian world. The record shows that, in all too many
cases, Indian parents ha[d] their children forcibly taken from them
not because they [were] unfit parents or because they [could
not] adequately provide for their children as measured by the
norms **948
***603
prevailing in the Indian community, but because they are Indians."
124 Cong.Rec. 38102 (October 14, 1978) (remarks of Rep. Udall).
See also Myers, Gardner & Geary, Adoption
of Native American Children and the Indian Child Welfare Act,
18 S.Ct.J. 17 (1994).
It was perceived that part of the reason for such
widespread removal of Indian children from their families *275
was to accomplish a "forced acculturation of Native American children
into Euro-American society"; the ICWA was adopted in order to
end such practices "by recognizing a predominantly tribal jurisdiction
over tribal child welfare cases." (Carriere, Representing
the Native American: Culture, Jurisdiction, and the Indian Child Welfare
Act,79
Iowa L.Rev. 585, 589 (1994) (hereinafter Representing
the Native American
).) It was further recognized that the widespread practice of
placing Indian children in non-Indian families caused serious harm to
the Indian children, their parents and their tribes. As explained
by Chief Calvin Isaac, a representative of the National Tribal
Chairmen's Association who testified before Congress, " '[c]ulturally, the chances
of Indian survival [and the transmission of tribal heritage] are
significantly reduced [when Indian children are raised] * * *
in non-Indian homes and denied exposure to the ways of
their People.' " He further testified that the practice of
removing Indian children from the custody of their natural parents
by nontribal authorities " 'seriously undercut[s] the tribes' ability to
continue as self-governing communities.' " He opined that " '[p]robably
in no area is it more important that tribal sovereignty
be respected than in an area as socially and culturally
determinative as family relationships.' " Holyfield,
490 U.S. at 34, 109 S.Ct. at 1600-01, 104 L.Ed.2d
at 37 (quoting from the transcripts of the hearings before
the Senate Select Committee on Indian Affairs, 95th Cong., 2nd
Sess. 193 (1978)).
Although the majority acknowledges that the ICWA was adopted to
remedy these
problems, the majority ignores that these very issues are present
in the instant cause. The majority refuses to confront and
grapple with the reality that there can be significant and
possibly irreparable harm that is inflicted on Indian children, Indian
families, and Indian tribes when Indian tribes *276
are wrongfully deprived of their rightful jurisdiction to determine custody
disputes involving Indian children.
The majority also acknowledges, but fails to give content to,
the statement of findings and policy adopted by Congress when
it enacted the ICWA. Congress emphasized at length that the
ICWA was consistent with the special duty that the United
States has to preserve and protect Indian tribes. (See 25
U.S.C. § 1901
(1988).) In enacting the statute, Congress reiterated that it was
intended to greatly reduce State involvement in Indian child custody
disputes, inasmuch as Congress had determined that "the States, exercising
their recognized jurisdiction over Indian child custody proceedings * *
* 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(5)
(1988).) In order to prevent or reduce State involvement, Congress
declared that it was the policy of the ICWA "to
protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by
the establishment of minimum Federal standards
for
the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture." (Emphasis added.)
25 U.S.C. § 1902
(1988).
The majority's decision eviscerates the ICWA's requirement for consistent and
uniform minimum Federal standards and replaces it with the peculiar
vagaries of Illinois law with respect to whether alleged parental
"abandonment" causes a change in a child's domicile. Such was
not the spirit or intent of Congress when it enacted
the ICWA, and the majority's disposition is a plain violation
of the express terms of the Federal statute.
Under section 1911(a) of the ICWA, the tribal court *277
possesses exclusive jurisdiction "over any child custody proceeding involving an
Indian child who resides or is domiciled within the reservation
of such tribe." (25 U.S.C. § 1911(a)
(1988).) in the case of Indian**949
***604
children not domiciled or residing within the reservation of the
child's tribe, section 1911(b) creates concurrent but presumptively tribal jurisdiction
and requires State courts to transfer jurisdiction over the proceedings
to the tribal court, except in cases of "good cause."
25 U.S.C. § 1911(b)
(1988).
Whether a child is "domiciled" on a reservation for purposes
of a court's jurisdiction under the ICWA was considered at
length by the United States Supreme
Court in Mississippi
Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.
In Holyfield,
Native American Indian parents who were domiciled on an Indian
reservation in Mississippi travelled approximately 200 miles off the reservation
for the birth of their twins. They executed consent-to-adoption forms
immediately after the births and then returned to the reservation.
The State courts of Mississippi validated the adoptions over the
objections of the parents' Indian tribe, which sought to intervene
in the adoption proceeding. However, the United States Supreme Court
held that the tribal court had exclusive jurisdiction over the
custody proceeding, since the parents had been domiciled on the
reservation and the children took the domicile of their parents
upon their birth. The Court held that in determining domicile,
courts must look to uniform, Federal jurisprudence with respect to
this term, and that courts cannot apply an inconsistent interpretation
of domicile that might vary from State to State.
The majority acknowledges the general principles regarding domicile of a
minor whose parent has died, leaving a surviving parent. As
noted by the majority, *278
under established common law, upon the death of Richard, the
domicile of the children became that of Betty Jo, the
surviving parent and legal custodian. (People
ex rel. Noonan v. Wingate
(1941), 376 Ill. 244, 249, 33 N.E.2d 467 (at common
law upon the death of the father an infant took
the
domicile of its mother); 25 Am.Jur.2d Domicil
§§ 67,
70 (1966) (§
67: upon the death of the parent to whom custody
of a child has been awarded, the domicile of the
child becomes that of the surviving parent; § 70:
upon the death of the father, the domicile of the
minor becomes the domicile of the mother); Restatement (Second) of
Conflict of Laws § 22,
Comment b,
at 63 (1981) (upon the death of the parent who
has been awarded legal custody of the child or with
whom the child has been living, the child's domicile shifts
to that of the other parent even though the latter
is domiciled in another State).) Applying these principles to the
instant case, the domicile of R.S. and S.S. is the
same as that of their mother, i.e.,
the Fort Peck reservation. Consequently, since this case is a
child custody proceeding involving Indian children whose domicile is an
Indian reservation, the express language of section 1911(a) of the
ICWA mandates that the tribe have exclusive jurisdiction over this
action.
The majority believes that the children's domicile should not follow
that of their mother, Betty Jo, because there are allegations
that she has "abandoned" the children. However, under the terms
of the ICWA and its jurisprudential interpretations by the United
States Supreme Court, State laws pertaining to abandonment cannot be
applied to determine a child's domicile under the Indian Child
Welfare Act.
The Supreme Court held in Holyfield
that a parent's actions cannot alter tribal court power to
assert jurisdiction over a custody proceeding involving an Indian child
who is a member of, or is eligible for membership
*279
in, the Indian tribe. (Holyfield,
490 U.S. at 51-53, 109 S.Ct. at 1609-11, 104 L.Ed.2d
at 48-49.) As a result, the Court held that parental
actions amounting to abandonment do
not and cannot
divest a tribal court of jurisdiction. In so ruling, the
Holyfield
Court agreed with the reasoning of the Supreme Court of
Utah in In
re Adoption of Halloway
(Utah 1986), 732 P.2d 962, 969-70, that even a finding
of parental abandonment cannot be determinative of jurisdiction under the
ICWA. (Holyfield,
490 U.S. at 51 n. 26, 52-53, 109 S.Ct. at
1609 n. 26, 1610, 104 L.Ed.2d at 48 n. 26,
49.) The Court noted that the decision in Halloway
was a "scholarly and sensitive opinion in what has become
a leading case on the ICWA." (Holyfield,
490 U.S. at 52, 109 S.Ct. at 1610, 104 L.Ed.2d
at 49.) Quoting Halloway,
the Court further stated:
**950
***605
" '[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.' " Holyfield,
490 U.S. at 53, 109 S.Ct. at 1610, 104 L.Ed.2d
at 49, quoting Halloway,
732 P.2d at 970.
In Halloway,
the court ruled that the domicile of the child born
out of wedlock was that of his mother on the
reservation and that under section 1911(a) of the ICWA the
tribe therefore had exclusive jurisdiction over the adoption proceeding. The
Halloway
court refused to apply State law to defeat the tribe's
jurisdiction on the basis that the child had been, arguably,
abandoned by the mother after the child's removal from the
reservation and placement in a non-Indian home. The court stated,
"There certainly is nothing in the ICWA or its legislative
history to suggest that state law controls if, in application,
its subtleties bring it into conflict with the ICWA in
ways that Congress apparently did not foresee. Under general supremacy
principles, state law *280
cannot be permitted to operate 'as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.' [Citation.] If it does, state law is preempted. [Citation.]"
Halloway,
732 P.2d at 967.
Based upon Holyfield
's endorsement of this reasoning in Halloway,
it is readily apparent that Illinois' State-abandonment rules cannot be
used to deprive the Fort Peck tribal court of jurisdiction
over this custody dispute, which involves two Indian children who
are legally presumed to be domiciled on the tribal reservation.
Yet this is precisely what the majority accomplishes in
its opinion today.
In order to justify its position, the majority attempts to
distinguish Holyfield.
However, its reasoning does not withstand scrutiny. The majority suggests
that Holyfield
stands only for the rule that "the doctrine of abandonment
cannot be used by Native American Indian parents as part
of a scheme to facilitate adoption of their children by
non-Indians while they remain domiciliaries of the reservation." (167 Ill.2d
at 261-62, 212 Ill.Dec. at 597, 657 N.E.2d at 942.)
However, the Supreme Court in Holyfield
condemned the State court's use of its own State-law abandonment
principles in order to deprive the Indian tribe of its
legitimate exercise of jurisdiction over the adoption dispute. Such efforts
by a State-court system to use its own abandonment rules
in order to oust the tribal court of jurisdiction are
just as apparent in the instant cause as they were
in Holyfield.
Application of abandonment principles in order to shift the children's
domicile from their mother, Betty Jo, is directly contrary to
and entirely inconsistent with congressional intent in enacting the Indian
Child Welfare Act. As the Supreme Court observed in Holyfield,
Congress intended the term "domicile" to have a uniform Federal
meaning in order to curtail State authority over child custody
proceedings involving *281
Indian children, |