| (Cite
as: 732 P.2d 962)
Supreme
Court of Utah.
In
the Matter of the ADOPTION OF Jeremiah HALLOWAY, a person
under 18 years of
age.
Appeal
of NAVAJO NATION.
No.
20519.
Dec. 5, 1986.
*962 Mary Ellen
Sloan, Kapaloski, Kinghorn & Peters, Salt Lake City, Craig Dorsay,
Window Rock, for appellant.
Richard B. Johnson, Howard,
Lewis & Peterson, Provo, for respondents.
ZIMMERMAN, Justice:
The Navajo Nation challenges
the jurisdiction of the Utah courts to rule upon a petition for adoption
of a Navajo child and related proceedings. We agree that the trial court
lacked jurisdiction and vacate its orders granting the petition for adoption
and terminating the parental rights of Cecelia Saunders. Any further proceedings
relating to the adoption must be *963
presented to the courts of the Navajo Nation.
This action arises out
of an adoption proceeding concerning Jeremiah Halloway commenced in the
Fourth District Court for Utah County, Utah. Jeremiah was born on May
14, 1977, to Cecelia Saunders, a full-blooded Navajo enrolled in the
Navajo tribe and a domiciliary of the Navajo reservation in Churchrock,
New Mexico. Jeremiah lived the first six months of his life with his mother
on the reservation, after which he was cared for on the reservation by
his maternal grandmother, Bessie Begay.
In March of 1980, a maternal
aunt removed Jeremiah from the reservation with the oral consent of his
mother and took him to Utah. The record indicates that at the time Jeremiah
left the reservation, Cecelia thought he was to be placed temporarily
with a foster family, although she had discussed the possibility of adoption
with the maternal aunt prior to consenting to his removal. Cecelia learned
of Jeremiah's proposed adoption by a non-Indian couple two weeks after
he left the reservation.
Two months later, in
May 1980, Cecelia executed a consent to adoption before the Fourth District
Court for Utah County, Utah. The adoptive parents immediately filed a
petition for adoption. In a minute entry acknowledging Cecelia's execution
of the consent to adoption, the trial court ordered counsel for the adoptive
parents to contact the Navajo tribe and to obtain its consent before proceeding.
Notification of the pending adoption proceeding was given to the Navajo
Nation approximately five months later.
In May 1982, some two
years after the petition for adoption was filed, the Navajo Nation intervened
in the adoption proceeding.
[FN1] Acting under the authority of the Indian Child Welfare Act of 1978
("ICWA"), Pub.L. No. 95- 608,
25 U.S.C. §§ 1901-1963 (1982), the Navajo Nation moved to dismiss
the proceedings, asserting that the Utah courts lacked jurisdiction to
act on the adoption petition and related proceedings because Jeremiah
was an Indian child and a domiciliary of the Navajo reservation. Subsection
101(a) of the ICWA provides that "[a]n
Indian tribe shall have jurisdiction exclusive as to any State over any
child custody proceeding involving an Indian child who ... 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) (1982) (emphasis added).
FN1.
At oral argument, counsel for the tribe argued without contradiction that
part of the reason for the long delay before the tribe's formal intervention
in the proceedings was due to the lack of any tribal mechanism for handling
Indian child custody disputes. That problem has since been resolved. In
addition, according to counsel, the tribe was attempting to negotiate
informally for the child's return during the two years before it formally
intervened.
The trial court denied
the motion on July 14, 1982, finding that Jeremiah was domiciled in Utah
rather than on the Navajo reservation "based upon the fact that the
child's residence appears to have been voluntarily and purposely [sic]
removed
from the natural mother, grandmother and reservation to the [adoptive
parents]." The trial court then stated that in view of the change
in the child's domicile and the long period of time that Jeremiah had
been with his adoptive parents, "this court finds that apparent 'good
cause' exists for this court to take jurisdiction and that the requirements
of the Indian Child Welfare Act have ... been satisfied." In so ruling,
the trial court presumably was relying upon subsection 101(b) of the ICWA
as its authority to assert jurisdiction. That section provides that adoption
proceedings involving Indian children not
domiciled upon the reservation shall be transferred to the child's tribe
upon request, unless good cause for retaining jurisdiction exists. 25
U.S.C. § 1911(b) (1982).
[FN2]
FN2.
Subsection 101(b) provides:
In
any State court proceeding for the ... termination of parental rights
to an Indian child not domiciled or residing within the reservation of
the Indian child's tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either parent or the
Indian custodian or the Indian child's tribe: Provided,
That such transfer shall be subject to declination by the tribal court
of such tribe.
25
U.S.C. § 1911(b) (1982) (emphasis added). "Good
cause" is defined in the Guidelines for State Courts; Indian Child
Custody Proceedings. These guidelines represent the interpretation of
various ICWA provisions by the Bureau of Indian Affairs of the Department
of the Interior. 44 Fed.Reg. 67584 (1979) (not codified). Under the guidelines,
"good cause" is defined as follows:
(a)
Good cause not to transfer the proceeding exists if the Indian child's
tribe does not have a tribal court as defined by the Act to which the
case can be transferred.
(b)
Good cause not to transfer the proceeding may exist if any of the following
circumstances exists:
(i)
The proceeding was at an advanced stage when the petition to transfer
was received and the petitioner did not file the petition promptly after
receiving notice of the hearing.
(ii)
The Indian child is over twelve years of age and objects to the transfer.
(iii)
The evidence necessary to decide the case could not be adequately presented
in the tribal court without undue hardship to the parties or the witnesses.
(iv)
The parents of a child over five years of age are not available and the
child has had little or no contact with the child's tribe or members of
the child's tribe. (c)
Socio-economic conditions and the perceived adequacy of tribal or Bureau
of Indian Affairs social services or judicial systems may not be considered
in a determination that good cause exists.
(d)
The burden of establishing good cause to the contrary shall be on the
party opposing the transfer.
Id.
at 67583, 67591.
*964
The tribe sought reconsideration of the court's determination that it
had jurisdiction over Jeremiah. Two additional hearings were held, and
on October 6, 1983, the court reaffirmed its July 1982 decision. The court
found that "the relocation of the child with [the adoptive couple]
was done with the intent to transfer to [the adoptive couple] full parental
rights ... and with the further intent to abandon all parental rights
in the child." It also concluded that the adoptive couple stood in
loco parentis
to the child as of July 1982. Therefore, the court concluded that Jeremiah
was domiciled in Utah, and the Utah court had jurisdiction over the matter.
The court declined to pass on the merits of the adoption petition, but
advised the parties that it intended to follow the provisions of the ICWA
in ruling upon the petition and stated that the adoptive parents would
be required to prove beyond a reasonable doubt that "continued custody
of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child," as required
by subsection 102(f) of the ICWA. 25 U.S.C. § 1912(f) (1982). The
trial court also acknowledged that prior to its decision, Cecelia had
withdrawn her consent to adoption.
A hearing on the petition
for termination of Cecelia's parental rights was finally scheduled for
October 22, 1984, one year after the Utah court's second jurisdictional
ruling. Ten days before the hearing date, the District Court of the Navajo
Nation for Window Rock, Arizona, handed down a decision finding that Jeremiah
had been domiciled within the boundaries of the Navajo reservation at
all relevant times and that the Navajo tribe had exclusive jurisdiction
to determine his custody under tribal statutes, common law, and the ICWA.
The Navajo Nation immediately filed a motion with the Utah court requesting
that it give full faith and credit to the tribal court's order and dismiss
the Utah proceedings. The tribe relied upon subsection 101(d) of the ICWA,
which provides:
[E]very
State ... shall give full faith and credit to the public acts, records,
and judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give full faith
and credit to the public acts, records, and judicial proceedings of any
other entity.
25 U.S.C. § 1911(d) (1982).
At the October 22, 1984,
hearing, the trial court denied the Navajo Nation's motion
on grounds that it was untimely and proceeded with the adoption matter.
On January 28, 1985, the court handed down *965
its ruling. The court granted the adoption petition, finding as follows:
(1)
That the evidence (including expert testimony) established beyond a reasonable
doubt that to return Jeremiah to his Indian custodians would result in
serious emotional or physical damage to him;
(2)
That active efforts have been undertaken to attempt the rehabilitation
of the Indian family and have failed; and
(3)
That the biological mother knowingly and voluntarily abandoned the child
as defined in Utah Code Annotated 78-3a-48(1).
[FN3]
FN3.
The trial court's findings 1 and 2 were made in response to the requirements
contained in subsections 102(d) and (f) of the ICWA, which provide:
(d)
Any party seeking to effect a ... termination of parental rights to an
Indian child under State law shall satisfy the court that active efforts
have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful.
....
(f)
No termination of parental rights may be ordered in such proceeding in
the
absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
25
U.S.C. § 1912(d), (f) (1982).
This appeal followed.
[FN4]
FN4.
During the pendency of the appeal to this Court, the tribe filed an action
in the United States District Court for the District of Utah against the
state district court, the trial judge, and the adoptive parents, alleging
various constitutional and statutory violations. On September 30, 1985,
the federal court granted summary judgment against the tribe, holding,
in pertinent part, that the domicile issue was pending before the Utah
Supreme Court and, therefore, was not ripe; that the claims for declaratory
judgment and relief for civil rights violations were likewise not ripe;
and that the Utah court was not required to relinquish jurisdiction to
the tribal court as a matter of full faith and credit.
The Navajo Nation raises
a number of challenges to the trial court's rulings, but the pivotal issue
is whether the Utah court properly decided that it had jurisdiction.
Because it did not, this appeal may be resolved without reaching the remaining
issues.
In determining the correctness
of the trial court's assumption of jurisdiction over Jeremiah, we must
look to federal law, for the ICWA grants state courts jurisdiction to
act regarding Indian child custody and adoption matters under only limited
circumstances, while it grants tribal courts broad jurisdiction over such
matters. The pivotal provisions of the ICWA are subsections 101(a) and
(b). 25 U.S.C. § 1911(a), (b) (1982). Subsection 101(a) grants an
Indian tribe exclusive
jurisdiction over child custody proceedings when they involve a child
"who resides or is domiciled within the reservation of such tribe."
25 U.S.C. § 1911(a) (1982). And even when the Indian child is not
residing or domiciled within the reservation, subsection 101(b) provides
that a state court must transfer any custody proceeding concerning such
an Indian child to the courts of the child's tribe if the tribe so requests,
unless the state court determines that good cause exists for refusing
to make the transfer. 25 U.S.C. § 1911(b) (1982).
These provisions are
at the heart of the ICWA. The ICWA was passed in 1978 in response to congressional
findings that
an
alarmingly high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal public and
private agencies and that an alarmingly high percentage of such children
are placed
in non-Indian foster and adoptive homes and institutions; and
....
...
the States, exercising their recognized jurisdiction over Indian child
custody proceedings through administrative and judicial bodies, have often
failed to recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian communities and
families.
25 U.S.C. § 1901(4), (5) (1982). The broad grant of jurisdiction
to tribes and the narrowing of state court authority were aimed *966
at preventing these perceived evils. The importance of tribal primacy
in matters of child custody and adoption cannot be minimized, for the
ICWA is grounded on the premise that tribal self-government is to be fostered
and that few matters are of more central interest to a tribe seeking to
preserve its identity and traditions than the determination of who will
have the care and custody of its children. H.R.Rep. No. 95-1386, 95th
Cong., 2d Sess. 19, reprinted
in 1978 U.S.Code
Cong. & Ad.News 7530, 7541; cf.
Wakefield v. Little Light,
276 Md. 333, 347 A.2d 228, 234 (1975).
In the present case,
the propriety of the trial court's assumption of jurisdiction turns on
Jeremiah's domicile at the time these proceedings were initiated. The
trial court asserted jurisdiction under subsection 101(b) of the ICWA
after having determined that Jeremiah was not a domiciliary of the reservation.
The determination that Jeremiah was not domiciled on the reservation
was based upon the trial court's finding that Jeremiah's mother had sent
him off the reservation with the intent to abandon her parental rights,
an act that transferred his domicile to that of his adoptive parents.
If, in fact, the trial court's determination of domicile was correct,
subsection 101(b) is applicable and the state court properly could exercise
jurisdiction under the conditions set out in that section. However, if
Jeremiah was a domiciliary of the reservation, subsection 101(a) is the
applicable provision and the tribe had exclusive jurisdiction. Under those
circumstances, the state court would not have had any right to proceed.
Because federal law is
supreme, the jurisdictional provisions contained in the federal statute
are controlling where applicable. See
U.S. Const. art. VI, cl. 2; McCulloch
v. Maryland,
17 U.S. (4 Wheat.) 316, 326-27, 4 L.Ed. 579 (1819). The ICWA does not
expressly define how domicile is to be established. The Bureau of Indian
Affairs' guidelines for implementing the ICWA, however, state that
definitions
[of domicile] were not included [in the Act or the guidelines] because
these terms are well defined under existing state law. There
is no indication that these state law definitions tend to undermine, in
any way, the purposes of the Act.
44 Fed.Reg. 67583, 67585 (1979) (not codified) (emphasis added).
The law of domicile applicable
here is well-established. At birth, an illegitimate
child acquires the domicile of his or her mother. Morse
v. Steed, 7
Utah 2d 312, 314, 324 P.2d 773, 775 (1958); Restatement (Second) of Conflict
of Laws § 22, comment c (1971). If the parents abandon the child,
the child acquires the domicile of the party who stands in
loco parentis
to him or her and with whom he or she lives at the time of abandonment.
Restatement (Second) of Conflict of Laws § 22, comment i (1971).
However, unless a child is abandoned, or his or her domicile is otherwise
lawfully changed, the child retains the mother's domicile, even if he
or she lives apart from her. Restatement (Second) of Conflict of Laws
§ 22, comment c (1971).
Under these principles,
Jeremiah was a domiciliary of the Navajo Nation and subject to its exclusive
jurisdiction from his birth at least until he was removed from the reservation
by his aunt. The critical issue is whether Jeremiah's domicile changed
upon his removal from the reservation in March of 1980. After hearing
testimony from all concerned, the trial court found that Cecelia intended
to abandon the child, either when he was first sent off the reservation
or shortly thereafter, but in any event before she appeared before the
trial court to sign the consent to adoption in May of 1980. The Navajo
Nation challenges this finding.
As a general matter,
abandonment occurs when a parent deserts a child or places a child with
another with an intent to relinquish all parental rights and obligations.
See Wilson v.
Pierce, 14
Utah 2d 317, 383 P.2d 925
(1963). And the intent to abandon or the actual physical abandonment must
be shown by clear and convincing evidence. Robertson
v. Hutchison,
560 P.2d 1110, 1112 (Utah 1977); Restatement *967
(Second) of Conflict of Laws § 22, comment e (1971). The record before
us indicates that there is sufficient evidence to support the trial judge's
finding of abandonment sometime before the May 1980 consent to adoption
was executed.
When Cecelia gave Jeremiah
to her sister for removal from the reservation, she did not express an
intent to abandon Jeremiah or conduct herself in such a way as to indicate
that she intended to relinquish her parental rights. Although the adoptive
father testified that the aunt had made adoptive placement arrangements
prior to taking Jeremiah off the reservation, the aunt denied this. And
Cecelia testified that while she and the aunt had discussed the possibility
of placing Jeremiah for adoption, she understood that Jeremiah was being
placed on a temporary basis in a foster home. Therefore, when Jeremiah
initially was removed from the reservation, his domicile did not change.
Had any questions relating to his custody been raised by any party immediately
after the initial removal, the determination of those questions would
have been within the exclusive province of the Navajo courts. See
25 U.S.C. § 1911(a) (1982).
Two weeks after Jeremiah
was removed from the reservation, however, his mother learned that he
was in an adoptive home and that adoption was contemplated, yet she
permitted him to remain there. Although the matter is not free from doubt,
we consider that on the basis of these facts, the trial court properly
could find, as it did, that Jeremiah's natural mother abandoned him prior
to appearing in the Utah court in May of 1980 and signing the consent
to adoption. Under traditional rules of law, Jeremiah's domicile would
have changed from the reservation to Utah County at that time. It is upon
that premise that the trial court apparently based its decision.
As noted earlier, questions
of domicile were left to be decided under state law. However, this was
only because Congress saw no apparent conflict between state domicile
law and the purposes of the ICWA. As the Bureau of Indian Affairs' guidelines
note when referring to the fact that state domicile law governs under
the ICWA, "[t]here is no indication that these state law definitions
tend to undermine, in any way, the purposes of this Act." 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 cannot be permitted to operate
"as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress." Hines
v. Davidowitz,
312 U.S. 52, 67-68, 61 S.Ct. 399, 404-405, 85 L.Ed. 581 (1941). If it
does, state law is preempted. Id.
at 73-74, 61 S.Ct. at 407-408. And even if Congress did not intend to
preempt state domicile
law, state law must bow when the application of that law brings the state
and federal policies into conflict. See,
e.g., Perez v. Campbell,
402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971).
The Supreme Court has
made it clear that where Indian affairs are concerned, a broad test of
preemption is to be applied. In New
Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983), the Supreme Court
stated: " 'The unique historical origins of tribal sovereignty' and
the federal commitment to tribal self-sufficiency and self-determination
make it 'treacherous to import ... notions of pre-emption that are properly
applied to ... other [contexts].' " 462 U.S. at 334, 103 S.Ct. at
2386 (quoting White
Mountain Apache Tribe v. Bracker,
448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980)). The Court
went on:
By
resting pre-emption analysis principally on a consideration of the nature
of the competing interests at stake, our cases have rejected a narrow
focus on congressional intent to pre-empt state law as the sole touchstone....
State jurisdiction
is pre-empted by the operation of federal law if it interferes or is incompatible
with federal and tribal *968
interests reflected in federal law,
unless the state interests at stake are sufficient to justify the assertion
of state authority.
Id.
(emphasis added). In considering the "federal and tribal interests"
at stake in such an analysis,
traditional
notions of Indian sovereignty provide a crucial 'backdrop' ... against
which any assertion of state authority must be assessed. Moreover, both
the tribes and the Federal Government are firmly committed to the goal
of promoting tribal self-government, a goal embodied in numerous federal
statutes.
Id.
at 334-35, 103 S.Ct. at 2386-87 (citations and footnote omitted).
In this case, the interrelationship
of Utah's domicile law and Utah's abandonment law operates to deprive
the Navajo Nation of the exclusive jurisdiction over Jeremiah which subsection
101(a) of the ICWA otherwise confers upon it. We think, based on the ICWA's
stated purposes and its jurisdictional provisions, that Congress intended
that as a general principle, Indian tribes should have authority to determine
custody issues involving Indian children. With respect to those resident
on reservations, the tribes' jurisdiction is exclusive. 25 U.S.C. §
1911(a) (1982). Congress recognized that some Indian children are resident
off of the reservation. However, even with respect to these children,
it mandated that state courts cede jurisdiction to tribal courts except
where certain very stringent criteria were satisfied. Id.
at § 1911(b). In effect, Congress used the domicile of the child
as a basis for distinguishing between those who maintain close ties with
the tribe and, therefore, should be subject to its exclusive control and
those who are sufficiently removed from the tribe and its ways to justify
giving jurisdiction over them to non-Indian courts in certain circumstances.
This is not an illogical assumption since, like Utah, most states hold
that a minor child's domicile is that of his or her parents. See
25 Am.Jur.2d Domicile
§ 63 (1966). But, here, through the application of the law of abandonment
that operates to change a minor child's domicile, the domicile of Jeremiah's
mother is no longer attributable to him; instead, he assumes the domicile
of his non-Indian parents. The obvious ease with which abandonment law
can be used to shift the domicile of a reservation domiciliary's minor
child and to thwart the jurisdictional rationale of the ICWA indicates
that this interplay of domicile and abandonment law was not foreseen by
Congress.
In this case, Jeremiah,
a reservation domiciliary, was removed from the reservation and placed
for adoption with non-Indians with the clear intent of circumventing the
right granted the tribe by the ICWA to exclusive control over Jeremiah's
custody. Jeremiah's aunt testified that she concealed her intention to
remove Jeremiah from the reservation from the Navajo Division of Social
Welfare despite her knowledge that the Division was attempting to handle
Jeremiah's situation at the time. She explained that if the Division had
learned of her concerns about Jeremiah's being raised by his maternal
grandparents, it might have placed him in another Indian home on the reservation.
She testified that she did not want him placed in an Indian home because
she thought that other Indian homes would have drinking problems similar
to those plaguing Jeremiah's family and that Jeremiah could learn about
his Indian heritage later. The tribe learned of Jeremiah's proposed adoption
only after the Utah court had found that the child's domicile had shifted
to Utah, thus providing the state court with jurisdiction over him pursuant
to the ICWA. The tribe was informed of both the proposed adoption and
Jeremiah's new domicile by the notice sent at the direction of the Utah
court. The tribe received this notice approximately five months after
Jeremiah's mother executed the consent to adoption and seven months after
Jeremiah had been removed from the reservation.
By taking Jeremiah off
the reservation and placing him in an adoptive home, the aunt took all
the steps necessary to effect a change of his domicile under Utah law
before Cecelia was brought to Utah County to sign a consent to adoption.
By a confluence of actions, therefore, Jeremiah's aunt, *969
mother, and adoptive parents managed to remove him from the exclusive
jurisdiction granted the Navajo courts by subsection 101(a) of the ICWA
and to trigger the alternative jurisdictional provisions of subsection
101(b). By invoking subsection 101(b), the adoptive parents were later
able to persuade the Utah court to retain its jurisdiction over Jeremiah
despite protestations by the tribe and by Jeremiah's mother who, by this
time, had revoked her consent to adoption. Thus, by the actions they took
in removing Jeremiah from the reservation, the aunt, mother, and adoptive
parents effectively conferred jurisdiction
upon the Utah court, a court which quite frankly might be expected to
be more receptive than a tribal court to Jeremiah's placement with non-Indian
adoptive parents. Yet this receptivity of the non-Indian forum to non-Indian
placement of an Indian child is precisely one of the evils at which the
ICWA was aimed. See
H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 21, reprinted
in 1978 U.S.Code
Cong. & Ad.News 7530, 7532-33.
The shifting of Jeremiah's
domicile by abandonment also frustrated another provision of the ICWA.
Under subsection 103(a), a parent cannot validly consent to a termination
of parental rights unless such consent is "executed in writing and
recorded before a judge of competent jurisdiction." 25 U.S.C. §
1913(a) (1982). Had Cecelia's consent to adoption been sought at the time
Jeremiah was still on the reservation, the only court of competent jurisdiction
would have been a Navajo Nation court. Such a proceeding would have alerted
the tribe to the plan to remove the child from the reservation and would
have given the tribe an opportunity to assert its interest and to invoke
the exclusive jurisdiction of the tribal court.
To the extent that Utah
abandonment law operates to permit Jeremiah's mother to change his domicile
as part of a scheme to facilitate his adoption by non-Indians while she
remains a domiciliary of the reservation, it conflicts with and undermines
the operative scheme established by subsections 101(a) and 103(a) to deal
with children of domiciliaries of the reservation and weakens considerably
the tribe's ability to assert its interest in its children. The protection
of this tribal interest is at the core of the ICWA, which recognizes that
the tribe has an interest in the child which is distinct from but on a
parity with the interest of the parents. This relationship between Indian
tribes and Indian children domiciled on the reservation finds no parallel
in other ethnic cultures found in the United States. It is a relationship
that many non-Indians find difficult to understand and that non-Indian
courts are slow to recognize.
[FN5] It is precisely in recognition *970
of this relationship, however, that the ICWA designates the tribal court
as the exclusive forum for the determination of custody and adoption matters
for reservation-domiciled Indian children, and the preferred forum for
nondomiciliary Indian children. Utah 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.
FN5.
The tribe's unique and independent interest in its children was recognized
prior to the enactment of the ICWA. In Wisconsin
Potowatomies of the Hannahville Indian Community v. Houston,
393 F.Supp. 719 (W.D.Mich.1973), the court considered whether a Michigan
state court or the tribe had jurisdiction to determine the custody of
orphaned half-blood Indian
children who were enrolled members of the Potowatomie tribe. Although
the children were living off the reservation when their parents died,
the court found that domicile rather than residence was determinative
of jurisdictional authority and that the children were domiciled on the
reservation. Finding that the tribe was authorized under federal constitutional
and common law to determine the children's custody, the court explained:
"If tribal sovereignty is to have any meaning at all ... it must
necessarily include the right, within its own boundaries and membership,
to provide for the care and upbringing of its young, a sine
qua non to
the preservation of its identity." Id.
at 730.
The
facts in Wakefield
v. Little Light,
276 Md. 333, 347 A.2d 228 (1975), are more closely on point. In Wakefield,
an Indian mother granted a non-Indian couple permission in writing to
"take [her child] with them and be responsible for him wherever they
are" and even joined in a petition to have the child declared neglected
and made a ward of the Crow court. The non-Indian custodians were appointed
guardians by the Crow court and thereafter moved to Maryland. Approximately
one year later, they filed a petition for permanent custody with the Maryland
court. The Maryland Court of Appeals held that the Maryland courts should
not exercise jurisdiction, despite the significant contacts that the child
had off of the reservation. The court stated that "there can be no
greater threat to
'essential tribal relations' and no greater infringement on the right
of the Crow tribe to govern themselves than to interfere with tribal control
over the custody of their children." Id.
at 237-38. The court further acknowledged that "the special vestiges
of Indian sovereignty ... reinforce the policy not to easily imply the
guardian's authority to shift domicile to another state." Id.
Congress explicitly affirmed the holdings of both Wakefield and Wisconsin
Potowatomies in enacting the ICWA. H.R.Rep. No. 95-1386, 95th Cong., 2d
Sess. 21, reprinted
in 1978 U.S.Code
Cong. & Ad.News, 7530, 7544.
In reaching the conclusions
that Utah law is superseded, we recognize that we are not literally adhering
to the Bureau of Indian Affairs' guidelines which provide that state law
is to be relied upon in defining the term "domicile" as it is
used in the ICWA. 44 Fed.Reg. 67583, 67585 (1979) (not codified). Yet,
as the Bureau itself stated in its introduction to the guidelines, "[p]rimary
responsibility for interpreting ... language used in the Act [other than
that delegated expressly to the Secretary of the Interior] ... rests with
the courts that decide Indian child custody cases." Id.
at 67584. In construing the ICWA's terms, administrative interpretation
is important, but it is not controlling. Id.
(citing Batterton
v. Francis,
432 U.S. 416, 424- 25, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977)). And,
as noted earlier, even the
Bureau's guidelines implicitly recognize that if a state law definition
of domicile "tend[s] to undermine, in any way, the purposes of the
[ICWA]," it would not be appropriate to use it. Id.
at 67585. By relying on the Utah definition of domicile, but ignoring,
for ICWA purposes only, the effect abandonment has on that definition,
we are complying with what we determine to be Congress's intent that tribal
courts have exclusive jurisdiction in child custody cases over the minor
children of their reservation domiciliaries.
[FN6] Following this analysis, Jeremiah was domiciled on the reservation
and was subject to the tribal court's exclusive jurisdiction under subsection
101(a) of the ICWA. Therefore, the Utah court lacked jurisdiction and
its orders were void. Any further proceedings regarding Jeremiah's custody
or adoption must be had in the Navajo courts.
[FN7]
FN6.
Of course, if the mother had changed her domicile from the reservation,
then the domicile of her child also would have changed. Under such circumstances,
subsection 101(b) properly would apply and a state court would have jurisdiction
over child adoption and custody matters, at least to the extent that it
found that transfer to the tribe was not required by that section.
FN7.
Justice Stewart concurs in this result, but on the ground that pursuant
to subsection 103(c) of the ICWA, the trial court should have returned
Jeremiah to his mother on the reservation when she revoked her consent
to adoption, which she did prior to the entry of the adoption decree.
Justice Stewart reasons that had the court returned Jeremiah to the reservation
at that point, Jeremiah would have become a domiciliary of the reservation
and thus would have been subject to the tribal court's exclusive jurisdiction
under subsection 101(a). Justice Stewart's opinion must be based on the
assumption that Cecelia did not abandon Jeremiah pursuant to Utah law,
for the validity of Cecelia's consent and, consequently, the revocation
of her consent depend upon her legal authority with respect to Jeremiah.
Once a court determines that a parent has abandoned a child, the parent
is stripped of his or her authority over the child, and any consent to
adoption the parent might offer is superfluous. U.C.A., 1953, § 78-30-5
(1977 ed.); see,
e.g., In re McKinstray,
628 P.2d 1286 (Utah 1981). Here, therefore, if Cecelia did not abandon
Jeremiah, his domicile never would have shifted away from the reservation
and the tribe would have had exclusive jurisdiction over him pursuant
to subsection 101(a) of the ICWA. Under that scenario, there would be
no need to resort to Justice Stewart's analysis to rule in favor of the
Navajo Nation. If, however, Cecelia did abandon Jeremiah under Utah law,
neither her consent to adoption nor the revocation of that consent was
valid, and the
Utah court's refusal to return Jeremiah to the reservation based on her
revocation was proper.
Our ruling is supported
by two other state courts which have considered the reach of the ICWA's
jurisdictional provisions under nearly identical fact situations. Neither
court found that the removal of an *971
Indian child from the reservation for adoption purposes changed the child's
domicile so as to defeat the tribe's exclusive jurisdiction. In In
re Pima County Juvenile Action No. S-903,
130 Ariz. 202, 635 P.2d 187 (Ariz.Ct.App.1981), cert.
denied, 455
U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982), the Arizona Court of
Appeals held that an Indian child born on the reservation to a domiciliary
of the Navajo reservation retained the reservation domicile and was subject
to the exclusive jurisdiction of the Navajo courts, despite the fact that
the mother had consented to the child living with the prospective adoptive
parents off the reservation at the time the proceedings were initiated.
[FN8] Similarly, in In
re Baby Child,
102 N.M. 735, 700 P.2d 198 (N.M.Ct.App.1985), the New Mexico Court of
Appeals concluded that an illegitimate child born to a mother domiciled
within the Pueblo of Laguna was a domiciliary of that Pueblo, even though
the mother had signed a consent to adoption in favor of non-Indian parents
and, at the time of the appellate court's ruling, the child had been living
with the adoptive parents away from the
Pueblo for two years. Applying state domicile law, the New Mexico court
held that the illegitimate child assumed its mother's domicile at birth.
[FN9] Any actions affecting the child's custody, therefore, were within
the exclusive jurisdiction of the tribal courts.
[FN10]
FN8.
In Pima County,
the court, although analyzing the domicile issue, did state that in enacting
the ICWA, Congress "replac[ed] the outmoded geographical concepts
of presence or domicile with a jurisdictional standard based on the ethnic
origin of the child." Id.
130 Ariz. at 204, 635 P.2d at 189. We do not agree that Congress completely
disregarded domicile as a basis for fixing jurisdiction; it remains an
important concept. See
25 U.S.C. § 1911(a), (b) (1982); see
also n. 5,
supra.
However, we do agree with the Arizona court's conclusion with respect
to the tribe's jurisdiction over the child.
FN9.
New Mexico law, similar to Utah's, mandates that a child who is orphaned
or abandoned by both parents is domiciled in the place to which he or
she is most closely related, which generally is at the home of the person
who stands in
loco parentis
to the child. Montoya
v. Collier,
85 N.M. 356, 359, 512 P.2d 684, 687 (1973) (abandonment concept adopted
in dicta). On the facts presented, the court in Baby
Child need
not have, and
did not, reach the question whether by abandonment, Indian parents can
change their child's domicile under New Mexico law and thereby circumvent
the jurisdiction of the tribal courts under the ICWA. In Baby
Child, the
Indian mother consented to place her child for adoption, but she did not,
nor did the father, previously abandon that child. Thus, that case is
distinguishable from the present one on that factual and legal basis.
FN10.
Initially, the child's father and the Pueblo moved to dismiss the action
on grounds of lack of jurisdiction before the New Mexico trial court.
The trial court denied that motion and subsequently entered a decree of
adoption. The father and the Pueblo moved for relief from the decree under
Rule 60(b) of the New Mexico Rules of Civil Procedure, and the trial court
denied that motion. The father and the Pueblo then sought and were denied
a writ of prohibition from the New Mexico Supreme Court. The denial of
the writ was appealed to the United States Supreme Court. The Supreme
Court noted probable jurisdiction over the appeal, In
re Baby Child,
102 N.M. at 736, 700 P.2d at 199, but the matter was rendered moot by
the cited opinion of the New Mexico Court of Appeals finding, on appeal
from the trial court's denial of the father and the Pueblo's motion for
relief from the decree of adoption under Rule 60(b), that the New Mexico
courts lacked jurisdiction.
In reaching the conclusion that the Navajo Nation has exclusive jurisdiction
over Jeremiah, we are acutely aware that this decision, if it ultimately
results in the removal of Jeremiah from his current home, will disrupt
the strong emotional bonds which have developed between Jeremiah and his
adoptive parents over the past six years and can result only in a great
deal of pain and anguish. Unfortunately, the legal system is ill-equipped
to deal with these very real problems. Judicial and administrative delays
in this case have hindered a timely resolution of the legal issues, and
during this time Jeremiah has developed a stable and ever-deepening relationship
with his custodial parents.
The adoptive parents argue that we should consider the bonding that has
taken place between themselves and Jeremiah in reaching a decision in
this matter. While stability in child placement should be a paramount
value, Fontenot
v. Fontenot,
714 P.2d 1131 (Utah 1986), it cannot be the *972
sole yardstick by which the legality of a particular custodial arrangement
is judged. Such a standard would reward those who obtain custody, whether
lawfully or otherwise, and maintain it during any ensuing (and protracted)
litigation. In any event, here we have no choice in the matter: federal
law prohibits the Utah courts from exercising jurisdiction. Instead, we
must defer to the experience, wisdom, and compassion of the Navajo tribal
courts
to fashion an appropriate remedy. We hope that the tribal courts will
consider the tribe's slow response to the notice of the Utah adoption
proceeding as well as the value of stability in child placement and will
recognize the strong bonds Jeremiah has developed with his adoptive parents.
The Navajo Nation now
has established its exclusive right to determine Indian child custody
matters. Having established that right, we are confident that the courts
of the Navajo Nation will give the petition for adoption the careful attention
it deserves and will act with the utmost concern for Jeremiah's well-being.
[FN11]
FN11.
An innovative approach to adoption, called an open adoption, is gaining
increased recognition among professionals in the adoption field and may
be suited to this case. A fundamental concept of an open adoption is to
allow some communication between adoptive and natural parents and, when
appropriate, to permit communication between the natural parent and the
child as the child grows up. See
generally S.
Arms, To Love
and Let Go
(1973). This approach presents some creative possibilities in the instant
case: an arrangement might be reached which would allow Jeremiah to remain
with his adoptive parents but also would permit the tribe to teach the
child about his Indian heritage. We make this statement as an observation
only, recognizing that the matter is not ours to decide.
HALL, C.J., and DURHAM, J., concur.
STEWART, Associate Chief
Justice: (concurring in result).
I concur in the result
reached by the majority, but for a different reason. Section 1913(c) of
Title 25 U.S.C. (1982), which is part of the Indian Child Welfare Act,
states:
In
any voluntary proceeding for termination of parental rights to, or adoptive
placement of, an Indian child, the consent of the parent may be withdrawn
for any reason at any time prior to the entry of a final decree of termination
or adoption, as the case may be, and the child shall be returned to the
parent.
In this case, Cecelia,
the natural mother, consented in open court to Jeremiah's adoption on
May 30, 1980. Some two years later, on April 30, 1982, but before a judicial
termination of her parental right or the entry of an adoption decree,
she revoked her consent and requested that Jeremiah be returned to her.
Despite the mandatory language of § 1913(c), the trial court did
not order the child returned to its mother. Rather, the trial court, apparently
sua sponte,
converted the voluntary termination proceeding into an involuntary proceeding
and awarded temporary custody of Jeremiah to the putative
adoptive parents. Thereafter, the court granted the petition for adoption.
The ICWA does not provide
that upon a natural parent's revocation of his or her consent to adopt,
a court may order that the child may be placed in temporary custody with
someone other than the natural parent pending a determination of the natural
parent's fitness. Rather, it states that "the child shall
be returned
to the parent" upon revocation of consent. (Emphasis added.) The
Navajo tribal court would have had exclusive jurisdiction, had Jeremiah
been returned to his natural mother as mandated by the statute when the
natural mother revoked her consent. The state trial court erred, therefore,
in not ordering the child returned to his mother or the tribe.
I do not concur in the
majority opinion because I believe that the majority's holding concerning
Jeremiah's domicile is incorrect. In my view, the trial court initially
exercised jurisdiction over Jeremiah in a proper manner and, but for the
effect of 25 U.S.C. § 1913(c), correctly concluded that Jeremiah's
domicile was in Utah, thereby *973
making him subject to adoption. Furthermore, the Navajo tribe's waiting
two years after notice to make an appearance in the Utah court amounted
to a waiver of the tribe's rights.
The majority argues in
footnote 7 that I assume that Cecelia could validly consent
to the adoption and thereafter revoke that consent and that that assumption
presupposes an absence of abandonment on her part. The authorities cited
by the majority for the proposition that an abandonment precludes a valid
consent to an adoption are not on point. At the time of both the consent
and the revocation, no final decree of abandonment had been entered by
the trial court. Under those circumstances, both the consent and the revocation
were clearly valid for the legal effect that Cecelia intended. After the
revocation of consent, the trial court in effect made the finding that
Jeremiah had been abandoned.
Under the circumstances,
the majority's expansive employment of the preemption doctrine is not
justified by the ICWA in this case. Certainly state courts must, and do,
have jurisdiction over adoption proceedings of Indian children in some
cases. Here, the tribe showed no interest in the child for over two years
and the child's parent had plainly abandoned him, as even the majority
concedes. I do not believe that the trial court was without jurisdiction
under those circumstances.
HOWE, Justice: (dissenting).
I disagree with the majority
that Cecelia's acts of abandonment did not deprive
the Navajo tribe of jurisdiction.
The majority opinion
concedes that the evidence supports the determination of the trial court
that Cecelia intended to abandon her child, either when he left the reservation
or shortly thereafter, but in any event before she appeared to sign the
consent to adoption in May of 1980. Then the majority opinion proceeds
to apply the "special provisions of the ICWA" to reverse the
trial court and conclude that Cecelia's acts of abandonment did not deprive
the tribe of jurisdiction.
The majority opinion
states that the ICWA does not expressly define how domicile is established
under the act. It accepts the guideline of the Bureau of Indian Affairs
for implementing the ICWA, which states that definitions of domicile were
not included in the act because these terms are well-defined under existing
state law. "There is no indication that these state law definitions
tend to undermine, in any way, the purposes of the act." However,
contrary to the above statement, the majority then attempts to demonstrate
how state definitions do undermine the act, and concludes that Utah's
common law of domicile is pre-empted by the ICWA. I cannot accept that
reasoning. I believe that the BIA guideline means exactly what it says
and that the trial court properly applied Utah case law on domicile.
It is frequently pointed
out that America is a mobile nation. Our Indian people
are no exception. Indian people are perhaps even more mobile because of
the fact that it is increasingly difficult for them to make a living within
the confines of their reservations. Many of the cities and towns in Utah
have Indian residents who frequently return to the reservation to visit
relatives and perhaps care for property there. Much like students and
others who come and go, the domicile of Indians must be determined on
an individual case basis. I find the majority opinion to be unpersuasive
as to why special rules need to be applied to Indian people respecting
their domicile. The purposes of the ICWA, much like our state laws on
taxation and elections, will not be defeated because of the mobility of
our nation.
732 P.2d 962, 55 USLW
2383
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