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Although I cannot link the actual documentary of Blood Memory as it must be individually purchased, I highly recommend not only doing so, but also exploring this Viewer Discussion Guide as it provides perspective on the Native impact of the Era of Adoption, and the decades of effort towards ICWAs' creation and subsequent legal defense. One example of Guide was that was staggering:

In 2012-2013 the First Nations Repatriation

Institute (FNRI) conducted an anonymous survey, "American Indian and White Adoptees: Are There

Mental Health Differences?"

There were 336 total respondents, of which 129

identified as American Indian.

Of the 129 American Indian respondents FNRI

analyzed 95 who had also been in contact with

their birth families with the following results:

Today, American Indian/Alaska Native children remain 3 times more likely than white children to

be placed in foster care nationwide.

In South Dakota, American Indian children are 10

times more likely than white children to be placed

in foster care, and in Minnesota, they are nearly 22

times more likely to be placed in foster care.

47 of 95 experienced Emotional Abuse

44 of 95 experienced Physical Abuse

23 of 95 experienced Sexual Abuse

43 of 95 Contemplated or Planned Suicide

20 of 95 Attempted Suicide

51 of 95 had been in therapy for the emotional, physical or sexual abuse

71 of 95 reported depression (CDC reports

1/10 Americans suffer from depression, this

study resulted in 84.5% for A.I. Adoptees)

15 of 95 had been hospitalized for mental health conditions

The Documentary itself delves into this and goes over quite a lot more, including a discussion of the past and current challenges to ICWA and a particular investigation into the attorney at the center of much of it: Mark Fiddler. He is the only reason this documentary came into my radar as his connections to both the Baby Girl vs. Adoptive Couple and Haaland v. Brackeen cases are a key piece of information emphasized by the This Land Podcast. Their investigation revealed his widespread connections and tireless efforts to tear down ICWA. This transcript of a clip from the documentary used in the podcast displays a small example of the brazen and racist mentality that drives many of the parties involved in the attacks on ICWA:

I mean, I get tired of Indian people carrying around this victim mentality so that everything that happens with ICWA is like some kind of assault on them. I mean, you want to talk about getting out of a self-defeating narrative, that’s a good one to get rid of, the idea that Indians are victims.

Ultimately, this supplemental source is most beneficial as it projects native voices and experiences about this topic. Something you cant get from reading just court documents.

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A Podcast by Cooked Media about the history behind ICWA, challenges to constitutionality like Haaland v. Brackeen, and Tribal Sovereignty. 

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A Podcast by Cooked Media about the history behind ICWA, challenges to constitutionality like Haaland v. Brackeen, and Tribal Sovereignty. 

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Also Available on Spotify, this podcast is long, but well worth a listen. It should also be mentioned that the investigative journalists behind this podcast were responsible for the uncovering of significant information about the underlying conspiracy between Gibson-Dunn, the Brackeens Attorney's, the States involved in the case, The Goldwater Institute, and Big Oil companies. Additionally, they go beyond just the legal analysis, but delve into the Native perspective, and the cultural and societal toll the sidestepping of this act has on tribes and mothers. One subtopic they touch upon that I also consider interesting is their close analysis of the couple - The Brackeens - that made this case possible. Id say its almost essential to fully understanding the weight, scope, and significance of ICWA and Haaland v. Brackeen. Bellow are key snippets from the Podcast that stuck with me.

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How a string of custody battles over Native children became a federal lawsuit that threatens everything
from tribal sovereignty to civil rights.

About this Podcast

The award-winning documentary podcast This Land is back for season 2.
Host Rebecca Nagle reports on how the far right is using Native children to attack American Indian tribes and advance a conservative agenda.

ALM - as referred to in court documents - is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn't. The Brackeens' case would have been a normal adoption dispute, but then one of the most powerful corporate law firms in the United States took it on and helped the couple launch a federal lawsuit. Today, the lawsuit doesn't just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights. The second season of This Land is a timely exposé about how the far right is using Native children to quietly dismantle American Indian tribes and advance a conservative agenda.

View All Episodes

Host

Subscribe to our nightly newsletter

What A Day-what's happening, why it matters, and what you can do about it.

Related Photos

Click on the episode pages to see photos, links, and documents from our reporting, as well as additional audio and timelines of the case and custody battles.

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This Land is Crooked Media's 8-episode podcast series hosted by Rebecca Nagle about how a cut and dry homicide opened up an investigation into the treaty rights of five Native American tribes. Find out how this unique case could result in the largest restoration of tribal land in US history.

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Constitutional Colorblindness and The Family

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Constitutional Colorblindness and The Family

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An interesting article that discusses how efforts to address structural racism, such as ICWA, have been increasingly been placed under greater scrutiny and barriers. They discuss how even in the highest court in the land, the supreme court are trending towards a more colorbling approach to legislation that listens and bends to the pleas of the arguing for 'Equal Treatment' under the law --> Something we saw in Haaland v. Brackeen with the petitioners use of the 14th Amendment Equal Protection argument to rhetorically attack ICWA. Heres a small snippet from the article that displays this:

"...Thus, the Court’s ostensible command has been that even programs intended to benefit minority group members—such as affirmative action—must be subjected to the same constitutional regime as undoubtedly invidious uses of race. Undergirding this approach have been empirical and moral claims of the necessity of consistency in treating all uses of race as inherently suspect.3 Scholars have reinforced this account, contending that the Supreme Court has fundamentally turned away from a contextually variable approach to race to one in which all uses of race are treated as presumptively malign" (Pg. 539)

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I found when researching this topic, especially with no legal experience, that wrapping ones head around the particulars of ICWA and the legal loopholes taken by state courts and attorneys quite difficult. Thankfully, papers such as this help breakdown one these subtopics: The Existing Indian Family (EIF) exception.

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Keely Kleven* I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family . . . residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think . . . they destroy him.
-As Louis La Rose (Winnebago Tribe of Nebraska)[1]
I. Introduction
Various state courts have created a judicial exception without express statutory authority known as the "Existing Indian Family" (EIF) exception to override the Indian Child Welfare Act (ICWA). The ICWA was passed to curtail the appalling rate of Indian children being removed from their families and tribes and to promote the security and stability of tribes. Congress faced the following question: Can a Nation and culture survive when its children are removed?Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians during Congressional hearings, stated that "[c]ulturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People."Although the ICWA was enacted to promote the survival of tribes, states have used the EIF exception to justify the continuous removal of Indian children from their tribes and families-the exact opposite of why the ICWA was ratified.

A survey conducted in 1969[5] indicated 25-35 percent of Indian children were placed temporarily or permanently with non-Indian families or institutions.[6] "The adoption rate of Indian children was eight times that of non-Indian children . . . [and] approximately 90% of Indian placements were in non-Indian homes."[7] In response to the disproportionate removal and adoption rate, Congress enacted the ICWA to help safeguard the future of Indian tribes and culture.[8] The ICWA establishes minimum federal standards for the removal of Indian children from their families and established that Indian children, if removed, should be placed in foster or adoptive homes that reflect the unique values of Indian culture.[9] In short, Congress recognized that Indian children are essential to a tribe's survival and that tribes should have the opportunity to determine what is best for their children.[10]

Despite the ICWA's existence and Congress's intent, states continue to remove Indian children pursuant to the EIF exception, which lacks express statutory authority and is instead a judicially created exception. The ICWA applies to Indian children.[11] However, the EIF exception has been used to avoid the ICWA in proceedings involving Indian children. The EIF exception allows state courts to acquire jurisdiction over child custody proceedings when Indian children are not part of an "existing Indian family."[12] The ICWA does not require a child be removed from an existing Indian family; it only requires that there be an Indian child.[13] Yet, various state courts have interpreted Congress's intent as requiring there to be an existing Indian family for the ICWA to apply.[14] As a result, state courts have created ambiguous criteria to curtail the ICWA and to remove Indian children from their families and tribes.

State courts have defined "existing Indian family" in various ways. Alabama found that a child born out of wedlock to a non-Indian mother and an Indian father, who had no contact with the child, was not a part of an Indian family environment and therefore the ICWA did not apply.[15] Kentucky determined the ICWA was not applicable when an Indian mother never contacted her child after voluntarily giving the child up for adoption, and the child was subsequently raised in a non-Indian home with no Indian culture or practices.[16] Similarly, Indiana found the ICWA was not applicable when the child was abandoned by her Indian mother five days after birth and subsequently raised in a non-Indian home.[17] Indiana determined, based on the circumstances, that no Indian family existed and applying ICWA was therefore inappropriate.[18] The EIF, although defined and applied differently in different states, has one common goal-render the ICWA inapplicable.
II. The Indian Child Welfare Act A. Historical Overview of Indian Removal
To understand how the EIF exception renders the ICWA inapplicable, it is critical to understand why states want to avoid the ICWA. Part II of this paper will provide a big-picture, historical overview of state and tribal relations and elaborate on why the ICWA was enacted as well as its effects. Part III will analyze the EIF exception by exploring how it was created, the various ways it has been applied, and its effects. Finally, Part IV will explore possible solutions to stop the persistent removal, by use of the EIF exception, of Indian children from their families and tribes. The continuous use of the EIF exception advances the destruction of tribes. As Congress acknowledged almost 50 years ago, a Nation and culture cannot survive without its children.

This section begins with a historical overview of federal and state policies that effected Indian children and their tribes. The historical policies feed into the tension, in relation to the ICWA, amongst states and tribes that exists today. Finally, this section will address the relevant statutory provisions of the ICWA in relation to the EIF exception.

Indian boarding schools had similar philosophies to missionary schools-assimilation.[24] The Indian Boarding School Era lasted between 1860 and 1970,[25] and Congress began federally funding the program in 1891.[26] The government intentionally withheld rations from Indian parents who refused to send their children to boarding schools.[27]Parents were soon left with a stark reality-send their children to boarding schools or let their children starve. Once Indian children arrived at boarding school, they were stripped of their identities.[28] Indian boys, whose long hair was a tradition of their forefathers, had their heads shaved.[29] All children were stripped of their clothing and belongings, which were replaced with uniforms to remove any sense of individuality.[30] The children's Indian names, which were given to them to pass along traits of honored relatives or leaders, were taken from them and replaced with first and last names of white people.[31] This era has been described as an "'ideological and psychological' war 'waged against [Indian] children.'"[32]
B. State and Tribal Relations Surrounding Sovereignty
Starting in the 1960s and 1970s, state welfare workers began removing Indian children from their families and tribes at alarming rates.[33] State personnel pointed to poverty rates, alcoholism, unemployment, and various other "issues" to justify the removal of children.[34] Patrice Kunesh noted that

Cruelly, the very real effects of the poverty and dependence created by the reservation system,and the corresponding debilitation caused by the diseases and chronic health problems associated with poverty, were used against Indian people as evidence that they were unfit parents and as grounds for the removal of their children.[35]

Alcoholism, mixed with cultural biases, was frequently cited as a justification for removing Indian children.[36] House Reports indicate that where alcohol rates of Indian and non-Indian parents were the same, alcoholism rarely justified removal against non-Indian parents.[37] "When judging the fitness of an American Indian parent, many social workers made decisions based on white middle class norms that were not appropriate in the context of an American Indian family."[38]
C. Statutory Provisions of the Indian Child Welfare Act
States and tribes had a strained relationship before the systemic removal of Indian children and the enactment of the ICWA. The policies leading up to the ICWA and misconceptions of Indian culture, however, are part of the larger issue surrounding tribal sovereignty. "[T]he co‑existence of independent sovereigns-one within the geographical borders of another or others-creates a tension in which disputes naturally arise."[44] Tribal sovereignty was first acknowledged by the Supreme Court in 1831 when Indian tribes were deemed to be "domestic dependent nations."[45]Although tribes were given this designation, Georgia refused to recognize the Court's opinion and continued to claim control over Cherokee land.[46] Four years later, in Worcester v. Georgia,the Court recognized tribes as sovereign and therefore found that tribes cannot be regulated by states.[47] The Court held that the federal government alone had authority in Indian territory and state law had no effect within those bounds.[48] In recognizing sovereignty, the Court noted tribes are responsible for governing their people, communities, and land.[49] Since the Court's earliest decisions regarding tribal sovereignty, tribes and states have continually clashed over who governs and what they govern.[50]

Jurisdictional matters have also resulted in increased tension between states and tribes. Family law matters have largely been left to the states rather than the federal government.[51]

States generally decide cases involving marriage validity, divorce grounds, adoption procedures, paternity claims, and custody standards. This opposition to considering family law issues has developed through both legislation and judicial decision-making.The federal government desires to keep family law issues under state jurisdiction because "[f]amily law is a traditional area of state regulation, and it should be kept separate from the national business of the federal courts.[52]

Tension amongst states and tribes regarding family law matters arose in 1899 in In re Lelah-Puc-Ka-Chee[53]when Iowa appointed a non-Indian guardian to an Indian child that lived on the reservation.[54] The federal court determined that the state lacked jurisdiction because of the child's ethnicity and residence, and therefore the guardianship had no effect.[55]Similar to the aftermath of Worcester, "the federal court's ruling in Lelah-Puc-Ka-Chee was of relative insignificance to state courts who rejected tribal sovereignty and denied independent tribal authority to the Indian nations."[56] The tension between tribes and states regarding family law matters is relevant today as some states, through use of their courts, find ways to avoid the ICWA. One of the ways states have avoided the ICWA is through the use of the judicially created exception known as the EIF exception. To fully understand the EIF exception, an overview of the ICWA's statutory provisions is necessary.
III. The Existing Indian Family Exception
Native women activists, who understood the cultural and familial crisis first-hand, led the charge in raising awareness about the disproportionate, systemic removal of Indian children.[57] Awareness of such removal led Indian families and tribes to the realization that this was not happening only to their tribe or only to one Indian family; it was happening to all tribes and all Indian families across the United States.[58] The Devil's Lake Sioux in North Dakota, in response to the removal of most of their children, asked the Association on American Indian Affairs for support.[59] This spring boarded awareness and eventually led to the ICWA.[60] The ICWA, which was passed in 1978, sets forth procedures that private agencies and state courts must follow when dealing with certain child custody proceedings relating to Indian children.[61]

Child custody proceedings involve foster care placement, termination of parental rights, preadoptive placement, and adoptive placement.[62] Pursuant to 25 U.S.C. § 1903, a child custody proceeding includes the termination of parental rights, which means "any action resulting in the termination of the parent-child relationship."[63] The statutes mandate that tribes have exclusive jurisdiction over child custody proceedings regarding Indian children who either live or are domiciled within the reservation.[64] In other words, the tribe and its affiliate tribal court have control over custody proceedings involving Indian children who are located on the reservation. "The publicly avowed purpose of the ICWA was to end forced acculturation of Native American children into Euro-American society by recognizing a predominantly tribal jurisdiction over tribal child welfare cases."[65] Thus, Congress recognized the need for tribes to govern their own people.
A. Origins of the Existing Indian Family Exception 1. Tribal Cultural, Social, Religious, or Political Activities
In scenarios where Indian children are located off of the reservation, state courts must transfer the Indian child's case to the tribe unless one or both parents object.[66] If the parents object and the case remains in state court, tribes have the authority to intervene at any point in state proceedings.[67] This means the tribe, who is a third party but claims legal interest in the suit because the child is Indian, has the opportunity to participate in the child custody proceeding.[68] The justification for tribal intervention is two-fold. First, it aligns with the spirit of the ICWA as it emphasizes the tribe's interest in keeping children connected to their heritage.[69] Second, it prevents states from making ill-informed decisions to remove children based on cultural ignorance.[70] When custody proceedings involving Indian children take place in state court, active efforts must be made to "prevent the breakup of the Indian family."[71]

The ICWA defines "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."[72] In addition, the term "parent" under the ICWA is defined as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom."[73]

Although the definition of "parent" neither requires the parent to have sufficient connections to their tribe nor custody of the Indian child, courts have used such to justify the EIF exception. There are two exceptions to the application of the ICWA when there is a custody proceeding involving an Indian child: (1) certain juvenile offenses; and (2) divorce cases where custody is at issue.[74] Notably, nowhere in the ICWA is there a definition or exception for "Indian family" or "existing."[75] In fact, the ICWA never mentions the term "existing Indian family" at all.[76] Because there is no language, or definition, in the ICWA pertaining to an existing Indian family or what qualifies as one, the EIF exception is alarming. The EIF exception is a judicial doctrine created by state courts that have historically removed Indian children from their tribes and homes. States that have enacted the EIF exception attempt to retain control over Indian children, which is contrary to the ICWA.

The spirit of the ICWA continues to be dismantled as Indian children are removed from their tribes and families through the creation, and use, of the EIF exception. Although the Bureau of Indian Affairs (BIA) issued regulations in 2016 barring application of the EIF by state courts,[77] there is considerable debate regarding whether the BIA's regulations are actually binding. If binding, the regulations would prevent state courts from considering whether the ICWA is applicable to Indian child custody proceedings based on "participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child's blood quantum."[78] In essence, the various factors found in the regulations ban the EIF exception. On April 6, 2021, the Fifth Circuit ruled in that the BIA regulations are binding.[80] However, this decision will likely be appealed to the United States Supreme Court. Therefore, requires further discussion.

The trial court in Brackeen[82] reviewed a commandeering[83] challenge to the ICWA and whether the BIA had authority to issue binding regulations.[84] The court determined the ICWA was unconstitutional and that the 2016 regulations exceeded the BIA's authority.[85] The court found that the BIA, an administrative agency, violated the Constitution's non-delegation clause, which "prohibits an executive branch administrative agency from exercising legislative powers that the Constitution reserves to Congress."[86]
2. Parental Relationship with the Child
Although the Fifth Circuit agreed with the trial court that the BIA can issue binding regulations, a potential appeal to the United States Supreme Court leaves the constitutionality of the ICWA and authority of the BIA questionable. Three states[87] and seven individuals brought suit against the Government in Brackeen.[88] Of those three states, two still have caselaw supporting the EIF exception.[89] It follows that the states who have previously used the EIF exception or that want to use the EIF exception may do so if the BIA regulations are non-binding. Thus, it is necessary to understand the following questions: How did the EIF exception originate and how has it been implemented? What are the arguments as to its continued use and its elimination? What effect does the exception have on the ICWA?

Generally, there are two main ways the judicial exception has been justified: (1) tribal cultural, social, religious, or political activities; and (2) parental relationship with the child. The subsections that follow include examples of cases that highlight the justifications states use in avoiding the ICWA. Although state courts have arrived at the EIF exception in different ways, the outcome has remained the same-avoid the ICWA.

Several courts have used the EIF exception upon determining an Indian child and/or Indian parent does not have sufficient cultural, social, religious, or political tribal connections. Reliance upon this category of EIF exception cases means non-Indians are once again determining what happens to Indian children-similar to the boarding school and assimilation era discussed above. State personnel are evaluating the sufficiency and "Indianness" of Indian children and Indian parents before applying the ICWA, which is contrary to Congress's intent. The ICWA applies to all Indian children-not to Indian children or Indian parents with "sufficient" cultural ties.

The Kansas Supreme Court, in In re Adoption of Baby Boy L.,[95] was the first court to uphold the EIF exception.[96] The ICWA was interpreted as applying only to Indian children that grow up in an Indian environment that practices tribal culture.[97] Here, a child was born to an unwed non-Indian mother and Indian father, who was incarcerated and had never cared for the child.[98] The non-Indian mother relinquished rights to the child the day the child was born.[99]Although the child was enrolled as a member of the Kiowa Tribe of Oklahoma, the child was raised by non-Indian parents that did not participate in tribal culture.[100] The ICWA was therefore inapplicable as there was no Indian family or home to preserve.[101]

The court reviewed 25 U.S.C. § 1902, which emphasizes Congress's intent to adopt minimum federal standards "for the removal of Indian children from their families."[102] In focusing on this section, the court replaced "their families" with "Indian families."[103] Thus, the court concluded that Congress enacted the ICWA to prevent the breakup of Indian families.[104] "It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultur[e] . . . ."[105]

Although the reasons for overturning In re Adoption of Baby Boy L. is set forth in greater detail below, other state courts have utilized the EIF exception based on a similar analysis. For example, in Kentucky, when a child resides in a non-Indian home that did not adopt tribal culture and customs as a day-to-day way of life, after the mother voluntarily gave the child up after eight months and where paternity was never established, the ICWA does not apply.[106] Thus, even when a child has an Indian parent, is a member of a recognized tribe, resided on the reservation for eight months, and speaks words and phrases in the Indian language, a child is not part of an existing Indian family.[107] In short, being Indian by birth does not equate to being part of an Indian family.[108]

State courts establish no specific time frame as to how long an Indian child must reside with Indian parents or in an Indian home to have sufficient cultural, social, or religious ties to Indian heritage. In Indiana, an Indian child who is given up for adoption at the earliest practical moment after childbirth does not qualify as having been a part of an existing Indian family.[109] "[E]xcept for the first five days after [the Indian child's] birth, her entire life of seven years to date [of lawsuit] has been spent with her non-Indian adoptive parents in a non-Indian culture." [110] Therefore, the ICWA was inapplicable as the child had never been part of an existing Indian family and did not participate in Indian culture.[111]

In interpreting Congress's intent as requiring an existing Indian family under 25 U.S.C. § 1912(d),[112] courts have not only looked to the child's cultural, social, religious, and political connection to the tribe, but also to the parents' connections.[113] Pursuant to In re Adoption of Crews,[114] an Indian parent that has shown no interest in their Indian heritage, and who indicates that will not change,[115] cannot be said to have sufficient connections to an Indian family.[116] As recent as 2005, Missouri held that Indian parents who do not reside on the reservation and who do not have substantive ties to a specific tribe are not afforded the protections in the ICWA because there is no existing Indian family.[117] Other courts that have considered whether a child's parents are Indian enough for the ICWA to apply weighed the following factors: (1) whether the parents privately identified themselves as Indians; (2) whether the parents observe tribal customs; (3) whether the parents voted in tribal elections or participated in tribal politics; (4) whether the parents contributed to Indian charities; (5) whether the parents subscribed to Indian newsletters or periodicals; (6) whether the parents participate in Indian religious or cultural events; and (7) whether the parents maintained social contacts with other tribal members.[118] The result of cases in this category is an ambiguous set of factors used to determine whether Indian children and parents are "Indian enough" before determining whether the ICWA applies. The determination of whether an Indian child or parent is sufficiently Indian is not only ambiguous; it lacks foundation in the ICWA and is instead a judicial creation.

In determining whether there is an existing Indian family, courts have also looked to whether the Indian parent has, or has attempted to have, custody of the Indian child. This category of cases mostly concerns whether Indian fathers have retained enough custody for the ICWA to apply in parental termination cases. However, questions surrounding whether Indian mothers have adequate custody have also arisen. The ICWA does not set forth whether legal[119] or physical custody[120] is necessary in order for the ICWA to apply.[121] In fact, the ICWA uses the term custody broadly and in various contexts.[122] In effect, this ambiguity created a loophole to the ICWA and gave rise to this category of EIF exception cases. The loophole, however, neither aligns with the spirit nor the intent of the ICWA and is instead another power grab by states who want to avoid the ICWA.

Generally speaking, most courts fail to make a distinction between legal and physical custody. Thus, some courts have required physical custody while others only require legal custody for the Indian parent to be able to utilize the protections set forth in the ICWA. In a particularly troubling case out of Kansas that has since been overturned, it was determined that a father who never had physical custody of his child due to his incarceration could not utilize the ICWA because the child was not part of an existing Indian family.[123] The child was born in January, and on the same date of the child's birth, the non-Indian mother executed a consent for adoption.[124] The court granted the adoptive parents temporary care and custody of the child.[125] Because the father never had physical custody of the child, there could not be an existing Indian family to prevent the breakup of.[126] In Indiana, parents that retain physical custody for a period of time, however, are not automatically awarded the ICWA's protections.[127] Indian mothers who retain legal and physical custody of their children for a few days after birth do not retain physical or legal custody long enough to establish an existing Indian family.[128]
B. Different Opinions Surrounding the Existing Indian Family Exception
In addition to the length of custody, the ICWA was inapplicable where the Indian parent failed to have physical custody and financially support the Indian child.[129] Full physical custody of D.M.J, an Indian child, was awarded to D.M.J.'s non-Indian mother during the 1976 divorce of the parents.[130] Seven years later, the non-Indian mother consented to the adoption of D.M.J. by a non-Indian couple, and a petition for adoption was filed.[131] The natural, Indian father attempted to use the ICWA to stop the adoption.[132] Because the Indian father failed to have physical custody of the child for nearly a decade and willfully failed to make child support payments, the ICWA did not apply because the child was not part of an existing Indian family.[133] Similarly, an Indian father cannot use the ICWA to prevent the adoption of his child when he never attempted to exercise any parental responsibilities.[134]

In Alabama, fathers who refuse to acknowledge paternity on the child's birth certificate and who minimally support the child financially cannot use the ICWA to void termination of his parental rights.[135]

The child may be an Indian child, as defined in the act, by virtue of her biological father. However, since birth, she has either resided with her non-Indian mother or her non-Indian great-aunt and great-uncle-except for a period of four weeks when she lived with her father and paternal grandmother. The mother and father were never married and never lived together. The father never supported the mother or the child financially. The child has had minimal contact with the father. She has had no involvement in tribal activities or any participation in Indian culture. The evidence reflects that the father has had only minimal contact with the reservation. The father never exercised his parental responsibilities and never attempted to become a part of the child's life.[136]

Where there is no acknowledgment of paternity or parental responsibilities, there is no existing Indian family to salvage or prevent the breakup of.[137] Parental responsibilities include financial support, and interestingly enough, the court acknowledges earlier in the opinion that the father made small financial contributions to the child over three years.[138]Yet, the court later states the father never supported the mother or child.[139] The court failed to address, however, what kind of contributions are adequate to establish enough financial support to meet the "parental responsibilities" standard. By looking at a parent's length of custody and financial support, courts have read into the ICWA arbitrary criteria to determine whether Indian parents have sufficient custody for the ICWA to apply.

Although most courts under this category have looked to the arbitrary criteria discussed above to avoid the ICWA, the New Jersey Supreme Court took a slightly different approach in carving out its EIF exception-standing.[140] Indian fathers who lack legal custody of children do not have standing under the ICWA.[141] 25 U.S.C. § 1914 provides that "any parent or Indian custodian from whose custody such child was removed" may petition the court to invalidate the action.[142] In this case, the Indian father's attitude surrounding the child was in dispute.[143] The biological mother claimed the father offered her $300 for an abortion, whereas the father claims he verbally acknowledged paternity to the mother and his desire to keep the child.[144] The father left to visit relatives upon the mother going into labor and did not return until one month after the mother had placed the child with the adoptive parents.[145] The father was not listed on the birth certificate and never petitioned to be.[146] Neither the Indian father nor his extended family saw the child before the child's fourth birthday.[147]Therefore, the father lacked standing because he failed to acknowledge his paternity in a way that creates parental rights.[148]

Where the separation of an Indian family has since long occurred due to an Indian father abandoning his child before its birth and neither obtaining legal nor physical custody, the ICWA does not apply.[149] Relying upon 25 U.S.C. § 1912(d),[150] the Court in Adoptive Couple v. Baby Girl[151] held that remedial services "are intended 'to alleviate the need to remove the Indian child from his or her parents or Indian custodians,' not to facilitate a transfer of the child to an Indian parent."[152] Read in relation to 25 U.S.C. § 1912(e)[153]-(f),[154] remedial measures are only available to Indian parents to continue custody and not to Indian parents who have never established custody.[155] "In other words, the provision of 'remedial services and rehabilitative programs' under § 1912(d) supports the 'continued custody' that is protected by § 1912(e) and § 1912(f)."[156]

The Indian father in Adoptive Couple neither supported the mother and child during pregnancy nor after the child's birth.[157] Prior to unknowingly relinquishing custody of his child, the baby went to the non-Indian adoptive home where she resided for 27 months.[158] The Court does not mention, however, the suspicious actions surrounding the parental termination. The non-Indian mother asked the father to sign termination papers six days before his deployment to Iraq.[159] The father agreed to terminate his custody because he was scared of dying during deployment and believed he was giving full custody to the mother.[160] After signing the papers, the father learned the mother had placed the child in an adoptive home.[161] It was then that he sought application of the ICWA.[162] The trial court and state Supreme Court found the ICWA applicable because it was a child custody proceeding involving an Indian child.[163] In addition, the lower courts found that the father was a "parent" pursuant to the ICWA.[164] The adoptive couple appealed, and the Supreme Court reversed.[165] When discussing why they overturned the decision, the Supreme Court elaborated that while this father was never given the opportunity to participate in remedial services, such services are not necessary when there is no Indian family unit to prevent the breakup of.

Although the Court in Adoptive Couple did not explicitly adopt the EIF exception like the state court in Baby Boy L., the two cases are nearly identical.[166] Both cases involved un-wed, Indian fathers who never had physical custody of their children.[167] The Indian father in Adoptive Couple had abandoned the child pursuant to state law, and the Indian father in Baby Boy L. lacked physical custody due to incarceration.[168] Both cases involved un-wed, non-Indian mothers who consented to adoption.[169] Both courts determined that Indian fathers could not use the ICWA to prevent the involuntary adoptions of their Indian children.[170] Therefore, the Court in Adoptive Couple reinstated the EIF exception used in Baby Boy L. to override the ICWA.

In sum, this category relies upon the parental relationship with the Indian child. Indian parents who never had legal or physical custody of their child are not afforded the ICWA protections because the child and parent cannot be said to be part of an existing Indian family. Courts have upheld the validity of the exception through this category in various ways. However, the effects are the same-the ICWA does not apply unless a court's judicial, arbitrary standard is met.
IV. Potential Solutions
The EIF exception has two main criticisms. First, it is in direct conflict with the spirit of the ICWA and is not found in any of the statute's text.[176] Second, the EIF exception is based on Anglo-American views of tribes.[177] The ICWA was enacted with the purpose of keeping Indian children with their tribes and families to promote the stability of tribes.[178] The ICWA acknowledges tribes' authority to govern their own people and to prevent states from overriding such authority. State courts, however, have attempted to supersede such authority by ignoring the ICWA's plain language. State courts have ignored the definition of "Indian child" set forth in the ICWA and have instead read ambiguous factors into the definition.[179] In practice, this means non‑Indians are determining whether Indian children and parents are "Indian enough" before applying the ICWA. The various factors courts have read into the ICWA do not align with the intent of the statute, which is evident in the statute's definition of "Indian child."

As discussed in section II.C, the definition for "Indian child" provides a simple either/or test that emphasizes the only relationship requirement in the ICWA is membership.[180] This definition neither leaves room for factors such as the child's cultural, social or political ties to the tribe nor inquiry into the parent's relationship with the child. "No additional requirements can be grafted on to the definition of 'Indian child,' because '[n]o amount of probing into what Congress "intended" can alter what Congress said, in plain English.'"[181]

The reliance upon whether a child or parent has sufficient Indian culture for the ICWA to apply is furthermore misguided in that there is not one "Indian culture."[182] "[I]n ascertaining whether a family is sufficiently 'Indian,' courts have required that the parent or child participate in a laundry list of tribal activities."[183] There are 574 federally recognized tribes in the United States, all of which are ethnically, culturally, and linguistically diverse.[184] Therefore, tribes themselves are the best situated to determine where a child or parent is "Indian"-not state courts.[185]

Further, state courts should not be in the business of crafting lists of indicia of tribal affiliation that are devoid of any tribal input. In so doing, these states are substituting their judgment for that of the tribe and imposing an outsider view of Indian culture that may have little relevance to the tribe itself. Indeed, there is no suggestion by the court that [factors] listed are significant to the tribe's culture or to its determinations of tribal membership.[186]

State courts that utilize the EIF exception therefore interfere with tribes' rights to define membership[187] and read ambiguous factors into an unambiguous definition.[188]

The tribe in Mississippi Band of Choctaw Indians v. Holyfield used the ICWA to intervene in a state child custody proceeding involving a set of Indian twins who were domiciled on the reservation and voluntarily given up for adoption.[194] The tribe was granted exclusive jurisdiction pursuant to the ICWA and determined that the Indian children should remain with the non-Indian family.[195] The holding in Holyfield, although not directly dealing with the EIF exception, has been used to support and criticize the EIF exception. Those that criticize the EIF exception claim Holyfield confirmed states cannot create their own definitions under the ICWA.[196] The Court rejected the state's argument that state law should determine the twins' domicile and noted that it was "highly improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provisions to definition by state courts."[197] Although the particular statement was in regard to the definition of "domicile," critics of the EIF exception argue the statement applies to all definitions in the ICWA and "should dissuade state courts from reinterpreting [the] ICWA in a manner that minimizes its employment."[198] In this context, it follows that state courts should not be able to reinterpret Indian child, parent, or custody.
V. CONCLUSION The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor, at the contact information in our "About the Bulletin" page.
Proponents for the EIF exception argue Holyfield should either be construed narrowly or that it reinforces the EIF exception all together.[199] Alabama bypassed the holding in Holyfield by finding it only applied in voluntary termination proceedings, not in scenarios where Indian children never resided in "Indian" families.[200] Similarly, Louisiana applied Holyfield narrowly and found that it only dealt with jurisdictional issues, not the definition of Indian child.[201]Washington used the following quote from Holyfield to support its EIF exception: "[T]he '[r]emoval of Indian children from their cultural setting . . . seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children."[202] The court stated that it "supports our conviction that [the] ICWA is not applicable when an Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation."[203]

Proponents of the EIF exception have relied on arguments beyond Holyfield to justify their holdings. Oklahoma held that the EIF exception based on lack of custody was not a judicial exception but rather something the ICWA contemplated.[204] The court reviewed the proposed 1987 amendments presented by the BIA to Congress.[205] Had the amendments passed, the ICWA would have applied to Indian children and Indian parents regardless of whether the parent ever had custody of the child.[206] Although the amendments failed in Senate committee, the court noted that "Congress, being aware of this Court's decision in In re D.M.J.,[207]as well as decisions from other states using similar reasoning, has refused to change the statutory language to do away with this interpretation."[208] Thus, Oklahoma argued the EIF exception was substantiated. Proponents of the EIF exception further argue that the ICWA acknowledges the importance of tribal culture and heritage, but that those goals do not always align with the child's best interests[209]-especially when a child may be removed from a stable, non-Indian home. "[I]n practice, ICWA often harms children, by delaying or denying them placement in stable and loving homes, compelling their reunification with abusive birth parents, and mandating procedures that deprive them of the legal protections they need."[210]

Many state courts have rejected the EIF exception. Idaho, when determining a jurisdictional question pertaining to Indian children, held that the ICWA applies regardless of whether the Indian child "had never been on the reservation, with their Indian parents, or within the Indian culture."[211] Similarly, Michigan determined the EIF exception undercut the purpose of the ICWA and that it fails to consider the interests of the Indian tribes themselves.[212] Alaska determined the only exceptions to the ICWA are those set forth in statute-certain juvenile offenses and divorce cases where custody is at issue.[213] New York noted that "[b]ecause Congress has clearly delineated the nature of the relationship between an Indian child and tribe necessary to trigger application of the Act, judicial insertion of an additional criteria for applicability is plainly beyond the intent of Congress and must be rejected . . . ."[214] The court further emphasized how the additional criterion for applicability, which is based on subjective factual determinations, required states courts to test the "Indian-ness" of Indian children and parents-"a determination that state courts are 'ill-equipped to make.'"[215]

Even courts that previously utilized the EIF exception to override the ICWA have overturned their cases. Notably, Kansas overruled In re Adoption of Baby Boy L.[216] and found the ICWA does not require Indian children or parents to have sufficient social, cultural, or political connections to their tribe.[217] South Dakota followed Kansas's lead and relied upon the reasoning set forth in In re Adoption of Baby Boy L. to overturn its previous use of the EIF exception, noting the ICWA protects Indian children and families as well as tribes.[218] Similarly, Oklahoma overturned its use of the EIF exception, which prevented Indian parents from utilizing the ICWA when they did not have physical or legal custody of the child and held that the ICWA applies to Indian children and parents regardless of custody.[219] The charge to overturn cases that previously relied upon the EIF exception in some fashion turn upon the fact that state court judges, who lack an understanding and knowledge of Indian culture, should not determine what it means to be Indian. Outsiders determining what happens to Indian children, coupled with the spirit of the ICWA and its plain language, have led some courts to conclude the EIF exception is inexcusable.

Non-Indian individuals have been given the reins to Indian affairs for centuries. Whether that be unequal treaties that favored non-Indians, the removal era, the boarding school era, assimilation, the Indian Adoption Project, or even the ICWA, it is critical to note the proposed solutions that follow are simply that-proposals. The solutions are merely suggestions and are built upon the notion that non-Indians should act as allies, rather than oppressors, to Indian people and tribes. Indian tribes, as sovereign nations, are equipped to handle the ICWA and all that flows from it. That said, there are three potential solutions tribes may consider with regard to the EIF exception: (1) Congress amends the ICWA to ban the EIF exception; (2) states adopt their own ICWA with protections against the EIF exception; and (3) society changes the narrative surrounding the ICWA. These potential solutions are not independent of one another and can be initiated together.

In the absence of an amendment to the ICWA, children will continue to be removed from their tribes and families under the EIF exception. Thus, Congress can amend the ICWA to ban the EIF exception. This solution would provide the most protection to tribes as the EIF exception ban would be applied uniformly across the entire United States and would prevent state courts from utilizing the EIF exception altogether.[220] Specifically, the amendment would insert new text into the ICWA to ban the EIF exception. The language of the amendment could closely follow the 2016 BIA regulation and would fit into the text of the ICWA under 25 U.S.C. § 1903(4), the definition of Indian child. As discussed in Part III, the BIA attempted to ban use of the EIF exception by providing various factors courts cannot rely on in determining whether an Indian child meets the appropriate definition.[221] The amendment would also need to include new text under 25 U.S.C.§ 1912(d), which discusses the remedial and rehabilitative programs designed to prevent the breakup of the Indian family. The new language must contain something to the effect of "an Indian child meets the definition of 'Indian family' if the child is an 'Indian child' pursuant to 25 U.S.C. § 1903(4)." Amended text in these two locations would ban the EIF exception.

The difficulty with an amendment is the ICWA is a hot political issue-especially in the Spring 2021. As mentioned earlier, the Fifth Circuit decided an important ICWA case, and the likelihood of appeal makes future of the ICWA as a whole is uncertain. Thus, garnering congressional support to amend the ICWA will be difficult at best-especially when there are powerful lobbyists pushing for its demise.[222]

The second proposed solution, states enacting their own ICWA with a provision banning the EIF exception, would protect tribes regardless of whether the ICWA is upheld at the federal level. Various states have enacted their own ICWA,[223] most of which include additional protections beyond the federal ICWA. Iowa's ICWA provides that "[a] state court does not have discretion to determine the applicability of the federal Indian Child Welfare Act or this chapter to a child custody proceeding based upon whether an Indian child is part of an existing Indian family."[224] Minnesota's ICWA, which is called the Minnesota Indian Family Preservation Act, reads similarly to Iowa's ICWA. In Minnesota, a court cannot determine whether the ICWA is applicable to an Indian child based upon whether the child is part of an existing Indian family or "based upon the level of contact a child has with the child's Indian tribe, reservation, society, or off-reservation community."[225]

Unlike Iowa or Minnesota, Nebraska's ICWA does not explicitly bar the EIF exception.

Finally, changing the narrative surrounding the ICWA will foster better state and tribal relations. Such relations will make the EIF exception moot. As noted above, there is an assumption tribes and tribal governments lack the same level of legitimacy as state courts. This is due to cultural misconceptions and biases. In addition, this viewpoint fails to take into account that the widespread poverty and dependence found on many reservations stemmed directly from federal and state policies such as the EIF exception. Better communication amongst parties and education surrounding tribal culture could bolster the relationship between states and tribes. In addition, an accurate narrative of what the ICWA does is essential.

The narrative surrounding the ICWA needs to reflect what is actually occurring. Tough cases[231] dominate the headlines; however, the reality is that more good than bad comes from the ICWA. Further, tribes and states have a common interest-determining what is best for the child. The narrative that irreconcilable differences exist is far from the truth and leads to harmful practices such as the EIF exception. As seen in Holyfield, just because a tribe retains jurisdiction over Indian children does not mean children will be kept in abusive, Indian homes.[232] It only means that tribes have the capacity and unquestioned right to choose what happens to their children. Regardless of whether Congress amendments the ICWA to ban the EIF exception or states enact their own ICWA protections, improved state and tribal relations will help all of the parties involved.
Category:
The ICWA was enacted to curtail the removal of Indian children from their tribes and families by allowing tribes to have jurisdiction over custody proceedings involving Indian children; it ensured the security of tribes by allowing them to pass Indian culture down from one generation to the next. The chances of Indian survival, as noted by Calvin Isaac, are significantly reduced when Indian children are raised in non-Indian homes or denied exposure to their heritage.[233] Although some states have complied with the spirit of the ICWA, other states have created the EIF exception to avoid it altogether. The EIF exception runs afoul to the ICWA and risks a return to the pre-ICWA era, where Indian children were intentionally taken from their homes to dimmish tribal nations. To ensure the survival of Indian tribes and compliance with the ICWA, federal and state legislation should be passed to protect Indian children, their families, and tribes. The EIF exception is in direct conflict with the ICWA and threatens the future of Indian tribes everywhere.

[3] 25 U.S.C. § 1901(3) (2010).

[8] H.R. Rep. 95-1386, at 9.

[62] 25 U.S.C. § 1903(1) (2010).

[64] 25 U.S.C § 1911(a) (2010).

[66] 25 U.S.C. § 1911(b).

[71] 25 U.S.C. § 1912(d) (2010).

[73] 25 U.S.C. § 1903(9).

[78] 25 C.F.R. § 23.103 (2016).

[178] 25 U.S.C. § 1902.

[188] 25 U.S.C. § 1903(4).

[225] Minn. Stat. § 260.771(2) (1985).

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A Nation and Culture's Fight for Survival: How the Existing Indian Family Exception Renders ICWA Inapplicable

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Keely Kleven* I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family . . .

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A useful tool of reference when analyzing the varying angles multiple parties have taken to legally challenger and/or circumvent through a loophole through these rules.

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This paper, I believe, provides a well explored analysis of Haaland v. Brackeen, ICWA, and all that is significant surrounding it. However,, it is admittedly, not the full picture, as I believe everything necessery to dicusses with this topic could fill an entire book. However, I have linked it as a supplementary resource regardless.

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A Court sketch of Chad and Jennifer Brackeen, as they listen to the oral argument of Haaland v. Brackeen.

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After having read the primary sources, and considered the supplementary sources, how do you view the Brackeens? Consider adressing one or more of the following questions:

1. How large of a role do you think they had in this case reaching the supreme court?

2. What do you believe their ultimate motivations were in pursuing the end of ICWA considering they already had successfully adopted the native child they targeted?

3. If you had the chance to ask Jennifer and Chad a question about this case, what would it be?

4. Why do think they have avoided public scrutiny in the time since they filed this case? (Avoiding interviews, deleting once-public blogs, etc)

Discuss Below

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Elder and young girl stand on porch, c 1940, courtesy of Nebraska StateHistorical Society. Statistical overlay from Congressional Indian ChildWelfare Hearings. 

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In 1978, at the time of the passing of ICWA, Congress found “between 25 to 35 percent of all Indian children nationwide were removed from their homes and 90 percent of those children were placed into non-Indian homes.” (Article)

Despite Haaland v. Brackeen eventually ruling in favor of ICWA, there still remains uncertainty and fear that its possible future destruction is still a possibility. What would the end of ICWA affect the mean for Tribes and the US. Consider following what consequences could emerge for the following:

1. Tribal Soverignty

2. Native Families & Children

3. Oil & Land rights

4. Conservative Power

5. State & Federal Jurisdiction

6. Tribal Casinos

Discuss Below

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Here is the full ICWA statute (US Code Title 25).

It was enacted on November 8, 1978. The Statute was created to prevent the removal of American Indian children from their families in custody, foster care and adoption cases. It gives Tribal courts full jurisdiction over Welfare Cases concerning children of tribal over native children domiciled on a reservation and judicial preference over those who are not.

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The Full Case Document including the Syllabus, the Opinion of the court delivered by Justice Barrett, the concurring opinions of Gorsuch and Kavannaugh, and the Dissenting opinions of Thomas and Alito.

Argued November 9, 2022—Decided June 15, 2023

"Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issues are complicated — so for the details, read on. But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing" -Justice Barrett

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Oral Argument of Haaland v. Brackeen. Reportedly, the Oral argument was intended to only last one hour, yet extended into three. While not entirely necessary to listen to with the existence of the full court document, I believe that actually listening to the petitioners argue their case against ICWA can aid one in understanding how little their arguments actually hinge on 'wanting whats best for children'. After listening to three strait hours of back and forth debate about the extent of plenary power, state jurisdiction over child welfare, the commerce clause, and more technical legal minutiae, this becomes clear. Beyond this, the Oral Argument also illuminates just how amorphous the relationship between the federal government is to tribes; a question that has been raised throughout the quarter. It is because of this clear inability to outline the exact extent to federal power to regulate tribes that makes it such a target by the petitioners to target for weaknesses. Overall, the oral argument goes beyond the written account by the court by offering the ability to hear first hand how and in what way the Brackeens' representatives argued their case.

Here are some interesting snippets from the Oral Argument:

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A case in which the Court upheld the constitutionality of the Indian Child Welfare Act.

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This case emerged following a custody dispute between the Capobiancos, a South Carolinian couple, and a Father enrolled in the Cherokee Nation over the adoption of his child. The dispute reached the Supreme Court after Brown was given custody back after claiming that according to ICWA, he was not properly informed, and in response, the Capobiancos filed a petition. The Court eventually ruled that

in this case, ICWA does not apply to Brown because he never had custody of the child. The statute, they interpreted, applies only when there is already a parent-child relationship and alternative parties are wanting to adopt.

This was by no means a unanimous decision by the court, as they were split 5-4. (Concurrence: Alito, Roberts, Kennedy, Thomas, and Breyer; Dissent: Sotomayor, Ginsburg, Kagan & Scalia). It is within Sotomayors Dissent in particular where the significance of this case in the larger scheme of ICWA and the very foundations any and all efforts to adress racial inequality.

"...Our precedents...squarely hold that classifications based on Indian tribal membership are not impermissible racial classifications. The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal Protection Clause as applied here...I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities...I am particularly averse to doing so when the Federal Government requires Indian tribes, as a prerequisite for official recognition, to make “descen[t] from a historical Indian tribe” a condition of membership.

The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer." (Sotomayor Dissent)

Essentially, this case along with the other challenges to ICWA like Haaland v. Brackeen that rely on using a radicalization of native children to further an argument based on the Equal Protection clause of the 14th amendment. The slippery slope of acknowledging and creating precedent based on these "upside down" interpretations pose a dark future for laws that address structural racism and inequality as well as Tribal Soverignty.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12-399

_________________

ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,a minor child under the age offourteen years, et al.

on writ of certiorari to the supreme court of south carolina

Justice Alito delivered the opinion of the Court.

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

Contrary to the State Supreme Court's ruling, we hold that 25 U. S. C. §1912(f) -which bars involuntary termination of a parent's rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent's "continued custody" of the child-does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)-which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the "breakup of the Indian family"-is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court's judgment and remand for further proceedings.

I

"The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U. S. C. §§ 1901- 1963, was the product of rising concern in the mid-1970's over the consequences to In- dian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Congress found that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." §1901(4). This "wholesale removal of Indian children from their homes" prompted Congress to enact the ICWA, which establishes federal standards that govern state-court child custody proceedings involving Indian children. Id., at 32, 36 (internal quotation marks omitted); see also §1902 (declaring that the ICWA es- tablishes "minimum Federal standards for the removalof Indian children from their families").

Three provisions of the ICWA are especially relevant to this case. First, "[a]ny party seeking" an involuntary termination of parental rights to an Indian child under state law must demonstrate 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." §1912(d). Second, a state court may not involuntarily terminate parental rights to an Indian child "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." §1912(f). Third, with respect to adoptive placements for an Indian child under state law, "a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." §1915(a).

II

In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the Cherokee Nation) became engaged in December 2008. One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father asked Birth Mother to move up the date of the wedding. He also refused to provide any financial support until after the two had married. The couple's relationship deteriorated, and Birth Mother broke off the engagement in May 2009. In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or re- linquish his parental rights. Biological Father responded via text message that he relinquished his rights.

Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter misspelled Biological Father's first name and incorrectly stated his birthday, and the Cherokee Nation responded that, based on the information provided, it could not verify Biological Father's membership in the tribal records.

Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl's birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby Girl.

It is undisputed that, for the duration of the pregnancy and the first four months after Baby Girl's birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl, even though he had the ability to do so. In- deed, Biological Father "made no meaningful attempts to assume his responsibility of parenthood" during this period. App. to Pet. for Cert. 122a (Sealed; internal quotation marks omitted).

Approximately four months after Baby Girl's birth, Adoptive Couple served Biological Father with notice of the pending adoption. (This was the first notification that they had provided to Biological Father regarding the adoption proceeding.) Biological Father signed papers stating that he accepted service and that he was "not contesting the adoption." App. 37. But Biological Father later testified that, at the time he signed the papers, he thought that he was relinquishing his rights to Birth Mother, not to Adoptive Couple.

A trial took place in the South Carolina Family Court in September 2011, by which time Baby Girl was two years old. 398 S. C. 625, 634-635, 731 S. E. 2d 550, 555-556 (2012). The Family Court concluded that Adoptive Couple had not carried the heightened burden under §1912(f) of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody. See id., at 648-651, 731 S. E. 2d, at 562-564. The Family Court therefore denied Adoptive Couple's petition for adoption and awarded custody to Biological Father. Id., at 629, 636, 731 S. E. 2d, at 552, 556. On December 31, 2011, at the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met.

The South Carolina Supreme Court affirmed the Family Court's denial of the adoption and the award of custody to Biological Father. Id., at 629, 731 S. E. 2d, at 552. The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731 S. E. 2d, at 556, 560, n. 18. It also concluded that Biological Father fell within the ICWA's definition of a " 'parent.' " Id., at 644, 731 S. E. 2d, at 560. The court then held that two separate provisions of the ICWA barred the termination of Biological Father's parental rights. First, the court held that Adoptive Couple had not shown that "active efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." §1912(d); see also id., at 647-648, 731 S. E. 2d, at 562. Second, the court concluded that Adoptive Couple had not shown that Biological Father's "custody of Baby Girl would result in serious emotional or physical harm to her beyond a reasonable doubt." Id., at 648-649, 731 S. E. 2d, at 562-563 (citing §1912(f)). Finally, the court stated that, even if it had decided to terminate Biological Father's parental rights, §1915(a)'s adoption- placement preferences would have applied. Id., at 655-657, 731 S. E. 2d, at 566-567. We granted certiorari. 568 U. S. ___ (2013).

III

A

Section 1912(f) addresses the involuntary termination of parental rights with respect to an Indian child. Specifically, §1912(f) provides that "[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . 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." (Emphasis added.) The South Carolina Supreme Court held that Adoptive Couple failed to satisfy §1912(f) because they did not make a heightened showing that Biological Father's " prospective legal and physical custody" would likely result in serious damage to the child. 398 S. C., at 651, 731 S. E. 2d, at 564 (emphasis added). That holding was error.

Section 1912(f) conditions the involuntary termination of parental rights on a showing regarding the merits of " continued custody of the child by the parent." (Emphasis added.) The adjective "continued" plainly refers to a pre-existing state. As Justice Sotomayor concedes, post, at 11 (dissenting opinion) (hereinafter the dissent), "continued" means "[c]arried on or kept up without cessation" or "[e]xtended in space without interruption or breach of conne[ct]ion." Compact Edition of the Oxford English Dictionary 909 (1981 reprint of 1971 ed.) (Compact OED); see also American Heritage Dictionary 288 (1981) (defining "continue" in the following manner: "1. To go on with a particular action or in a particular condition; persist. . . . 3. To remain in the same state, capacity, or place"); Webster's Third New International Dictionary 493 (1961) (Webster's) (defining "continued" as "stretching out in time or space esp. without interruption"); Aguilar v. FDIC, 63 F. 3d 1059, 1062 (CA11 1995) ( per curiam) (suggesting that the phrase "continue an action" means "go on with . . . an action" that is "preexisting"). The term "continued" also can mean "resumed after interruption." Webster's 493; see American Heritage Dictionary 288. The phrase "continued custody" therefore refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.

Biological Father's contrary reading of §1912(f) is nonsensical. Pointing to the provision's requirement that "[n]o termination of parental rights may be ordered . . . in the absence of a determination" relating to "the continued custody of the child by the parent," Biological Father contends that if a determination relating to "continued custody" is inapposite in cases where there is no "custody," the statutory text prohibits termination. SeeBrief for Respondent Birth Father 39. But it would be absurd to think that Congress enacted a provision that permits termination of a custodial parent's rights, while simultaneously prohibiting termination of a noncustodial parent's rights. If the statute draws any distinction between custodial and noncustodial parents, that distinction surely does not provide greater protection for noncustodial parents.

Our reading of §1912(f) comports with the statutory text demonstrating that the primary mischief the ICWA was designed to counteract was the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts. The statutory text expressly highlights the primary problem that the statute was intended to solve: "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." §1901(4) (emphasis added); see also §1902 (explaining that the ICWA establishes "minimum Federal standards for the removal of Indian children from their families" (emphasis added)); Holyfield, 490 U. S., at 32-34. And if the legislative history of the ICWA is thought to be relevant, it fur ther underscores that the Act was primarily intended to stem the unwarranted removal of Indian children from intact Indian families. See, e.g., H. R. Rep. No. 95-1386, p. 8 (1978) (explaining that, as relevant here, "[t]he purpose of [the ICWA] is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes" (emphasis added)); id., at 9 (decrying the "wholesale separation of Indian children" from their Indian families); id., at 22 (discussing "the removal" of Indian children from their parents pursuant to §§1912(e) and (f)). In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA's primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.

The dissent fails to dispute that nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) shortly after the ICWA's enactment demonstrate that the BIA envisioned that §1912(f)'s standard would apply only to termination of a custodial parent's rights. Specifically, the BIA stated that, under §1912(f), "[a] child may not be removed simply because there is someone else willing to raise the child who is likely to do a better job"; instead, "[i]t must be shown that . . . it is dangerous for the child to remain with his or her present custodians." Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67593 (1979) (emphasis added) (hereinafter Guidelines). Indeed, the Guidelines recognized that §1912(f) applies only when there is pre-existing custody to evaluate. See ibid. ("[T]he issue on which qualified expert testimony is required is the question of whether or not serious damage to the child is likely to occur if the child is not removed").

Under our reading of §1912(f), Biological Father should not have been able to invoke §1912(f) in this case, because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. As an initial matter, it is undisputed that Biological Father never had physical custody of Baby Girl. And as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either. SeeS. C. Code Ann. §63-17-20(B) (2010) ("Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child"); Okla. Stat., Tit. 10, §7800 (West Cum. Supp. 2013) ("Except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction").

In sum, the South Carolina Supreme Court erred in finding that §1912(f) barred termination of Biological Father's parental rights.

B

Section 1912(d) provides that "[a]ny party" seeking to terminate 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." (Emphasis added.) The South Carolina Supreme Court found that Biological Father's parental rights could not be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial services in accordance with §1912(d). 398 S. C., at 647-648, 731 S. E. 2d, at 562. We disagree.

Consistent with the statutory text, we hold that §1912(d) applies only in cases where an Indian family's "breakup" would be precipitated by the termination of the parent's rights. The term "breakup" refers in this context to "[t]he discontinuance of a relationship," American Heritage Dictionary 235 (3d ed. 1992), or "an ending as an effective entity," Webster's 273 (defining "breakup" as "a disruption or dissolution into component parts: an ending as an effective entity"). See also Compact OED 1076 (defining "break-up" as, inter alia, a "disruption, separation into parts, disintegration"). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent's legal or physical custody, there is no "relationship" that would be "discontinu[ed]"-and no "effective entity" that would be "end[ed]"-by the termination of the Indian par- ent's rights. In such a situation, the "breakup of the Indian family" has long since occurred, and §1912(d) is inapplicable.

Our interpretation of §1912(d) is, like our interpretation of §1912(f), consistent with the explicit congressional purpose of providing certain "standards for the removal of Indian children from their families." §1902 (emphasis added); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32-34. In addition, the BIA's Guidelines confirm that remedial services under §1912(d) are intended "to alleviate the need to remove the Indian child from his or her parents or Indian custodians," not to facilitate a transfer of the child to an Indian parent. See 44 Fed. Reg., at 67592 (emphasis added).

Our interpretation of §1912(d) is also confirmed by the provision's placement next to §1912(e) and §1912(f), both of which condition the outcome of proceedings on the merits of an Indian child's "continued custody" with his parent. That these three provisions appear adjacent to each other strongly suggests that the phrase "breakup of the Indian family" should be read in harmony with the "continued custody" requirement. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (explaining that statutory construction "is a holistic endeavor" and that "[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme"). None of these three provisions creates parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an "Indian family" are provided with access to "remedial services and rehabilitative programs" under §1912(d) so that their "custody" might be "continued" in a way that avoids foster-care placement under §1912(e) or termination of parental rights under §1912(f). In other words, the provision of "remedial services and rehabilitative programs" under §1912(d) supports the "continued custody" that is protected by §1912(e) and §1912(f).

Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply §1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child. The decision below illustrates this point. The South Carolina Supreme Court held that §1912(d) mandated measures such as "attempting to stimulate [Biological] Father's desire to be a parent." 398 S. C., at 647, 731 S. E. 2d, at 562. But if prospective adoptive parents were required to engage in the bizarre undertaking of "stimulat[ing]" a biological father's "desire to be a parent," it would surely dissuade some of them from seeking to adopt Indian children. And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption.

In sum, the South Carolina Supreme Court erred in finding that §1912(d) barred termination of Biological Father's parental rights.

IV

In the decision below, the South Carolina Supreme Court suggested that if it had terminated Biological Father's rights, then §1915(a)'s preferences for the adoptive placement of an Indian child would have been applicable. 398 S. C., at 655-657, 731 S. E. 2d, at 566-567. In so doing, however, the court failed to recognize a critical lim- itation on the scope of §1915(a).

Section 1915(a) provides that "[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." Contrary to the South Carolina Supreme Court's suggestion, §1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no "preference" to apply if no alternative party that is eligible to be preferred under §1915(a) has come forward.

In this case, Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. See Brief for Petitioners 19, 55; Brief for Respondent Birth Father 48; Reply Brief for Petitioners 13. Biological Father is not covered by §1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. Moreover, Baby Girl's paternal grandparents never sought custody of Baby Girl. See Brief for Petitioners 55; Reply Brief for Petitioners 13; 398 S. C., at 699, 731 S. E. 2d, at 590 (Kittredge, J., dissenting) (noting that the "paternal grandparents are not parties to this action"). Nor did other members of the Cherokee Nation or "other Indian families" seek to adopt Baby Girl, even though the Cherokee Nation had notice of-and intervened in-the adoption proceedings. See Brief for Respondent Cherokee Nation 21-22; Reply Brief for Petitioners 13-14.

*  *  *

The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court's reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor-even a remote one-was an Indian. As the State Supreme Court read §§1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother-perhaps contributing to the mother's decision to put the child up for adoption-and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpreta tion would raise equal protection concerns, but the plain text of §§1912(f) and (d) makes clear that neither provision applies in the present context. Nor do §1915(a)'s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child. We therefore reverse the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

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This 1982 Kansas State Supreme Court Case is case that backdrops Holyfield, and is arguably the origin of the Existing Indian Family exception to ICWA. The cases' ruling brought the method of curtailing ICWA through the EIF to the mainstream. The court ruled that ICWA:

"Was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother."

Thus claiming that ICWA does not apply unless the child was part of an "existing Indian family unit". An uncharitable interpretation of the statute considering nothing in the statue explicitly states this. Despite being an ambiguous and controversial decision founded on “cultural misconceptions and outdated notions”, many states still used this “statutory interpretation to read into the ICWA the requirement that an Indian family be present for the ICWA to apply” (Supplemental Source)

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643 P.2d 168
IN THE MATTER OF THE ADOPTION OF BABY BOY L.

No. 53,592
Supreme Court of Kansas.
Opinion filed April 3, 1982.

Pamela S. Fahey, of Native American Law Project, Legal Services of Northeast Kansas, of Horton, and Bertram E. Hirsch, of Floral Park, New York, argued the cause, and Susan Ellis, of Legal Aid Society of Wichita, Inc., of Wichita, and Ross A. Hollander, of Wichita, were with them on the brief for appellants.

Randall H. Elam, of Wichita, argued the cause, and Vincent L. Bogart, of Vincent L. Bogart, Chartered, of Wichita, argued the cause and was on the brief for appellees.

Jan Goslin, of Mayetta, was on the brief in propria persona for the amicus curiae, Four Tribes Children's Program.

The opinion of the court was delivered by

HOLMES, J.:

This is an appeal from sundry trial court rulings and findings and from a decree of adoption entered by the Sedgwick County District Court. Carmon Perciado (Perciado), the putative father of Baby Boy L., an infant born out of wedlock, Quelin and Ernestine Perciado, the baby's paternal grandparents, and the Kiowa Tribe of Oklahoma, are the appellants. The adoptive parents are the appellees. The baby is the illegitimate son of Miss L., a non-Indian and the appellant, Carmon Perciado, a five-eighths by blood relationship Kiowa Indian duly enrolled as a member of the Kiowa Tribe. The appellants contend that the trial court erred in determining that the provisions of the Indian Child Welfare Act of 1978 (ICWA or the Act), 25 U.S.C. § 1901 et seq. (Supp. III 1979), were not applicable to the adoption proceeding and in the alternative assert that if the Act does not apply then the adoption is invalid under state law.

Due to the involved procedural aspects of this case, it is necessary that we set forth the facts in some detail. Baby Boy L. was born at Wichita, January 29, 1981. On the same date his natural mother, an unmarried non-Indian woman, executed a consent to the adoption specifically directed and limited to the adoptive parents named in the consent. The appellees filed their petition for adoption along with the mother's consent the same day and the court entered an order granting them the temporary *202 care and custody of the child. It is not disputed that the appellant Perciado is the father of the child. Notice of the adoption proceedings and time of hearing was personally served on Perciado at the Kansas State Industrial Reformatory where he was incarcerated and upon the State Department of Social and Rehabilitation Services (SRS).

On March 6, 1981, Perciado filed an affidavit of indigency and the court appointed representatives of the Legal Aid Society of Wichita, Inc., to represent him. On March 9, 1981, appellees filed an amendment to their adoption petition alleging Perciado was "an unfit person to have or assume or be given parental responsibilities" and asked that his parental rights be terminated and severed. On March 11, 1981, SRS filed its report recommending the granting of the adoption. On March 25, 1981, Perciado filed an answer to the amended petition asking that the adoption be denied, that he be found a fit and proper person, that his parental rights not be severed and that he be given permanent custody of his son.

On March 30, 1981, the matter was called for trial and the court ruled that it would bifurcate the proceedings and proceed first with the determination of the fitness of the father and whether his parental rights should be severed, and second, with the adoption itself. No objection to this procedure was made by Perciado, who was present in person (having been transported from the Kansas State Industrial Reformatory), or by his counsel, and evidence was introduced on behalf of appellees and by Perciado. Eight witnesses testified on behalf of the appellees and Perciado presented one witness, at which time the trial was recessed until April 1, 1981. On April 1, 1981, it was brought to the court's attention that Perciado was an enrolled member of the Kiowa Tribe and that the federal Indian Child Welfare Act of 1978 might apply, and therefore the case was continued for thirty days to allow proper notice to be given to the Kiowa Tribe. Thereafter, notice was given to the Kiowa Business Committee at Anadarko, Oklahoma. On April 14, 1981, an amended or supplemental consent to the adoption was filed by the baby's mother. This consent was also limited strictly to the named appellees. On May 7, 1981, Perciado, through the Legal Aid Society, filed an amended answer in which he alleged that the ICWA applied to the proceedings and asked, among other things, that the child be *203 placed with a member of its extended family, or other members of the Kiowa Tribe, or with other Indian families as defined by the Act. On May 8, 1981, the Kiowa Tribe filed a petition to intervene in the proceedings and on May 29, 1981, a notice of appearance was filed by Bertram E. Hirsch, an attorney from New York, on behalf of the Kiowa Tribe and the paternal grandparents. Mr. Hirsch associated with local counsel in Wichita as required by our rules. On May 16, 1981, the Business Committee of the Kiowa Indian Tribe, over the objections of the baby's mother, enrolled Baby Boy L. as a member of the Tribe with a Kiowa blood degree of 5/16ths. On June 15, 1981, Perciado and the Kiowa Tribe filed a petition to change temporary custody and a petition to transfer jurisdiction of the case to the Court of Indian Offenses at Anadarko, Oklahoma. Appellees filed answers to the various petitions filed by the appellants and the matter again came before the court on June 24, 1981. The applicability of the Indian Child Welfare Act had been submitted by all parties on briefs filed with the court and the court found that the Act did not apply to the proceedings and therefore denied the petition of the Kiowa Tribe to intervene and then held that the petition for temporary custody and the petition to transfer jurisdiction to the Court of Indian Offenses were moot.

The court then proceeded to hear additional evidence from Perciado on the question of his fitness and whether his consent to the adoption was required. Mr. Hirsch was denied the right to participate in the proceedings on behalf of his clients, as their petition to intervene had been denied, but was allowed to sit with, counsel and advise the attorneys for the father. After the completion of the evidence, the court determined that Perciado was an unfit person to have the care, custody or control of the minor child. Having determined that the father, Perciado, was an unfit person to have the care or custody of Baby Boy L., the court then proceeded to hear evidence on the advisability of the adoption itself, the second portion of the bifurcated proceedings. After hearing this additional evidence, the court found that the appellees were suitable persons to adopt the child, that it was in the best interests of the child to grant the adoption, and the adoption of Baby Boy L. by the appellees was granted.

Appellants have appealed, raising numerous issues. The first three points asserted by the appellants will be considered together *204 as they all involve the applicability of the ICWA. Those points are:

1. The ICWA is applicable to adoption proceedings under state law where the child to be adopted is a member of an Indian tribe and is illegitimate, and the acknowledged putative father is a member of an Indian tribe. 2. The Kiowa Tribe of Oklahoma has a right to intervene in this proceeding. 3. The appellants have a right to petition the trial court to transfer jurisdiction and to change temporary custody in these proceedings.

At the outset, we are faced with the interpretation of complex federal legislation which is not only confusing but, if applied as requested by the appellants, would also be inconsistent, contradictory, and would accomplish no worthwhile or useful purpose. As stated by one author:

"Enacted in 1978, the Indian Child Welfare Act (Act) is the result of an attempt by Congress to promote the stability of Indian families and tribes. Responding to a demonstrated risk of unwarranted removal of Indian children from their homes by state and private child welfare agencies, the Act was intended to impose strict procedural limitations on these agencies, activities. Unfortunately, the Act falls far short of achieving the goals set by Congress. [Emphasis added.]

....

"Although these provisions [of the Act] are well intentioned, their effectiveness is limited by inconsistencies and ambiguities in the drafting of the Act. Consequently, the Act may confuse and even exacerbate the problems which prompted its passage." Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287-88.

In overruling the Kiowa Tribe's motion to intervene on the grounds that the ICWA did not apply to these proceedings, the trial court made, inter alia, the following findings and conclusions:

"3. That the application to intervene was not filed within twenty (20) days as required by the Indian Child Welfare Act, 25 USC 1911, nor was the application verified as required by K.S.A. 59-2202. "4. That the Indian Child Welfare Act of 1978, 25 USC Section 1901, et seq. has no application to the factual situation before the Court in that: (a) The adoption Petition concerns the illegitimate child of a non-Indian mother. (b) The child involved herein was born on January 29, 1981, and on the same day, [Miss L.], the natural mother of said child, voluntarily consented and released said child into the care of the Petitioners, who are non-Indian. *205 (c) That the attorney for the Petitioners herein notified the Kiowa Indian Tribe of Oklahoma of the proceedings herein by notice which was received by the Kiowa Indian Tribe on the 14th day of April, 1981. (d) The child has never been in the care or custody of the putative father who is five-eighths Kiowa Indian. (e) The issue of the preservation of the Indian family is not involved as the child has never been a part of any Indian family relationship. (f) The subject matter of this litigation, Baby Boy L., is not a member of an Indian family. (g) The child appears to have been enrolled as a member of the Kiowa Tribe of Oklahoma subsequent to the initiation of these proceedings and contrary to the expressed wishes of the natural mother, a non-Indian. (h) The controversy does not involve a situation where a State or Federal agency is attempting to unilaterally remove an Indian child from his home and thereby break up an Indian family. (i) Absent the consent of the natural mother to the adoption, it appears that the child would not have been in an Indian home, nor part of an Indian family. "5. The minor child's home has at all times been exclusively with [appellees], non-Indians, and this is the total extent of his family relationship to date. "6. The Act is concerned with establishing proper definitions and safeguards in the situation where Indian children are being removed from their families by reason of child neglect, abuse, or similar grounds. These issues are not present in an adoption proceeding instituted on the voluntary consent of a non-Indian unwed mother of an illegitimate child, where that child's care and custody has, with the natural mother's permission, been with non-Indian proposed adoptive parents since the child's birth."

The Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., was enacted by Congress in 1978, and in § 1902 the policy behind the adoption of the Act was expressed as:

"The Congress hereby declares that it is the policy of this Nation 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, and by providing for assistance to Indian tribes in the operation of child and family service programs." (Emphasis added.)

A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum *206 standards for the removal of Indian children from their existing Indian environment. It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother. Section 1902 of the Act makes it clear that it is the declared policy of Congress that the Act is to adopt minimum federal standards "for the removal of Indian children from their [Indian] families." Numerous provisions of the Act support our conclusion that it was never the intent of Congress that the Act would apply to a factual situation such as is before the court.

Included in the congressional findings to support the Act is § 1901(4) to the effect "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them...." Section 1911(a) provides exclusive jurisdiction in the Indian tribe "over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation...." Section 1912(d) provides that efforts should be made to prevent the breakup of the Indian family while subsections (e) and (f) refer to "the continued custody of the child by the parent or Indian custodian" and the potential for emotional or physical damage to the child. Section 1914 again refers to the removal of the child from the parent or Indian custodian. Sections 1916(b), 1920 and 1922 also reflect the underlying thread that runs throughout the entire Act to the effect that the Act is concerned with the removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family. In this case Baby Boy L. is only 5/16th Kiowa Indian, has never been removed from an Indian family and so long as the mother is alive to object, would probably never become a part of the Perciado or any other Indian family. While it is true that this Act could have been more clearly and precisely drawn, we are of the opinion that to apply the Act to a factual situation such as the one before us would be to violate the policy and intent of Congress rather than uphold them. Professor Barsh states in his article cited earlier:

"Under the Act, a child custody proceeding may be either a foster care placement, a preadoptive placement, an adoption, or a termination of parental rights. In all four categories, the common element is the parents' loss of control over the child. Involuntary investigations and home interventions by social welfare agencies implicitly are excluded. *207 "Expressly excluded from the definition of child custody proceeding are placements based on acts of a child that are essentially criminal in nature, such as the institutionalization of a minor for theft or joyriding. Also expressly excluded are custody awards in divorce proceedings. Thus, the Indian Child Welfare Act does not disturb the power of states to intervene in Indian homes as a preventive measure, to remove or institutionalize Indian children on grounds of juvenile delinquency, or to determine the custody of Indian children when their parents seek a divorce. The Act principally applies to cases where a state court attempts to remove an Indian child from his or her home on grounds of the alleged incompetence or brutality of the parents." p. 1305.

We conclude the trial court was correct in its determination that the ICWA, by its own terms, does not apply to these proceedings and therefore its rulings on the various petitions filed by appellants were correct.

Appellants, of course, along with some legal writers, do not agree with our interpretation of the Act. However, for the sake of argument, if we were to hold that the ICWA applied to these proceedings, then we still fail to see where any reversible error could exist. It has been stated that only two prerequisites exist for the application of the Act: (1) a "child custody proceeding" (2) involving an "Indian child," as those terms are defined in the Act. Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L. Rev. 413, 419-22 (1980).

Section 1903, the definitional section of the Act, provides in part:

"[T]he term (1) `child custody proceeding' shall mean and include

....

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

....

(iv) `adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

....

"(4) `Indian child' means 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."

It is undisputed that Baby Boy L. is the biological child of Perciado, who is 5/8ths Kiowa Indian and a member of the Kiowa Tribe. It is also undisputed that the Kiowa Tribe requires that for a person to be eligible for enrollment in the tribe, such person must be at least one-fourth Kiowa Indian by degree of blood *208 relationship. Baby Boy L. is five-sixteenths Kiowa Indian by degree of blood relationship and therefore meets the tribal requirements. Thus, as defined by the Act, Baby Boy L. must be considered an "Indian child" within the definitions of the Act. Appellees make much of the fact that the child's mother objected to his enrollment in the tribe but we find nothing in the record or in the Act that precludes the enrollment of an otherwise qualified child into an Indian tribe because of the opposition of one of its parents.

Continuing with the assumption that the Act does apply to these proceedings we will briefly address appellants' second and third points. Appellants contend it was error to refuse to allow the Kiowa Tribe to intervene. If the Act were applicable we would agree. Section 1911(c) provides:

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding."

Thus, it is obvious that if the Act were applicable the trial court was in error in refusing to allow intervention by the Kiowa Tribe. However, even if such were the case, the error would have been harmless at best.

The mother of Baby Boy L. gave a consent to the appellees to adopt her child. The consent was limited to the two named appellees and was for their benefit only. She has made it clear that if this adoption was denied for any reason, or if an attempt was made to place the child for adoption under the terms of the Act, she would revoke her consent and again take custody of her child, and never consent to his placement with his father or with the father's extended Indian family, the Kiowa Tribe, the grandparents or anyone else. Section 1913(c) of the Act provides:

"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." (Emphasis added.)

In Treiber v. Stong, 5 Kan. App.2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980), the Court of Appeals held:

"The irrevocability of a consent under K.S.A. 59-2102 applies to disputes between a natural parent or parents and the prospective adoptive parents and the consent, when withdrawn, is not binding on the consenting parent in a custody dispute between the natural parents." Syl. ¶ 3.

*209 Under either the Act or Kansas law, any proceedings which the Kiowa Tribe might have undertaken if allowed to intervene would have been useless. Any attempt to effect the preferential placement contemplated by the Act would necessarily result in the removal of the baby from the custody of appellees and thereupon there being no consent by the mother to any such action, the child would be returned to her. We do not believe that the Congress intended such ridiculous results nor do we believe that the Kiowa Tribe could in good faith recommend such a procedure. Any error which might have occurred by refusal of the Kiowa Tribe's petition to intervene would be harmless. It is elementary that the law, including the ICWA, and the courts do not require citizens and litigants to perform useless acts and be subjected to useless court proceedings when there is no possibility of any positive result for anyone.

In 73 Am.Jur.2d, Statutes, we find:

§ 249. Generally. In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute. Hence, it is a general principle that the courts should, if reasonably possible to do so interpret the statute, or the provision being construed, so as to give it efficient operation and effect as a whole." p. 422. "§ 251. Although the courts can only interpret a statute as framed, notwithstanding difficulties in its application, a construction of an ambiguous statute should be avoided which would render the application of the statute impracticable, or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act." p. 424. "§ 265. A statute subject to interpretation is presumed not to have been intended to produce absurd consequences, but to have the most reasonable operation that its language permits. If possible, doubtful provisions should be given a reasonable, rational, sensible, and intelligent construction. These rules prevail where they are not restrained by the clear language of the statute. Under this rule, general terms in a statute should be so limited in their application as not to lead to absurd consequences." p. 434.

Next the appellants assert error in the failure of the court to consider their petition to transfer jurisdiction to the Court of Indian Offenses at Anadarko, Oklahoma. Section 1911(b) of the Act provides:

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian *210 custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe." (Emphasis added.)

In the instant case, it is clear that the mother of Baby Boy L. objected to the transfer of the adoption proceeding to the Court of Indian Offenses and as specifically provided by the statute such a transfer could not be made over her objection. In addition, there would certainly appear to be good cause not to transfer such proceedings. All of the parties involved, the child, the adoptive parents, the biological parents and necessary witnesses were located in Sedgwick County and there was no showing that any of the parties had any contact or connection with the Indian court at Anadarko, Oklahoma. Assuming the mother had not objected to a transfer of jurisdiction, the court would still have been justified in refusing transfer on the basis of "good cause to the contrary."

Finally it is asserted the appellants had the right to petition for a change of temporary custody. Assuming the Act applied, they would have the right to file such a petition. However, under the Act, the granting of such a petition is discretionary with the court and a denial under the facts in this case would not constitute an abuse of discretion.

Therefore, we conclude, first, that the ICWA by its own terms and intent was not applicable to this action and, second, assuming arguendo the Act did apply, the trial court did not commit reversible error in denying the petition of the Kiowa Tribe to intervene or in finding the petition to change jurisdiction and petition for change of temporary custody were moot. Appellants' first three points on appeal lack merit.

For those interested in further authorities on the ICWA, see Note, The Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.D.L. Rev. 98 (1980); Note, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz. L. Rev. 1123 (1979); Guerrero, Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture Caused by Foster and Adoptive Placements of Indian Children, 7 Amer. Indian L. Rev. 51 (1979); Note, In re D.L.L. & C.L.L., Minors: Ruling on the Constitutionality of the Indian Child Welfare Act, 26 S.D.L. Rev. 67 (1981).

We will now turn to appellants' attack upon the adoption proceedings and the decree granted by the trial court. Appellants contend that there was insufficient evidence to show that Perciado was unfit to assume parental duties and in the alternative *211 that the question of his fitness is not an issue in this case. For reasons which will hereafter become clear, we are of the opinion that the fitness of Perciado was a relevant issue in these proceedings.

The trial court, in ruling that Perciado was unfit and that his consent to the adoption was not required, made the following statement:

"THE COURT: All right. Having examined the file, heard the evidence over a period of several months and through several hearings, I make the following findings of fact and conclusions of law: "I find that the subject matter of this adoption, baby boy L, is the child of an unmarried, non-Indian woman, that was born on January 29th, 1981, at Wichita, Kansas. That the natural mother ... executed her consent to the adoption of this child by the Petitioners.... That the natural mother informed, at least, the Petitioners' attorney that the father of the child was one Carmon E. Perciado, who was, at the time the petition was filed in January of 1981, was incarcerated at the Kansas State Penitentiary Industrial Reformatory, I guess K.S.I.R., in Hutchinson, Kansas. That notice was served upon the natural father whom I shall refer to herein as Respondent or hereafter. That the Respondent filed his pleading in which he acknowledged paternity, objected to the adoption by the Petitioners and requested the Court to appoint an attorney for him, and that he be present for the hearings on the petition. The Court, in response to his pleading, appointed Legal Aid Society of Wichita, Inc., to represent the Respondent which organization, through Ms. Susan Ellis, has represented the Respondent throughout these proceedings. That the Respondent has been present in court each time the matter has been before the Court. "That the matter proceeded to trial on March 30th, 1981. The Court took judicial notice of certain of its own court files: 79 CR 1298, 79 CR 619, 80 CR 1672, all of which are felony convictions, the last of which the Respondent was serving time at the reformatory at Hutchinson as a result of a plea of guilty. "The Court heard further testimony as to the Respondent's attitude and conduct and with respect to his position in society. I find that the Defendant, on numerous occasions, prior to his incarceration at Hutchinson, was either drinking alcoholic beverages or was drunk, was taking drugs, was engaged in fighting, picking fights with people, other persons. That the Respondent either pled guilty or was tried and found guilty in Municipal Court of numerous offenses consisting of battery of police officers, resisting arrest, battery, inciting a riot and spent, it would appear to be, several months incarcerated, certainly, as a result of these convictions. "I find that probably the Respondent has had contact with small children, specifically his nieces and nephews and another child of the natural mother of baby boy L. He has had no experience in taking care of children in providing for their needs, hasn't been concerned with children, to speak of. "I find that the Respondent has admitted to numerous crimes, including armed robbery, that [he] apparently has never been charged with. I find that while he was on probation to this Court that he violated the conditions of his probation. I find that the Respondent not only uses drugs, but uses toluol; that he has spent some several months at Larned Hospital, the reason for which is not clear. But I *212 think the Court can take judicial notice that Larned State Hospital is a hospital for the mentally ill or the criminally insane. The Court is of the opinion that, at least prior to his incarceration, if he didn't have a complete disregard for the law, he had, at least, a substantial disregard for the law and the rights of other people, and for that reason would not be a fit and proper person to have the care, custody and control of his child. I don't think under the law that he's entitled to a chance to demonstrate his fitness. He's had his chance. He didn't take advantage of it. The law that's applied is that as a putative father or a father of an illegitimate child he's entitled to notice of the hearing and a right to be heard as to the fitness. He's not entitled to any trial period, so to speak, to demonstrate that he now can or will in the future be able to take care of the child. I think that the Court has to go on what his conduct was in the past. The evidence is that he has been recommended to meet the parole board, but there is no indication that he's going to be granted a parole. It appears to me that the Respondent's main interest in seeking to obtain the custody of the child is for the benefit of his mother and father which, I think, is a noble gesture, but I am not able to come to the conclusion that it's because he wants the child because he's the father of the child. "The Court concludes that the Respondent is unfit within the meanings of In Re Vallimont, Finney v. Finney and the other case law applicable to these type of situations in Kansas. "The Court, therefore, concludes that the consent of the natural father is not necessary to confer jurisdiction on the Court for the adoption."

The court thereafter made "a further finding that the Respondent called the natural mother during the time that she was pregnant and advised her that he had the money for her to have an abortion."

Later, at the conclusion of the evidence on the adoption, the court found that the petitioners were suitable persons to be granted the adoption of Baby Boy L. and that it was in the best interests of the child that the adoption be granted.

In addition to the findings of the court, which were all based upon substantial evidence, there was evidence that Perciado was violent toward members of his own family, that he beat and abused the child's mother, before and during the time she was pregnant, and that he broke into her house and stole personal property from her. The evidence in this case is overwhelming that Perciado is unfit to assume parental duties based upon any known community standards or degree of proof. See Finney v. Finney, 201 Kan. 263, 440 P.2d 608 (1968), and In re Vallimont, 182 Kan. 334, 321 P.2d 190 (1958). Appellant argues that no one knows whether he would be a fit parent because he has never had the opportunity to have the child. We know of no law anywhere that would require this court or any other court to submit a helpless infant to an environment and standard of conduct displayed by *213 this father. To do so could very well endanger the physical well-being and perhaps even the life of this child. We find no error in the trial court's finding that Perciado is unfit to assume his parental duties, even if he were in a position to do so.

Finally, appellants contend that the adoption must be set aside because there was no showing that the father had failed to support the child for two years [K.S.A. 59-2102(3)] and that our statute which requires only the consent of the mother of an illegitimate child [K.S.A. 59-2102(2)] is unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment as interpreted in Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979). While this argument was not presented to the trial court and ordinarily would not be considered for the first time on appeal, we deem the issue raised under Caban of such significance that we will address the issue. It is appellant's argument that the consent of both parents to an adoption is necessary unless it falls under K.S.A. 59-2102(3), (4) or (5).

K.S.A. 59-2102 provides in part:

"Before any minor child is adopted, consent must be given to such adoption:

(1) by the living parents of a legitimate child or

(2) by the mother of an illegitimate child or

(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent or

...."

The United States Supreme Court has recognized in a trilogy of cases the constitutional rights of the father of an illegitimate child when the father-child relationship may be affected. In Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the court reviewed proceedings from the State of Illinois in which the State, upon the death of the mother of certain illegitimate children, instituted proceedings to declare the children wards of the State and to place them with court-appointed guardians. The proceedings were conducted pursuant to Illinois statutes under which an unwed father is subject to being deprived of the custody of his illegitimate children in dependency proceedings without any hearing as to his fitness as a parent whereas married or divorced parents or unwed mothers raising their children can be deprived of custody only through proceedings in which the parent is entitled to a hearing on fitness. The court held that the Illinois procedure violated the due process and equal protection *214 rights of Stanley, who had lived with and supported the children's mother and the children for years.

"The State of Illinois assumes custody of the children of married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, are declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley's claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause." Stanley v. Illinois, 405 U.S. at 658.

Certainly the safeguards prescribed in Stanley were met in the instant case. Perciado was furnished counsel and personally participated in the hotly contested hearings in which testimony was received from at least thirteen witnesses.

In Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978), the court was faced with a controversy from the State of Georgia between a stepfather and the biological father of an illegitimate eleven-year-old child. The stepfather, who had been married to the child's mother for approximately nine years, desired to adopt the child and under Georgia law, the consent of the father of an illegitimate child was not required. Mr. Justice Marshall, writing for a unanimous court, stated the issue and facts as:

"The issue in this case is the constitutionality of Georgia's adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child. The child was born in December 1964 and has been in the custody and control of his mother, appellee Ardell Williams Walcott, for his entire life. The mother and the child's natural father, appellant Leon Webster Quilloin, never married each other or established a home together, and in September 1967 the mother married appellee Randall Walcott. In March 1976, she consented to adoption of the child by her husband, who immediately filed a petition for adoption. Appellant attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child's continuing to live with appellees. Although appellant was not found to be an unfit parent, the adoption was granted over his objection. "In Stanley v. Illinois, 405 U.S. 645 (1972), this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father's interest in the `companionship, care, custody, and management' of his children is `cognizable and substantial,' id., at 651-652, and, *215 on the other hand, that the State's interest in caring for the children is `de minimis' if the father is in fact a fit parent, id., at 657-658. Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial. "Generally speaking, under Georgia law a child born in wedlock cannot be adopted without the consent of each living parent who has not voluntarily surrendered rights in the child or been adjudicated an unfit parent. Even where the child's parents are divorced or separated at the time of the adoption proceedings, either parent may veto the adoption. In contrast, only the consent of the mother is required for adoption of an illegitimate child." pp. 247-248.

Thus it may be seen that the essential part of the Georgia statute was similar to K.S.A. 59-2102(2). Quilloin, the biological father, attempted to block the proposed adoption of his illegitimate child by seeking to have the child legitimized under existing Georgia statutes, by seeking visitation rights and by objecting to the adoption. After a full evidentiary hearing on all of Quilloin's contentions, the court found that it was in the best interests of the child to grant the adoption, and that to grant the father's request for legitimation and visitation rights would not be in the best interests of the child, and both requests were denied. The trial court was affirmed by the Georgia Supreme Court and an appeal was taken to the U.S. Supreme Court where Quilloin alleged his due process and equal protection rights were violated. The due process argument was based upon a failure of the trial court to find him unfit and the equal protection argument was based upon the disparate treatment between fathers of illegitimate children and those of legitimate children. The court found that under the facts of the case, the "best interests of the child" standard was sufficient to satisfy the due process attack.

Insofar as the equal protection argument was concerned, the court stated:

"We think appellant's interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father." p. 256.

The court found that the difference in the extent of the commitment to the welfare of the child that obviously exists between fathers of illegitimate children and those of children born in wedlock was sufficient to satisfy the State's interest in the welfare of its children in setting different veto authority to an adoption, *216 and that such a different standard or requirement did not violate Quilloin's equal protection rights.

Finally, only a year later, Caban v. Mohammed, 441 U.S. 380, was decided by the court. Under a New York statute similar to ours, the court held that the statute which granted an unwed mother the authority to block the adoption of her child simply by withholding consent but did not give an unwed father a similar right was unconstitutional as a violation of the gender-based prohibition against denial of equal protection of the laws. Caban and Maria Mohammed had lived together out-of-wedlock for several years in New York City during which time two children were born. Caban was the acknowledged father and contributed to their support over the years. After he and Maria separated, and she married Mohammed, Caban continued to maintain contact with the children and throughout the years maintained a close personal and familial relationship with them. Maria's new husband desired to adopt the two Caban children. Section 111 of the New York Domestic Relations Law (McKinney 1977) provided in part:

"Subject to the limitations hereinafter set forth, consent to adoption shall be required as follows: 1. Of the adoptive child, if over fourteen years of age, unless the judge or surrogate in his discretion dispenses with such consent; 2. Of the parents or surviving parent, whether adult or infant, of a child born in wedlock; 3. Of the mother, whether adult or infant, of a child born out of wedlock;

4.... ."

Certain exceptions and limitations were contained within the statute which are not relevant to our decision here.

As is obvious, the New York statute as it applies to the father of an illegitimate child is essentially identical to our own statute now before this court for examination. A sharply divided court (5 to 4), held in Caban that the New York statute, when applied under the specific facts of the case as an absolute bar to the rights of the father to object to the adoption of his illegitimate child, was unconstitutional as a gender-based violation of the equal protection clause. The New York court in approving the adoption had relied exclusively on Section 111(3) of their statute and not upon possible statutory exceptions. A careful reading of Caban reveals that it is directed to the specific factual situation before the court. Caban had demonstrated that he was a capable and loving father; he had established and maintained a close family relationship *217 with Maria and the children for several years and continued to maintain contact with and an interest in the children after he and Maria had separated and even after her marriage to Mohammed. The court specifically pointed out that in Quilloin the court had recognized the importance of the actual factual relationship that exists. The court also indicated that its ruling might be different in a situation where an infant is involved as opposed to older children. In addition, the court stated that in cases where the father never has come forward to participate in the rearing of his child, "nothing in the Equal Protection Clause precludes the State from withholding from him [the biological father] the privilege of vetoing the adoption of that child." p. 392. It also recognized that a different result might be reached if the father was found unfit after a notice and hearing as required in Stanley. Thus it is clear that the Caban decision was a narrow one based upon its particular facts and that not all factual situations give the father of an illegitimate child veto power over adoption.

Mr. Justice Stewart, in his dissenting opinion, stated:

"The Constitution does not require that an unmarried father's substantive parental rights must always be coextensive with those afforded to the fathers of legitimate children. In this setting, it is plain that the absence of a legal tie with the mother provides a constitutionally valid ground for distinction. The decision to withhold from the unwed father the power to veto an adoption by the natural mother and her husband may well reflect a judgment that the putative father should not be able arbitrarily to withhold the benefit of legitimacy from his children. "Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship, cf. Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 (opinion concurring in judgment), it by no means follows that each unwed parent has any such right. Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring. The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father's parental claims must be gauged by other measures. By tradition, the primary measure has been the legitimate familial relationship he creates with the child by marriage with the mother. By definition, the question before us can arise only when no such marriage has taken place. In some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father. Cf. Stanley v. Illinois, supra. But here we are concerned with the rights the unwed father may have when his wishes and those of the mother are in conflict, and the child's best interests are served by a resolution in favor of the mother. It seems to me that the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional *218 claims might otherwise exist by virtue of the father's actual relationship with the children. "The appellant's equal protection challenge to the distinction drawn between the unwed father and mother seems to me more substantial. Gender, like race, is a highly visible and immutable characteristic that has historically been the touchstone for pervasive but often subtle discrimination. Although the analogy to race is not perfect and the constitutional inquiry therefore somewhat different, gender-based statutory classifications deserve careful constitutional examination because they may reflect or operate to perpetuate mythical or stereotyped assumptions about the proper roles and the relative capabilities of men and women that are unrelated to any inherent differences between the sexes. Cf. Orr v. Orr, 440 U.S. 268. Sex-based classifications are in many settings invidious because they relegate a person to the place set aside for the group on the basis of an attribute that the person cannot change. Reed v. Reed, 404 U.S. 71; Stanton v. Stanton, 421 U.S. 7; Frontiero v. Richardson, 411 U.S. 677; Weinberger v. Wiesenfeld, 420 U.S. 636; Orr v. Orr, supra. Such laws cannot be defended, as can the bulk of the classifications that fill the statute books, simply on the ground that the generalizations they reflect may be true of the majority of members of the class, for a gender-based classification need not ring false to work a discrimination that in the individual case might be invidious. Nonetheless, gender-based classifications are not invariably invalid. When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated. See, e.g., Schlesinger v. Ballard, 419 U.S. 498. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59 (concurring opinion). "In my view, the gender-based distinction drawn by New York falls in this latter category. With respect to a large group of adoptions those of newborn children and infants unwed mothers and unwed fathers are simply not similarly situated, as my Brother Stevens has demonstrated. Our law has given the unwed mother the custody of her illegitimate children precisely because it is she who bears the child and because the vast majority of unwed fathers have been unknown, unavailable, or simply uninterested. See H. Clark, Law of Domestic Relations 176-177 (1968); H. Krause, Illegitimacy; Law and Social Policy 29-32 (1971). This custodial preference has carried with it a correlative power in the mother to place her child for adoption or not to do so. "The majority of the States have incorporated these basic common-law rules in their statutes identifying the persons whose participation or consent is requisite to a valid adoption. See generally Note, 59 Va. L. Rev. 517 (1973); Comment, 70 Mich. L. Rev. 1581 (1972). These common-law and statutory rules of law reflect the physical reality that only the mother carries and gives birth to the child, as well as the undeniable social reality that the unwed mother is always an identifiable parent and the custodian of the child until or unless the State intervenes. The biological father, unless he has established a familial tie with the child by marrying the mother, is often a total stranger from the State's point of view. I do not understand the Court to question these pragmatic differences. See ante, at 392. An unwed father who has not come forward and who has established no relationship with the child is plainly not in a situation similar to the mother's. New York's consent distinctions have clearly been made on this basis, and in my view they do not violate the Equal Protection Clause of the Fourteenth Amendment.

*219 See Schlesinger v. Ballard, supra.

"In this case, of course, we are concerned not with an unwilling or unidentified father but instead with an unwed father who has established a paternal relationship with his children. He is thus similarly situated to the mother, and his claim is that he thus has parental interests no less deserving of protection than those of the mother. His contention that the New York law in question consequently discriminates against him on the basis of gender cannot be lightly dismissed. For substantially the reasons expressed by Mr. Justice Stevens in his dissenting opinion, post, at 412-413, I believe, however, that this gender-based distinction does not violate the Equal Protection Clause as applied in the circumstances of the present case. "It must be remembered that here there are not two, but three interests at stake: the mother's, the father's, and the children's. Concerns humane as well as practical abundantly support New York's provision that only one parent need consent to the adoption of an illegitimate child, though it requires both parents to consent to the adoption of one already legitimate. If the consent of both unwed parents were required, and one withheld that consent, the illegitimate child would remain illegitimate. Viewed in these terms the statute does not in any sense discriminate on the basis of sex. The question, then, is whether the decision to select the unwed mother as the parent entitled to give or withhold consent and to apply that rule even when the unwed father in fact has a paternal relationship with his children constitutes invidious sex-based discrimination." pp. 397-400.

Mr. Justice Stevens in his dissenting opinion addressed the constitutional issues and found no violation in the New York statute and also set forth his ideas on the limited application of the majority opinion as follows:

"There is often the risk that the arguments one advances in dissent may give rise to a broader reading of the Court's opinion than is appropriate. That risk is especially grave when the Court is embarking on a new course that threatens to interfere with social arrangements that have come into use over long periods of time. Because I consider the course on which the Court is currently embarked to be potentially most serious, I shall explain why I regard its holding in this case as quite narrow. "The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees. Because the Court has crossed a new constitutional frontier with today's decision, those reliance interests unquestionably foreclose retroactive application of this ruling. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107. Families that include adopted children need have no concern about the probable impact of this case on their familial security. "Nor is there any reason why the decision should affect the processing of most future adoptions. The fact that an unusual application of a state statute has been held unconstitutional on equal protection grounds does not necessarily eliminate the entire statute as a basis for future legitimate state action. The procedure to be followed in cases involving infants who are in the custody of their mothers whether solely or jointly with the father or of agencies with authority to consent *220 to adoption, is entirely unaffected by the Court's holding or by its reasoning. In fact, as I read the Court's opinion, the statutes now in effect may be enforced as usual unless `the adoption of an older child is sought,' ante, at 392, and the `father has established a substantial relationship with the child and [is willing to admit] his paternity.' Ante, at 393. State legislatures will no doubt promptly revise their adoption laws to comply with the rule of this case, but as long as state courts are prepared to construe their existing statutes to contain a requirement of paternal consent `in cases such as this,' ibid., I see no reason why they may not continue to enter valid adoption decrees in the countless routine cases that will arise before the statutes can be amended. "In short, this is an exceptional case that should have no effect on the typical adoption proceeding. Indeed, I suspect that it will affect only a tiny fraction of the cases covered by the statutes that must now be rewritten. Accordingly, although my disagreement with the Court is as profound as that fraction is small, I am confident that the wisdom of judges will forestall any widespread harm." pp. 415-417.

We agree and concur with the views expressed by Mr. Justice Stewart and Mr. Justice Stevens.

With the foregoing factual situation and legal principles illucidated in Stanley, Quilloin and Caban before us, we now turn to the validity of K.S.A. 59-2102(2) as applied to the factual situation of Perciado.

Kansas has not ignored the rights of an unwed father in adoption proceedings. See Note, Constitutional Law - Rights of an Unwed Father in an Adoption Proceeding, 27 Kan. L. Rev. 483 (1979). In In re Lathrop, 2 Kan. App.2d 90, 575 P.2d 894 (1978), the court was faced with two issues: (1) whether the natural father of an illegitimate child has a paramount right over non-parents to custody of the child; and (2) whether K.S.A. 59-2102(2), which requires the consent of the unwed mother but not the unwed father is unconstitutional. The Court of Appeals affirmed a trial court ruling that the natural father of an illegitimate child has a paramount right to custody as against non-parents where both the adopting parents and the father are found to be fit. The Court of Appeals also held that the statute did not violate either the due process or equal protection clauses of the Constitution. The mother of the infant child consented two days after birth to the baby's adoption by the appellees and they were given immediate care and custody. At the adoption hearing the natural father objected and, after a hearing in which the father and the adoptive parents were all found to be fit, the court denied the adoption. After giving careful consideration to Stanley v. Illinois and Quilloin *221 v. Walcott, along with the parental preference doctrine as recognized in Kansas, the court held:

"The rights to conceive and raise one's children are `essential rights' protected by the due process and equal protection clauses of the Fourteenth Amendment even though the family relationship is unlegitimized by marriage." Syl. ¶ 1. "In an appeal by prospective adoptive parents from a district court order denying their petition to adopt a baby girl, held: the father of the illegitimate child who appeared and sought custody of the child and who had not been found unfit was properly granted custody as against the prospective adoptive parents." Syl. ¶ 2. (Emphasis added.) "The father of an illegitimate child is an `interested party' within the meaning of K.S.A. 59-2278 and must be given notice of the pending adoption of his child." Syl. ¶ 3. "If after being given notice of the pending adoption the father appears and asserts his desire to assume parental responsibilities toward the child, his rights in the child must be given preference over those of third-party adoptive parents unless he has failed to assume parental responsibilities for the statutory period of two years or he is found to be unfit. However, if he chooses not to appear and make known his desire to care for the child, his rights are de minimis and may be terminated without his consent by finalizing the adoption." Syl. ¶ 4. (Emphasis added.)

The court went on to hold that K.S.A. 59-2102(2) did not offend the due process and equal protection guarantees of the constitution.

In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), the Supreme Court was faced with a determination of whether the father of an illegitimate child could give consent to an adoption when the child had been abandoned by its unwed mother. In Aslin this court stated:

"We emphasize in the instant case that we are asked only to determine whether the father of an illegitimate child can give his consent to adoption under K.S.A. 59-2102(3). Here a simple reading of the Kansas statutory provision indicates paragraph three does not differentiate between legitimate and illegitimate children. The unadjudicated natural father, William Thompson, notoriously recognized his paternity not only by taking his children in; acknowledging them as his own; giving them parental support; and finding them a home with his sister and her husband, but also by recognizing them in writing when he consented to the adoption petition. The trial court found for purposes of the adoption William Thompson was the natural father of the children and could give his consent. It should not be prerequisite, in a situation such as we have in this case, that the father first be adjudicated the natural father in separate proceedings. When the question arises whether or not the mother has abandoned her illegitimate children, and the father has notoriously and in writing acknowledged his paternity before the court, he should be allowed to consent to their adoption. Such a holding places no limitation on the due process notice requirements to the parent who is alleged to have abandoned the child." pp. 81-82.

*222 Appellants argue, however, that the fitness of Perciado is not an issue in this case and that Caban should be applied to strike down all adoptions where the trial court relies upon K.S.A. 59-2102(2) in dispensing with the necessity for the consent of the father of an illegitimate child. We think appellants construe Caban too broadly.

Appellants rely principally upon In re Adoption of Wilson, 227 Kan. 803, 610 P.2d 598 (1980), and Treiber v. Stong, 5 Kan. App.2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980), to support their contentions. In Treiber the court was faced with a custody battle between the unwed parents. Although an adoption had been involved, the adopting parents evidently grew discouraged over the litigation, dismissed the adoption proceedings and relinquished custody to the mother. The court in its opinion stated:

"[I]f the parental rights of a natural father of an illegitimate child have not been severed and those rights have been asserted by him, he has preference to custody of the child over prospective adoptive parents unless he has failed or refused to assume his parental duties for two consecutive years. In re Lathrop, 2 Kan. App.2d 90, 575 P.2d 894 (1978); K.S.A. 59-2102(3)." p. 395.

Appellants contend that as the Court of Appeals failed to include the unfitness of the father in the foregoing statement, they were modifying Lathrop. It should be noted that the statement and Syl. ¶ 1 are pure dicta in that the issue of consent to adoption became moot when the adoption proceedings were dismissed and any discussion on the point relied upon by the appellants is not controlling. See Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶¶ 1, 2, 596 P.2d 446 (1979).

In Wilson the dispute was between the natural father of two children and the adoptive parents, and principally involved a finding that the father had failed to assume the duties of a parent for two (2) consecutive years under K.S.A. 59-2102(3). The children were born in wedlock and no question as to the application of K.S.A. 59-2102(2) was before the court. While the trial court stated "the fitness of a parent is not an issue in determining whether such parent's consent to a proposed adoption is required by K.S.A. 59-2102," the statements of the court must be read in light of the facts of the case. The question of whether fitness is an issue under K.S.A. 59-2102(2) when an illegitimate child is involved, was not before the court.

*223 In examining the constitutionality of any statute there are certain basic principles which must be adhered to:

"We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court's duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done." Board of Greenwood County Comm'rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980). "A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications." Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶ 6, 596 P.2d 446 (1979).

The corollary of Flax, of course, is that a statute apparently void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled "The Bet", 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).

With the foregoing principles in mind it is obvious that K.S.A. 59-2102(2) is not unconstitutional in all adoption cases involving an unwed father. The extremes involving application of the statute would be (1) where the father is unknown or the child is the result of rape, it is obvious that consent would not be required; and (2) in a case such as Caban where the children were several years old, the father had established a close-knit familial relationship with the children and their mother and had supported and nurtured them for years, consent would be necessary. Is there a middle ground in which K.S.A. 59-2102(2) is constitutional based upon the facts of the case? We think so. In Caban the Supreme Court indicated that the adoption of an illegitimate infant or one whose father had failed to come forth and provide support would probably not require consent so long as the safeguards of Stanley and Quilloin were observed. The court has often recognized that the State has a definite interest in the welfare of its children and a detailed discussion of the State's role as parens patraie would unduly extend this already too lengthy opinion.

Appellants contend that the appellees should have first prevailed upon the mother to bring relinquishment proceedings *224 under K.S.A. 38-113a. Such proceedings are not a part of the adoption statutes and while they have no application to the facts before us, the statute is indicative of the legislative intent involving illegitimate children and reveals certain factual situations which are pertinent to our discussion. The statute provides that the mother of an illegitimate child may relinquish her child for adoption pursuant to K.S.A. 38-112a without the consent of the father when:

"(1) The father abandoned or neglected the child after having knowledge of the child's birth;

(2) the father is unfit as a parent;

(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth; (4) the father failed without reasonable cause to provide support for the mother during the six months prior to the child's birth; (5) the father abandoned the mother after having knowledge of the pregnancy; or (6) the birth of the illegitimate child was the result of rape of the mother."

While we do not consider such factual situations to be exclusive, we believe they are descriptive of situations where, applying the requirements of Caban, the adoption of an illegitimate child without the father's consent pursuant to K.S.A. 59-2102(2) would not be unconstitutional.

We hold that under the facts of this case the consent of Mr. Perciado to the adoption of his illegitimate child is not required and the application of K.S.A. 59-2102(2) is constitutional and does not violate either the due process or equal protection guarantees of the Fourteenth Amendment.

The judgment is affirmed.

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In Re Adoption of Baby Boy L - 231 Kan. 199, 643 P.2d 168

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Mississippi Choctaw Indian Band v. Holyfield

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Mississippi Choctaw Indian Band v. Holyfield

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The first Supreme Court case concerning ICWA. It addressed Tribal Court jurisdiction following challenges to its exclusivity by state courts. I believe the consideration of this Case is highly beneficial to a full understanding of the topic as it provides context to how ICWA has been received by many states, and just how underhanded tactics will go just to avoid it. In this particular instance, the point of vulnerability in ICWA exploited was the issue of a child's domicile and existing family's domicile. Essentially, state courts and attorney's manufactured a judicial exception that "allows state courts to acquire jurisdiction over child custody proceedings when Indian children are not part of an “existing Indian family"" (From Supplemental Source) This exception known as the Existing Indian Family exception (EIF) is a brazenly uncharitable interpretation of the statute and simply a tool to circumvent handing power over, in any extent, to tribal courts. This Case specifically reviewed whether the Supreme Court of Mississippi decision to affirm that two twins who were not "domiciled" on the reservation under state law, had never been physically on the reservation, and were "voluntarily surrendered" by their parents, were therefore, not subject to tribal court jurisdiction. The Supreme court ultimately ruled in 1989 that the Mississippi Supreme court decision was in error, reaffirmed that ICWA has exclusive jurisdiction over any case where a parent is domiciled on the reservation, no matter if the child was born off-reservation or what the parent's personal desires are in the custody case.

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U.S. Supreme Court
Mississippi Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)Mississippi Band of Choctaw Indians v. Holyfield No. 87-980 Argued January 11, 1989 Decided April 3, 1989 APPEAL FROM THE SUPREME COURT OF MISSISSIPPI On the basis of extensive evidence indicating that large numbers of Indian children were being separated from their families and tribes and were being placed in non-Indian homes through state adoption, foster care, and parental rights termination proceedings, and that this practice caused serious problems for the children, their parents, and their tribes, Congress enacted the Indian Child Welfare Act of 1978 (ICWA), which, inter alia, gives tribal courts exclusive jurisdiction over custody proceedings involving an Indian child "who resides or is domiciled within" a tribe's reservation. This case involves the status of twin illegitimate babies, whose parents were enrolled members of appellant Tribe and residents and domiciliaries of its reservation in Neshoba County, Mississippi. After the twins' births in Harrison County, some 200 miles from the reservation, and their parents' execution of consent-to-adoption forms, they were adopted in that county's Chancery Court by the appellees Holyfield, who were non-Indian. That court subsequently overruled appellant's motion to vacate the adoption decree, which was based on the assertion that, under the ICWA exclusive jurisdiction was vested in appellant's tribal court. The Supreme Court of Mississippi affirmed, holding, among other things, that the twins were not "domiciled" on the reservation under state law, in light of the Chancery Court's findings (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. Therefore, the court said, the twins' domicile was in Harrison County, and the Chancery Court properly exercised jurisdiction over the adoption proceedings. Held: The twins were "domiciled" on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. -54. (a) Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA, and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that, in certain situations, the state courts did not have jurisdiction over child custody proceedings. In fact, Page 490 U. S. 31 the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state law definitions of "domicile," whereby different rules could apply from time to time to the same Indian child simply as a result of his or her being moved across state lines. Pp. -47. (b) The generally accepted meaning of the term "domicile" applies under the ICWA to the extent it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well settled common law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. This result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival, and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation. Pp. -53. 511 So. 2d 918, reversed and remanded. BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, post, p. . Page 490 U. S. 32 JUSTICE BRENNAN delivered the opinion of the Court. This appeal requires us to construe the provisions of the Indian Child Welfare Act that establish exclusive tribal jurisdiction over child custody proceedings involving Indian children domiciled on the tribe's reservation. I A The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called "[t]he wholesale removal of Indian children from their homes, . . . the most tragic aspect of Indian life today." Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id. Page 490 U. S. 33 at 15; see also H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report). Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and, during the year 1971-1972, nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence, [ Footnote 1] as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings. Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the Page 490 U. S. 34 ICWA. [ Footnote 2] While much of the testimony again focused on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves of the massive removal of their children. For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association, testified as follows: "Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships." 1978 Hearings at 193. See also id. at 62. [ Footnote 3] Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children: "One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life Page 490 U. S. 35 and childrearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values, and, at worst, contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child." Id. at 191-192. [ Footnote 4] The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found: "(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . ;" "(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies, and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and" "(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people Page 490 U. S. 36 and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901. At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe," as well as for wards of tribal courts regardless of domicile. [ Footnote 5] Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court. Various other provisions of ICWA Title I set procedural and substantive standards for those child custody proceedings that do take place in state court. The procedural safeguards include requirements concerning notice and appointment of counsel; parental and tribal rights of intervention and petition for invalidation of illegal proceedings; procedures governing voluntary consent to termination of parental rights; and a full faith and credit obligation in respect to tribal court decisions. See §§ 1901-1914. The most important substantive requirement imposed on state courts is that of § 1915(a), which, absent "good cause" to the contrary, mandates Page 490 U. S. 37 that adoptive placements be made preferentially with (1) members of the child's extended family, (2) other members of the same tribe, or (3) other Indian families. The ICWA, thus, in the words of the House Report accompanying it, "seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society." House Report, at 23. It does so by establishing "a Federal policy that, where possible, an Indian child should remain in the Indian community," ibid., and by making sure that Indian child welfare determinations are not based on "a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family." Id. at 24. [ Footnote 6] B This case involves the status of twin babies, known for our purposes as B.B. and G.B., who were born out of wedlock on December 29, 1985. Their mother, J.B., and father, W.J., were both enrolled members of appellant Mississippi Band of Choctaw Indians (Tribe), and were residents and domiciliaries of the Choctaw Reservation in Neshoba County, Mississippi. J.B. gave birth to the twins in Gulfport, Harrison County, Mississippi, some 200 miles from the reservation. On January 10, 1986, J.B. executed a consent-to-adoption form before the Chancery Court of Harrison Page 490 U. S. 38 County. Record 8-10. [ Footnote 7] W.J. signed a similar form. [ Footnote 8] On January 16, appellees Orrey and Vivian Holyfield [ Footnote 9] filed a petition for adoption in the same court, id. at 1-5, and the chancellor issued a Final Decree of Adoption on January 28. Id. at 13-14. [ Footnote 10] Despite the court's apparent awareness of the ICWA, [ Footnote 11] the adoption decree contained no reference to it, nor to the infants' Indian background. Two months later, the Tribe moved in the Chancery Court to vacate the adoption decree on the ground that, under the ICWA, exclusive jurisdiction was vested in the tribal court. Id. at 15-18. [ Footnote 12] On July 14, 1986, the court overruled the motion, Page 490 U. S. 39 holding that the Tribe "never obtained exclusive jurisdiction over the children involved herein. . . ." The court's one-page opinion relied on two facts in reaching that conclusion. The court noted first that the twins' mother "went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation," and that the parents had promptly arranged for the adoption by the Holyfields. Second, the court stated: "At no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation." Id. at 78. The Supreme Court of Mississippi affirmed. 511 So. 2d 918 (1987). It rejected the Tribe's arguments that the state court lacked jurisdiction and that it, in any event, had not applied the standards laid out in the ICWA. The court recognized that the jurisdictional question turned on whether the twins were domiciled on the Choctaw Reservation. It answered that question as follows: "At no point in time can it be said the twins resided on or were domiciled within the territory set aside for the reservation. Appellant's argument that living within the womb of their mother qualifies the children's residency on the reservation may be lauded for its creativity; however, apparently it is unsupported by any law within this state, and will not be addressed at this time due to the far-reaching legal ramifications that would occur were we to follow such a complicated tangential course." Id. at 921. Page 490 U. S. 40 The court distinguished Mississippi cases that appeared to establish the principle that "the domicile of minor children follows that of the parents," ibid.; see Boyle v. Griffin, 84 Miss. 41, 36 So. 141 (1904); Stubbs v. Stubbs, 211 So. 2d 821 (Miss.1968); see also In re Guardianship of Watson, 317 So. 2d 30 (Miss.1975). It noted that "the Indian twins . . . were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d at 921. Therefore, the court said, the twins' domicile was in Harrison County, and the state court properly exercised jurisdiction over the adoption proceedings. Indeed, the court appears to have concluded that, for this reason, none of the provisions of the ICWA was applicable. Ibid. ("[T]hese proceedings . . . actually escape applicable federal law on Indian Child Welfare"). In any case, it rejected the Tribe's contention that the requirements of the ICWA applicable in state courts had not been followed: "[T]he judge did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc." Ibid. [ Footnote 13] Page 490 U. S. 41 Because of the centrality of the exclusive tribal jurisdiction provision to the overall scheme of the ICWA, as well as the conflict between this decision of the Mississippi Supreme Court and those of several other state courts, [ Footnote 14] we granted plenary review. 486 U.S. 1021 (1988). [ Footnote 15] We now reverse. Page 490 U. S. 42 II Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA. Indeed, some of the ICWA's jurisdictional provisions have a strong basis in pre-ICWA case law in the federal and state courts. See, e.g., Fisher v. District Court, Sixth Judicial District of Montana, (1976) (per curiam) (tribal court had exclusive jurisdiction over adoption proceeding where all parties were tribal members and reservation residents); Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich.1973) (tribal court had exclusive jurisdiction over custody of Indian children found to have been domiciled on reservation); Wakefield v. Little Light, 276 Md. 333, 347 A.2d 228 (1975) (same); In re Adoption of Buehl, 87 Wash. 2d 649, 555 P.2d 1334 (1976) (state court lacked jurisdiction over custody of Indian children placed in off-reservation foster care by tribal court order); see also In re Lelah-puc-ka-chee, 98 F. 429 (ND Iowa 1899) (state court lacked jurisdiction to appoint guardian for Indian child living on reservation). In enacting the ICWA, Congress confirmed that, in child custody proceedings involving Indian children domiciled on the reservation, tribal jurisdiction was exclusive as to the States. The state court proceeding at issue here was a "child custody proceeding." That term is defined to include any " adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." 25 U.S.C. § 1903(1)(iv). Moreover, the twins were "Indian children." See 25 U.S.C. § 1903(4). The sole issue in this case is, as the Supreme Court of Mississippi recognized, whether the twins were "domiciled" on the reservation. [Footnote 16]Page 490 U. S. 43 A The meaning of "domicile" in the ICWA is, of course, a matter of Congress' intent. The ICWA itself does not define it. The initial question we must confront is whether there is any reason to believe that Congress intended the ICWA definition of "domicile" to be a matter of state law. While the meaning of a federal statute is necessarily a federal question in the sense that its construction remains subject to this Court's supervision, see P. Bator, D. Meltzer, P. Mistakin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 566 (3d ed.1988); cf. Reconstruction Finance Corporation v. Beaver County, , (1946), Congress sometimes intends that a statutory term be given content by the application of state law. De Sylva v. Ballentine, , (1956); see also Beaver County, supra; Helvering v. Stuart, , -162 (1942). We start, however, with the general assumption that "in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute, is not making the application of the federal act dependent on state law." Jerome v. United States, , (1943); NLRB v. Natural Gas Utility Dist. of Hawkins County, , (1971); Dickerson v. New Banner Institute, Inc., , (1983). One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. Jerome, supra, at ; Dickerson, supra, at -120; United States v. Pelzer, , -403 (1941). Accordingly, the cases in which we have Page 490 U. S. 44 found that Congress intended a state law definition of a statutory term have often been those where uniformity clearly was not intended. E.g., Beaver County, supra, at (statute permitting States to apply their diverse local tax laws to real property of certain Government corporations). A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." Jerome, supra, at ; Dickerson, supra, at -120; Pelzer, 312 U.S. at -403. For this reason, "we look to the purpose of the statute to ascertain what is intended." Id. at . In NLRB v. Hearst Publications, Inc., (1944), we rejected an argument that the term "employee" as used in the Wagner Act should be defined by state law. We explained our conclusion as follows: "Both the terms and the purposes of the statute as well as the legislative history show that Congress had in mind no . . . patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is . . . intended to solve a national problem on a national scale. . . . Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by . . . varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems." Id. at . See also Natural Gas Utility Dist., supra, at 603-604. For the two principal reasons that follow, we believe that what we said of the Wagner Act applies equally well to the ICWA. First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its Page 490 U. S. 45 enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities. [ Footnote 17] More specifically, its purpose was, in part, to make clear that, in certain situations, the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. See 25 U.S.C. § 1901(5) (state "judicial bodies . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families"). [ Footnote 18] Under these circumstances, it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Second, Congress could hardly have intended the lack of nationwide uniformity that would result from state law definitions of domicile. An example will illustrate. In a case quite similar to this one, the New Mexico state courts found exclusive jurisdiction in the tribal court pursuant to § 1911(a), Page 490 U. S. 46 because the illegitimate child took the reservation domicile of its mother at birth -- notwithstanding that the child was placed in the custody of adoptive parents two days after its off-reservation birth and the mother executed a consent to adoption 10 days later. In re Adoption of Baby Child, 102 N.M. 735, 737-738, 700 P.2d 198, 200-201 (App.1985). [ Footnote 19] Had that mother traveled to Mississippi to give birth, rather than to Albuquerque, a different result would have obtained if state law definitions of domicile applied. The same, presumably, would be true if the child had been transported to Mississippi for adoption after her off-reservation birth in New Mexico. While the child's custody proceeding would have been subject to exclusive tribal jurisdiction in her home State, her mother, prospective adoptive parents, or an adoption intermediary could have obtained an adoption decree in state court merely by transporting her across state lines. [ Footnote 20] Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind. [ Footnote 21] Page 490 U. S. 47 We therefore think it beyond dispute that Congress intended a uniform federal law of domicile for the ICWA. [ Footnote 22] B It remains to give content to the term "domicile" in the circumstances of the present case. The holding of the Supreme Court of Mississippi that the twin babies were not domiciled on the Choctaw Reservation appears to have rested on two findings of fact by the trial court: (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents. 511 So. 2d at 921; see Record 78. The question before us, therefore, is whether, under the ICWA definition of "domicile," such facts suffice to render the twins nondomiciliaries of the reservation. We have often stated that, in the absence of a statutory definition, we "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, , (1962); Russello v. United States, , (1983). We do so, of course, in the light of the "'object and policy"' of the statute. Mastro Plastics Corp. v. NLRB, , (1956), quoting United States v. Boisdore's Heirs, 8 How. 113, (1849). We therefore look both to the generally accepted meaning of the term "domicile" and to the purpose of the statute. That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general state law principles to determine "the ordinary meaning of the words used." Well settled state law can inform our understanding of what Congress had in mind when it employed a term it did not define. Accordingly, we find it helpful to borrow established common law principles of domicile Page 490 U. S. 48 to the extent that they are not inconsistent with the objectives of the congressional scheme. "Domicile" is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. See generally Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 17-38 (4th ed.1986); R. Weintraub, Commentary on the Conflict of Laws 12-24 (2d ed.1980). "Domicile" is not necessarily synonymous with "residence," Perri v. Kisselbach, 34 N.J. 84, 87, 167 A.2d 377, 379 (1961), and one can reside in one place but be domiciled in another, District of Columbia v. Murphy, (1941); In re Estate of Jones, 192 Iowa 78, 80, 182 N.W. 227, 228 (1921). For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there. Texas v. Florida, , (1939). One acquires a "domicile of origin" at birth, and that domicile continues until a new one (a "domicile of choice") is acquired. Jones, supra, at 81, 182 N.W. at 228; In re Estate of Moore, 68 Wash. 2d 792, 796, 415 P.2d 653, 656 (1966). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Yarborough v. Yarborough, , (1933). In the case of an illegitimate child, that has traditionally meant the domicile of its mother. Kowalski v. Wojtkowski, 19 N.J. 247, 258, 116 A.2d 6, 12 (1955); Moore, supra, at 796, 415 P.2d at 656; Restatement § 14(2), § 22, Comment c; 25 Am. Jur.2d Domicil § 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicil of origin will be in a place where the child has never been." Restatement § 14, Comment b. It is undisputed in this case that the domicile of the mother (as well as the father) has been, at all relevant times, on the Choctaw Reservation. Tr. of Oral Arg. 28-29. Thus, it is clear that at their birth the twin babies were also domiciled Page 490 U. S. 49 on the reservation, even though they themselves had never been there. The statement of the Supreme Court of Mississippi that "[a]t no point in time can it be said the twins . . . were domiciled within the territory set aside for the reservation," 511 So. 2d at 921, may be a correct statement of that State's law of domicile, but it is inconsistent with generally accepted doctrine in this country and cannot be what Congress had in mind when it used the term in the ICWA. Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. See 25 U.S.C. §§ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"), 1902 ("promote the stability and security of Indian tribes"). [ Footnote 23] The numerous prerogatives accorded the tribes through the ICWA's substantive provisions, e.g., §§ 1911(a) (exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention), 1912(a) (notice), 1914 (right to petition for invalidation of state court action), 1915(c) (right to alter presumptive placement priorities applicable to state court actions), 1915(e) (right to obtain records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves. In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children Page 490 U. S. 50 themselves of such placements outside their culture. [ Footnote 24] Congress determined to subject such placements to the ICWA's jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents. As the 1977 Final Report of the congressionally established American Indian Policy Review Commission stated, in summarizing these two concerns, "[r]emoval of Indian children from their cultural setting seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children." Senate Report, at 52. [ Footnote 25] Page 490 U. S. 51 These congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme is inconsistent with what Congress intended. [ Footnote 26] See In re Adoption of Child of Indian Heritage, 111 N.J. 155, 168-171, 543 A.2d 925, 931-933 (1988). The appellees in this case argue strenuously that the twins' mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields. But that was precisely part of Congress' concern. Page 490 U. S. 52 Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish. [ Footnote 27] The Supreme Court of Utah expressed this well in its scholarly and sensitive opinion in what has become a leading case on the ICWA: "To the extent that [state] abandonment law operates to permit [the child's] mother to change [the child's] domicile as part of a scheme to facilitate his adoption by non-Indians while she remains a domiciliary of the reservation, it conflicts with and undermines the operative scheme established by subsections [1911(a)] and [1913(a)] to deal with children of domiciliaries of the reservation, and weakens considerably the tribe's ability to assert its interest in its children. The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from, but on a parity with, the interest of the parents. This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand, and that non-Indian courts are slow to recognize. It is precisely in recognition of this relationship, however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and Page 490 U. S. 53 adoption matters for reservation-domiciled Indian children, and the preferred forum for nondomiciliary Indian children. [State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents." In re Adoption of Halloway, 732 P.2d 962, 969-970 (1986). We agree with the Supreme Court of Utah that the law of domicile Congress used in the ICWA cannot be one that permits individual reservation-domiciled tribal members to defeat the tribe's exclusive jurisdiction by the simple expedient of giving birth and placing the child for adoption off the reservation. Since, for purposes of the ICWA, the twin babies in this case were domiciled on the reservation when adoption proceedings were begun, the Choctaw tribal court possessed exclusive jurisdiction pursuant to 25 U.S.C. § 1911(a). The Chancery Court of Harrison County was, accordingly, without jurisdiction to enter a decree of adoption; under ICWA § 104, 25 U.S.C. § 1914, its decree of January 28, 1986, must be vacated. III We are not unaware that over three years have passed since the twin babies were born and placed in the Holyfield home, and that a court deciding their fate today is not writing on a blank slate in the same way it would have in January, 1986. Three years' development of family ties cannot be undone, and a separation at this point would doubtless cause considerable pain. Whatever feelings we might have as to where the twins should live, however, it is not for us to decide that question. We have been asked to decide the legal question of who should make the custody determination concerning these children -- not what the outcome of that determination should be. The law places that decision in the hands of the Choctaw tribal court. Had the mandate of the ICWA been followed in Page 490 U. S. 54 1986, of course, much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to "reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation." Halloway, 732 P.2d at 972. It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the Tribe -- and perhaps the children themselves -- in having them raised as part of the Choctaw community. [ Footnote 28] Rather, "we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy." Ibid. The judgment of the Supreme Court of Mississippi is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1] For example, Dr. Joseph Westermeyer, a University of Minnesota social psychiatrist, testified about his research with Indian adolescents who experienced difficulty coping in white society, despite the fact that they had been raised in a purely white environment: "[T]hey were raised with a white cultural and social identity. They are raised in a white home. They attended, predominantly white schools, and in almost all cases, attended a church that was predominantly white, and really came to understand very little about Indian culture, Indian behavior, and had virtually no viable Indian identity. They can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a historical figure, but were not a viable contemporary social group." "Then, during adolescence, they found that society was not to grant them the white identity that they had. They began to find this out in a number of ways. For example, a universal experience was that, when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from the parents not to date these Indian children. . . ." "The other experience was derogatory name-calling in relation to their racial identity. . . . " "* * * *" "[T]hey were finding that society was putting on them an identity which they didn't possess and taking from them an identity that they did possess." 1974 Hearings, at 46. [ Footnote 2] Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess. (1977) (hereinafter 1977 Hearings); Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978) (hereinafter 1978 Hearings). [ Footnote 3] These sentiments were shared by the ICWA's principal sponsor in the House, Rep. Morris Udall, see 124 Cong.Rec. 38102 (1978) ("Indian tribes and Indian people are being drained of their children and, as a result, their future as a tribe and a people is being placed in jeopardy"), and its minority sponsor, Rep. Robert Lagomarsino, see ibid. ("This bill is directed at conditions which . . . threaten . . . the future of American Indian tribes . . ."). [ Footnote 4] One of the particular points of concern was the failure of non-Indian child welfare workers to understand the role of the extended family in Indian society. The House Report on the ICWA noted: "An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect, and thus as grounds for terminating parental rights." House Report at 10. At the conclusion of the 1974 Senate hearings, Senator Abourezk noted the role that such extended families played in the care of children: "We've had testimony here that, in Indian communities throughout the Nation, there is no such thing as an abandoned child, because, when a child does have a need for parents for one reason or another, a relative or a friend will take that child in. It's the extended family concept." 1974 Hearings at 473. See also Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich.1973) (discussing custom of extended family and tribe assuming responsibility for care of orphaned children). [ Footnote 5] Section 1911(a) reads in full: "An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child." [ Footnote 6] The quoted passages are from the House Report's discussion of § 1915, in which the ICWA attempts to accomplish these aims, in regard to nondomiciliaries of the reservation, through the establishment of standards for state court proceedings. In regard to reservation domiciliaries, these goals are pursued through the establishment of exclusive tribal jurisdiction under § 1911(a). Beyond its jurisdictional and other provisions concerning child custody proceedings, the ICWA also created, in its Title II, a program of grants to Indian tribes and organizations to aid in the establishment of child welfare programs. See 25 U.S.C. §§ 1931-1934. [ Footnote 7] Section 103(a) of the ICWA, 25 U.S.C. § 1913(a), requires that any voluntary consent to termination of parental rights be executed in writing and recorded before a judge of a "court of competent jurisdiction," who must certify that the terms and consequences of the consent were fully explained and understood. Section 1913(a) also provides that any consent given prior to birth or within 10 days thereafter is invalid. In this case the mother's consent was given 12 days after the birth. See also n. 26, infra. [ Footnote 8] W.J.'s consent to adoption was signed before a notary public in Neshoba County on January 11, 1986. Record 11-12. Only on June 3, 1986, however -- well after the decree of adoption had been entered and after the Tribe had filed suit to vacate that decree -- did the chancellor of the Chancery Court certify that W.J. had appeared before him in Harrison County to execute the consent to adoption. Id. at 12-A. [ Footnote 9] Appellee Orrey Holyfield died during the pendency of this appeal. [ Footnote 10] Mississippi adoption law provides for a 6-month waiting period between interlocutory and final decrees of adoption, but grants the chancellor discretionary authority to waive that requirement and immediately enter a final decree of adoption. See Miss.Code Ann. § 93-17-13 (1972). The chancellor did so here, Record 14, with the result that the final decree of adoption was entered less than one month after the babies' birth. [ Footnote 11] The chancellor's certificates that the parents had appeared before him to consent to the adoption recited that "the Consent and Waiver was given in full compliance with Section 103(a) of Public Law 95-608" ( i.e., 25 U.S.C. § 1913(a)). Record 10, 12-A. [ Footnote 12] The ICWA specifically confers standing on the Indian child's tribe to participate in child custody adjudications. Title 25 U.S.C. § 1914 authorizes the tribe (as well as the child and its parents) to petition a court to invalidate any foster care placement or termination of parental rights under state law "upon a showing that such action violated any provision of sections 101, 102, and 103" of the ICWA. 92 Stat. 3072. See also § 1911(c)(Indian child's tribe may intervene at any point in state court proceedings for foster care placement or termination of parental rights). "Termination of parental rights" is defined in § 1903(1)(ii) as "any action resulting in the termination of the parent-child relationship." [ Footnote 13] The lower court may well have fulfilled the applicable ICWA procedural requirements. But see n 8, supra, and n. 26, infra. It clearly did not, however, comply with or even take cognizance of the substantive mandate of § 1915(a): "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (Emphasis added.) Section 1915(e), moreover, requires the court to maintain records "evidencing the efforts to comply with the order of preference specified in this section." Notwithstanding the Tribe's argument below that § 1915 had been violated, see Brief for Appellant 20-22 and Appellant's Brief in Support of Petition for Rehearing 11-12 in No. 57,659 (Miss. Sup. Ct.), the Mississippi Supreme Court made no reference to it, merely stating in conclusory fashion that the "minimum federal standards" had been met. 511 So. 2d 918, 921 (1987). [ Footnote 14] See, e.g., In re Adoption of Halloway, 732 P.2d 962 (Utah 1986); In re Adoption of Baby Child, 102 N.M. 735, 700 P.2d 198 (App.1985); In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981), cert. denied sub nom. Catholic Social Services of Tucson v. P.C., 455 U.S. 1007 (1982). [ Footnote 15] Because it was unclear whether this case fell within the Court's appellate jurisdiction, we postponed consideration of our jurisdiction to the hearing on the merits. Pursuant to the version of 28 U.S.C. § 1257(2) applicable to this appeal, we have appellate jurisdiction to review a state court judgment "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." It is sufficient that the validity of the state statute be challenged and sustained as applied to a particular set of facts. Volt Information Sciences, Inc. v. Board of Trustees of Stanford University, , -474, n. 4 (1989); Datanke-Walker Milling Co. v. Bondurant, , -290 (1921). In practice, whether such an as-applied challenge comes within our appellate jurisdiction often turns on how that challenge is framed. See Hanson v. Denckla, , (1958); Memphis Natural Gas Co. v. Beeler, , -651 (1942). In the present case, appellants argued below "that the state lower court jurisdiction over these adoptions was preempted by plenary federal legislation." Brief for Appellant in No. 57,659 (Miss.Sup. Ct.), p. 5. Whether this formulation "squarely" challenges the validity of the state adoption statute as applied, see Japan Line, Ltd. v. County of Los Angeles, , -441 (1979), or merely asserts a federal right or immunity, 28 U.S.C. § 1257(3), is a difficult question to which the answer must inevitably be somewhat arbitrary. Since, in the near future, our appellate jurisdiction will extend only to rare cases, see Pub.L. 100-352, 102 Stat. 662, it is also a question of little prospective importance. Rather than attempting to resolve this question, therefore, we think it advisable to assume that the appeal is improper, and to consider by writ of certiorari the important question this case presents. See Spencer v. Texas, , , n. 3 (1967). We therefore dismiss the appeal, treat the papers as a petition for writ of certiorari, 28 U.S.C. § 2103, and grant the petition. (For convenience, we will continue to refer to the parties as appellant and appellees.) [ Footnote 16] "Reservation" is defined quite broadly for purposes of the ICWA. See 25 U.S.C. § 1903(10). There is no dispute that the Choctaw Reservation falls within that definition. Section 1911(a) does not apply "where such jurisdiction is otherwise vested in the State by existing Federal law." This proviso would appear to refer to Pub.L. 280, 67 Stat. 588, as amended, which allows States under certain conditions to assume civil and criminal jurisdiction on the reservations. Title 25 U.S.C. § 1918 permits a tribe in that situation to reassume jurisdiction over child custody proceedings upon petition to the Secretary of the Interior. The State of Mississippi has never asserted jurisdiction over the Choctaw Reservation under Public Law 280. See F. Cohen, Handbook of Federal Indian Law 362-363, and nn. 122-125 (1982); cf. United States v. John, (1978). [ Footnote 17] This conclusion is inescapable from a reading of the entire statute, the main effect of which is to curtail state authority. See especially §§ 1901, 1911-1916, 1918. [ Footnote 18] See also 124 Cong.Rec. 38103 (1978) (letter from Rep. Morris K. Udall to Assistant Attorney General Patricia M. Wald) ("[S]tate courts and agencies and their procedures share a large part of the responsibility" for the crisis threatening "the future and integrity of Indian tribes and Indian families"); House Report, at 19 ("Contributing to this problem has been the failure of State officials, agencies, and procedures to take into account the special problems and circumstances of Indian families and the legitimate interest of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own future"). See also In re Adoption of Halloway, 732 P.2d at 969 (Utah state court "quite frankly might be expected to be more receptive than a tribal court to [Indian child's] placement with non-Indian adoptive parents. Yet this receptivity of the non-Indian forum to non-Indian placement of an Indian child is precisely one of the evils at which the ICWA was aimed"). [ Footnote 19] Some details of the Baby Child case are taken from the briefs in Pino v. District Court, Bernalillo County, O.T.1984, No. 84-248. That appeal was dismissed under this Court's Rule 53, (1985), following the appellant's successful collateral attack, in the case cited in the text, on the judgment from which appeal had been taken. [ Footnote 20] Nor is it inconceivable that a State might apply its law of domicile in such a manner as to render inapplicable § 1911(a) even to a child who had lived several years on the reservation, but was removed from it for the purpose of adoption. Even in the less extreme case, a state law definition of domicile would likely spur the development of an adoption brokerage business. Indian children, whose parents consented (with or without financial inducement) to give them up, could be transported for adoption to States like Mississippi, where the law of domicile permitted the proceedings to take place in state court. [ Footnote 21] For this reason, the general rule that domicile is determined according to the law of the forum, see Restatement (Second) of Conflict of Laws § 13 (1971) (hereinafter Restatement), can have no application here. [ Footnote 22] We note also the likelihood that, had Congress intended a state law definition of domicile, it would have said so. Where Congress did intend that ICWA terms be defined by reference to other than federal law, it stated this explicitly. See § 1903(2) ("extended family member" defined by reference to tribal law or custom); § 1903(6) ("Indian custodian" defined by reference to tribal law or custom and to state law). [ Footnote 23] See also supra at , and n. 3. [ Footnote 24] In large part, the concerns that emerged during the congressional hearings on the ICWA were based on studies showing recurring developmental problems encountered during adolescence by Indian children raised in a white environment. See n. 1, supra. See also 1977 Hearings at 114 (statement of American Academy of Child Psychiatry); S.Rep. No. 95-597, p. 43 (1977) (hereinafter Senate Report). More generally, placements in non-Indian homes were seen as "depriving the child of his or her tribal and cultural heritage." Id. at 45; see also 124 Cong.Rec. 38102-38103 (1978) (remarks of Rep. Lagomarsino). The Senate Report on the ICWA incorporates the testimony in this sense of Louis La Rose, chairman of the Winnebago Tribe, before the American Indian Policy Review Commission: "I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption courts, erase all of their records and send them off to some nebulous family that has a value system that is A-1 in the State of Nebraska and that child reaches 16 or 17, he is a little brown child residing in a white community, and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person, and I think . . . they destroy him." Senate Report at 43. Thus, the conclusion seems justified that, as one state court has put it, "[t]he Act is based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected." In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz., at 204, 635 P.2d at 189. [ Footnote 25] While the statute itself makes clear that Congress intended the ICWA to reach voluntary as well as involuntary removal of Indian children, the same conclusion can also be drawn from the ICWA's legislative history. For example, the House Report contains the following expression of Congress' concern with both aspects of the problem: "One of the effects of our national paternalism has been to so alienate some Indian [parents] from their society that they abandon their children at hospitals or to welfare departments rather than entrust them to the care of relatives in the extended family. Another expression of it is the involuntary, arbitrary, and unwarranted separation of families." House Report, at 12. [ Footnote 26] The Bureau of Indian Affairs pointed out, in issuing nonbinding ICWA guidelines for the state courts, that the terms "residence" and "domicile" "are well defined under existing state law. There is no indication that these state law definitions tend to undermine in any way the purposes of the Act." 44 Fed.Reg. 67584, 67585 (1979). The clear implication is that state law that did tend to undermine the ICWA's purposes could not be taken to express Congress' intent. There is some authority for the proposition that abandonment can effectuate a change in the child's domicile, In re Adoption of Halloway, 732 P.2d at 967, although this may not be the majority rule. See Restatement § 22, Comment e (abandoned child generally retains the domicile of the last-abandoning parent). In any case, as will be seen below, the Supreme Court of Utah declined in the Halloway case to apply Utah abandonment law to defeat the purpose of the ICWA. Similarly, the conclusory statement of the Supreme Court of Mississippi that the twin babies had been "legally abandoned," 511 So. 2d at 921, cannot be determinative of ICWA jurisdiction. There is also another reason for reaching this conclusion. The predicate for the state court's abandonment finding was the parents' consent to termination of their parental rights, recorded before a judge of the state Chancery Court. ICWA § 103(a), 25 U.S.C. § 1913(a), requires, however, that such a consent be recorded before "a judge of a court of competent jurisdiction." See n 7, supra. In the case of reservation-domiciled children, that could be only the tribal court. The children therefore could not be made nondomiciliaries of the reservation through any such state court consent. [ Footnote 27] It appears, in fact, that all Choctaw women give birth off the reservation, because of the lack of appropriate obstetric facilities there. See Juris. Statement 4, n. 2. In most cases, of course, the mother and child return to the reservation after the birth, and this would presumably be sufficient to make the child a reservation domiciliary even under the Mississippi court's theory. Application of the Mississippi domicile rule would, however, permit state authorities to avoid the tribal court's exclusive § 1911(a) jurisdiction by removing a newborn from an allegedly unfit mother while in the hospital, and seeking to terminate her parental rights in state court. [ Footnote 28] We were assured at oral argument that the Choctaw court has the authority under the tribal code to permit adoption by the present adoptive family, should it see fit to do so. Tr. of Oral Arg. 17. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, dissenting. The parents of these twin babies unquestionably expressed their intention to have the state court exercise jurisdiction over them. J.B. gave birth to the twins at a hospital 200 miles from the reservation, even though a closer hospital was available. Both parents gave their written advance consent to the adoption and, when the adoption was later challenged by the Tribe, they reaffirmed their desire that the Holyfields adopt the two children. As the Mississippi Supreme Court found, "the parents went to some efforts to prevent the children from being placed on the reservation, as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d 918, 921 (1987). Indeed, both parents appear before us today, urging that Vivian Holyfield be allowed to retain custody of B.B and G.B. Page 490 U. S. 55 Because J.B.'s domicile is on the reservation and the children are eligible for membership in the Tribe, the Court today closes the state courthouse door to her. I agree with the Court that Congress intended a uniform federal law of domicile for the Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, and that domicile should be defined with reference to the objectives of the congressional scheme. "To ascertain [the term's] meaning, we . . . consider the Congressional history of the Act, the situation with reference to which it was enacted, and the existing judicial precedents, with which Congress may be taken to have been familiar in at least a general way." District of Columbia v. Murphy, , (1941). I cannot agree, however, with the cramped definition the Court gives that term. To preclude parents domiciled on a reservation from deliberately invoking the adoption procedures of state court, the Court gives "domicile" a meaning that Congress could not have intended and distorts the delicate balance between individual rights and group rights recognized by the ICWA. The ICWA was passed in 1978 in response to congressional findings that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies," and that "the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901(4), (5) (emphasis added). The Act is thus primarily addressed to the unjustified removal of Indian children from their families through the application of standards that inadequately recognized the distinct Indian culture. [ Footnote 2/1] Page 490 U. S. 56 The most important provisions of the ICWA are those setting forth minimum standards for the placement of Indian children by state courts and providing procedural safeguards to insure that parental rights are protected. [ Footnote 2/2] The Act provides Page 490 U. S. 57 that any party seeking to effect a foster care placement of, or involuntary termination of parental rights to, an Indian child must establish by stringent standards of proof that efforts have been made to prevent the breakup of the Indian family, and that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. §§ 1912(d), (e), (f). Each party to the proceeding has a right to examine all reports and documents filed with the court, and an indigent parent or custodian has the right to appointment of counsel. §§ 1912(b), (c). In the case of a voluntary termination, the ICWA provides that consent is valid only if given after the terms and consequences of the consent have been fully explained, may be withdrawn at any time up to the final entry of a decree of termination or adoption, and even then may be collaterally attacked on the grounds that it was obtained through fraud or duress. § 1913. Finally, because the Act protects not only the rights of the parents but also the interests of the tribe and the Indian children, the Act sets forth criteria for adoptive, foster care, and preadoptive placements that favor the Indian child's extended family or tribe, and that can be altered by resolution of the tribe. § 1915. The Act gives Indian tribes certain rights, not to restrict the rights of parents of Indian children, but to complement and help effect them. The Indian tribe may petition to transfer an action in state court to the tribal court, but the Indian parent may veto the transfer. § 1911(b). [ Footnote 2/3] The Act Page 490 U. S. 58 provides for a tribal right of notice and intervention in involuntary proceedings, but not in voluntary ones. §§ 1911(c), 1912(a). [ Footnote 2/4] Finally, the tribe may petition the court to set aside a parental termination action upon a showing that the provisions of the ICWA that are designed to protect parents and Indian children have been violated. § 1914. [ Footnote 2/5] While the Act's substantive and procedural provisions effect a major change in state child custody proceedings, its jurisdictional provision is designed primarily to preserve tribal sovereignty over the domestic relations of tribe members and to confirm a developing line of cases which held that the tribe's exclusive jurisdiction could not be defeated by the temporary presence of an Indian child off the reservation. The legislative history indicates that Congress did not intend "to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits." House Report, at 19; Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L.Rev. 413, 416 (1980). The apparent intent of Congress was to overrule such decisions as that in In re Cantrell, 159 Mont. 66, 495 P.2d 179 (1972), in which the State placed an Indian child, who had lived on a Reservation with his mother, in a foster home only three days after he left the Reservation to accompany his father on a trip. Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1129 (1979). Congress specifically approved a series of cases in which the state courts declined jurisdiction over Indian children who were wards of the tribal court, In re Adoption of Buehl, 87 Wash. 2d 649, 555 P.2d 1334 (1976); Wakefield v. Little Light, 276 Md. 333, 347 A.2d 228 (1975), or whose Page 490 U. S. 59 parents were temporarily residing off the reservation, Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich.1973), but exercised jurisdiction over Indian children who had never lived on a reservation and whose Indian parents were not then residing on a reservation, In re Greybull, 23 Ore.App. 674, 543 P.2d 1079 (1975); see House Report, at 21. [ Footnote 2/6] It did not express any disapproval of decisions such as that of the United States Court of Appeals for the Ninth Circuit in United States ex rel. Cobell v. Cobell, 503 F.2d 790 (1974), cert. denied, 421 U.S. 999 (1975), which indicated that a Montana state court could exercise jurisdiction over an Indian child custody dispute because the parents, "by voluntarily invoking the state court's jurisdiction for divorce purposes, . . . clearly submitted the question of their children's custody to the judgment of the Montana state courts." 503 F.2d at 795 (emphasis deleted). The Report of the American Indian Policy Review Commission, an early proponent of the ICWA, makes clear the limited purposes that the term "domicile" was intended to serve: "Domicile is a legal concept that does not depend exclusively on one's physical location at any one given moment in time; rather it is based on the apparent intention of permanent residency. Many Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment Page 490 U. S. 60 and educational opportunities. . . . In these situations, where family ties to the reservation are strong, but the child is temporarily off the reservation, a fairly strong legal argument can be made for tribal court jurisdiction." Report on Federal, State, and Tribal Jurisdiction 86 (Comm. Print 1976). [ Footnote 2/7] Although parents of Indian children are shielded from the exercise of state jurisdiction when they are temporarily off the reservation, the Act also reflects a recognition that allowing the tribe to defeat the parents' deliberate choice of jurisdiction would be conducive neither to the best interests of the child nor to the stability and security of Indian tribes and families. Section 1911(b), providing for the exercise of concurrent jurisdiction by state and tribal courts when the Indian child is not domiciled on the reservation, gives the Indian parents a veto to prevent the transfer of a state court action to tribal court. [ Footnote 2/8] "By allowing the Indian parents to Page 490 U. S. 61 'choose' the forum that will decide whether to sever the parent-child relationship, Congress promotes the security of Indian families by allowing the Indian parents to defend in the court system that most reflects the parents' familial standards." Jones, 21 Ariz.L.Rev. at 1141. As Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians, stated in testimony to the House Subcommittee on Indian Affairs and Public Lands with respect to a different provision: "The ultimate responsibility for child welfare rests with the parents, and we would not support legislation which interfered with that basic relationship." Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess., 62 (1978). [ Footnote 2/9] Page 490 U. S. 62 If J.B. and W.J. had established a domicile off the Reservation, the state courts would have been required to give effect to their choice of jurisdiction; there should not be a different result when the parents have not changed their own domicile, but have expressed an unequivocal intent to establish a domicile for their children off the Reservation. The law of abandonment, as enunciated by the Mississippi Supreme Court in this case, does not defeat, but serves, the purposes of the Act. An abandonment occurs when a parent deserts a child and places the child with another with an intent to relinquish all parental rights and obligations. Restatement (Second) of Conflict of Laws § 22, Comment e (1971) (hereinafter Restatement); In re Adoption of Halloway, 732 P.2d 962, 966 (Utah 1986). If a child is abandoned by his mother, he takes on the domicile of his father; if the child is abandoned by his father, he takes on the domicile of his mother. Restatement § 22, Comment e; 25 Am. Jur.2d Domicil § 69 (1966). If the child is abandoned by both parents, he takes on the domicile of a person other than the parents who stands in loco parentis to him. In re Adoption of Halloway, supra, at 966; In re Estate of Moore, 68 Wash. 2d 792, 796, 415 P.2d 653, 656 (1966); Harlan v. Industrial Accident Comm'n, 194 Cal. 352, 228 P. 654 (1924); Restatement § 22, Comment i; cf. In re Guardianship of D.L.L. and C.L.L., 291 N.W.2d 278, 282 (S.D.1980). [ Footnote 2/10] To be effective, the intent to abandon or the actual physical abandonment must be shown by clear and convincing evidence. In re Adoption of Halloway, supra, at 966; C.S. v. Smith, 483 S.W.2d 790, 793 (Mo. App.1972). [ Footnote 2/11] Page 490 U. S. 63 When an Indian child is temporarily off the reservation, but has not been abandoned to a person off the reservation, the tribe has an interest in exclusive jurisdiction. The ICWA expresses the intent that exclusive tribal jurisdiction is not so frail that it should be defeated as soon as the Indian child steps off the reservation. Similarly, when the child is abandoned by one parent to a person off the reservation, the tribe and the other parent domiciled on the reservation may still have an interest in the exercise of exclusive jurisdiction. That interest is protected by the rule that a child abandoned by one parent takes on the domicile of the other. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act's substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm'n, , (1973); Page 490 U. S. 64 Lee, , -220 (1959); Felix v. Patrick, , (1892). The interpretation of domicile adopted by the Court requires the custodian of an Indian child who is off the reservation to haul the child to a potentially distant tribal court unfamiliar with the child's present living conditions and best interests. Moreover, it renders any custody decision made by a state court forever suspect, susceptible to challenge at any time as void for having been entered in the absence of jurisdiction. [ Footnote 2/12] Finally, it forces parents of Indian children who desire to invoke state court jurisdiction to establish a domicile off the reservation. Only if the custodial parent has the wealth and ability to establish a domicile off the reservation will the parent be able to use the processes of state court. I fail to see how such a requirement serves the paramount congressional purpose of "promot[ing] the stability and security of Indian tribes and families." 25 U.S.C. § 1902. Page 490 U. S. 65 The Court concludes its opinion with the observation that whatever anguish is suffered by the Indian children, their natural parents, and their adoptive parents because of its decision today is a result of their failure to initially follow the provisions of the ICWA. Ante at -54. By holding that parents who are domiciled on the reservation cannot voluntarily avail themselves of the adoption procedures of state court, and that all such proceedings will be void for lack of jurisdiction, however, the Court establishes a rule of law that is virtually certain to ensure that similar anguish will be suffered by other families in the future. Because that result is not mandated by the language of the ICWA and is contrary to its purposes, I respectfully dissent. [ Footnote 2/1] The House Report found that "Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole." H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report). The Senate Report similarly states that the Act was motivated by "reports that an alarmingly high percentage of Indian children were being separated from their natural parents through the actions of nontribal government agencies." S.Rep. No. 95-597, p. 11 (1977). See also 124 Cong.Rec. 12532 (1978) (remarks of Rep. Udall) ("The record developed by the Policy Review Commission, by the Senate Interior Committee in the 94th Congress; and by the Senate Select Committee on Indian Affairs and our own Interior Committee in the 95th Congress has disclosed what almost amounts to a callous raid on Indian children. Indian children are removed from their parents and families by State agencies for the most specious of reasons in proceedings foreign to the Indian parents"); id. at 38102 (remarks of Rep. Udall) ("Studies have revealed that about 25 percent of all Indian children are removed from their homes and placed in some foster care or adoptive home or institution"); id. at 38103 (remarks of Rep. Lagomarsino) ("For Indians generally and tribes in particular, the continued wholesale removal of their children by nontribal government and private agencies constitutes a serious threat to their existence as ongoing, self-governing communities"); Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 1 (1977) ("It appears that for decades Indian parents and their children have been at the mercy of arbitrary or abusive action of local, State, Federal and private agency officials. Unwarranted removal of children from their homes is common in Indian communities"). [ Footnote 2/2] "The purpose of the bill (H.R. 12533), introduced by Mr. Udall et al., is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture and by providing for assistance to Indian tribes and organizations in the operation of child and family service programs." House Report, at 8 (footnote omitted). See also 124 Cong.Rec. 38102 (1978) (remarks of Rep. Udall) ("[The Act] clarifies the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the States. More importantly, it establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with child custody proceedings against them in State agencies or courts"). [ Footnote 2/3] The statute provides in part: "(b) Transfer of proceedings; declination by tribal court" "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe." 25 U.S.C. § 1911. [ Footnote 2/4] See 44 Fed.Reg. 67584, 67586 (1979) ("The Act mandates a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones"). [ Footnote 2/5] Significantly, the tribe cannot set aside a termination of parental rights on the ground that the adoptive placement provisions of § 1915, favoring placement with the tribe, have not been followed. [ Footnote 2/6] None of the cases cited approvingly by Congress involved a deliberate abandonment. In Wakefield v. Little Light, 276 Md. 333, 347 A.2d 228 (1975), the court upheld exclusive tribal jurisdiction where it was clear that there was no abandonment. In Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich.1973), there was no abandonment, the children had lived on the Reservation and were members of the Indian Tribe, and the children's clothing and toys were at a home on the Reservation that continued to be available to them. Finally, in In re Adoption of Buehl, 87 Wash. 2d 649, 555 P.2d 1334 (1976), the child was a ward of the tribal court and an enrolled member of the Tribe. [ Footnote 2/7] In a letter to the House of Representatives, the Department of Justice explained its understanding that the provision was addressed to the involuntary termination of parental rights in tribal members by state agencies unaware of exclusive tribal jurisdiction: "As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280. It is our understanding that this legal principle is often ignored by local welfare organizations and foster homes in cases where they believe Indian children have been neglected, and that S. 1214 is designed to remedy this, and to define Indian rights in such cases." House Report at 35. [ Footnote 2/8] The explanation of this subsection in the House Report reads as follows: "Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected." Id. at 21. In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated: "Section 101(b) should be amended to prohibit clearly the transfer of a child placement proceeding to a tribal court when any parent or child over the age of 12 objects to the transfer." Id. at 32. Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute. [ Footnote 2/9] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra, n. 1, at 158 (Statement on behalf of National Tribal Chairmen's Association) ("We believe the tribe should receive notice in all such cases but where the child is neither a resident nor domiciliary of the reservation intervention should require the consent of the natural parents or the blood relative in whose custody the child has been left by the natural parents. It seems there is a great potential in the provisions of section 101(c) for infringing parental wishes and rights"). [ Footnote 2/10] The authority of a State to exercise jurisdiction over a child in a child custody dispute when the child is physically present in a State and has been abandoned is also recognized by federal statute. See Parental Kidnaping Prevention Act of 1980, 94 Stat. 3569, 28 U.S.C. . § 1738A(c)(2); see also Uniform Child Custody Jurisdiction Act, 9 U.L.A. § 3 (1988). [ Footnote 2/11] The Court suggests that there could be no legally effective abandonment because the parents consented to termination of their parental rights before a judge of the state court, and not a tribal court judge. Ante at , n. 26. That suggestion ignores the findings of the State Supreme Court that the natural parents did virtually everything they could do to abandon the children to persons outside the reservation: "the Indian twins have never resided outside of Harrison County, Mississippi, and were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation, as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d 918, 921 (Miss.1987). In any event, even a consent to adoption that does not meet statutory requirements may be effective to constitute an abandonment and change the minor's domicile. See Wilson v. Pierce, 14 Utah 2d 317, 321, 383 P.2d 925, 927 (1963); H. Clark, Law of Domestic Relations in the United States 633 (1968). [ Footnote 2/12] The facts of In re Adoption of Halloway, 732 P.2d 962 (Utah 1986), which the Court cites approvingly, ante at -53, vividly illustrate the problem. In that case, the mother, a member of an Indian Tribe in New Mexico voluntarily abandoned an Indian child to the custody of the child's maternal aunt off the Reservation with the knowledge that the child would be placed for adoption in Utah. The mother learned of the adoption two weeks after the child left the Reservation, and did not object and, two months later, she executed a consent to adoption. Nevertheless, some two years after the petition for adoption was filed, the Indian Tribe intervened in the proceeding and set aside the adoption. The Tribe argued successfully that, regardless of whether the Indian parent consented to it, the adoption was void because she resided on the Reservation, and thus the tribal court had exclusive jurisdiction. Although the decision in Halloway, and the Court's approving reference to it, may be colored somewhat by the fact that the mother in that case withdrew her consent (a fact which would entitle her to relief even if there were only concurrent jurisdiction, see 25 U.S.C. § 1913(c)), the rule set forth by the majority contains no such limitation. As the Tribe acknowledged at oral argument, any adoption of an Indian child effected through a state court will be susceptible of challenge by the Indian tribe no matter how old the child and how long it has lived with its adoptive parents. Tr. of Oral Arg. 15.

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Mississippi Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)

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Mississippi Choctaw Indians v. Holyfield

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"It's no coincidence that the same attorneys — Gibson Dunn — representing the plaintiffs in this case also have deep ties to fossil fuel interests such as Enbridge and TC Energy (the oil conglomerates responsible for attacking tribal interests through the Line 3 and Dakota Access pipelines, respectively)"

-Lakota Peoples' Law Project

While this underlying connection between the Corporate Law firm of Gibson Dunn and their Big Oil Lobbyists - As well as the connection between Goldwater Institute, Conservative groups, and the three States involved in the case - is not instantly apparent from just a simple reading of Haaland v. Brackeen and the other Primary Documents; but it is still an incredibly significant element to consider for a full understanding of the scope of this topic. If you have not done so yet, the linked podcast delves into this conspiracy into great detail and can actually be credited for uncovering crucial information about it themselves. Afterwards, Consider addressing one or more of the following questions:

1. Powerful forces like this nearly successfully used their backhanded, rhetoric-cloaked strategy of using ICWA to unravel Tribal Soverignty + Strength State Jurisdiction for purposes of Oil/Mineral rights + Greater Conservative Power. What other covert avenues could they use to target tribal sovereignty now that Haaland v. Brackeen ruled against them?

2. Do you believe the attack of policies that address structural racism, like ICWA, is more so because of the policy itself or its legal vunerability?

3. Why do you think these connections are not dicussed by the court in Haaland v. Brackeen at any point?

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