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§4.1 Domicile
  • 1 §4.1.1 Succession to personal property at the time of death

    • 1.1 In Re Jones' Estate.

      1
      192 Iowa 78
      182 N.W. 227
      2
      IN RE JONES' ESTATE.
      ADAMS
      v.
      SMITH ET AL.
      3
      No. 33508.
      4
      Supreme Court of Iowa.
      5
      April 7, 1921.
      7

      Appeal from District Court, Wapello County; C. W. Vermilion, Judge.

      8

      Plaintiff claims that she is the illegitimate child of the decedent, Evan Jones, and as such is his sole heir and entitled to his entire estate. The administrator of the estate is made a party and also the brothers and sisters of the said decedent, who claim that the estate of the decedent descends to them. The court denied the plaintiff the relief sought, and she prosecutes this appeal. Reversed.

      9

      [182 N.W. 227] Jaques & Jaques and Gillies & Daugherty, all of Ottumwa, for appellant.

      10

      J. J. Smith and Roberts & Webber, all of Ottumwa, for appellees.

      11
      FAVILLE, J.
      12

      The decedent, Evan Jones, was a native of Wales. When he was about 33 years of age, he came to America as an immigrant. This was in 1883. He came over on the same ship with the wife and children of one David P. Jones. At that time, David P. Jones was living in Oskaloosa, Iowa, to which place the decedent went. After [182 N.W. 228] the death of David P. Jones, the decedent married his widow, who subsequently died in January, 1914. The decedent, Evan Jones, was a coal miner, an industrious, hard-working, thrifty Welshman, who accumulated a considerable amount of property. In 1896, he was naturalized in the district court of Wapello county, Iowa, and thereafter voted at elections. The reason for his leaving Wales at the time he did was because of bastardy proceedings which had been instituted against him by the mother of the appellant. In 1915, the decedent disposed of his property, which then consisted of two farms and some city real estate. He was advised by his banker to leave the greater part of his money in a bank at Ottumwa until he got to Wales, and did so deposit it. He purchased a draft for about $2,000 and left some $20,000 on deposit in the bank, and also a note and mortgage for collection, and left with the banker the address of a sister in Wales, stating that he intended to live with said sister. He sailed from New York on May 1, 1915, on the ill-fated Lusitania, and was drowned when the boat was sunk by a German submarine on May 7, 1915. The Lusitania was a vessel of the Cunard line, flying the British flag. Thereafter the brothers and sisters of the decedent secured the appointment of an administrator in Wapello county, Iowa. Various proceedings were had, which finally resulted in the trial of the issues in this cause.

      13

      I. The question for our determination in this case is whether or not, under the facts stated, the domicile of the decedent at the time of his death was in Wapello county, Iowa, or in Wales. If his domicile at the time that the Lusitania sank was legally in Wales, then it is conceded by all the parties that, under the laws of the British Empire, the appellant, as his illegitimate child, would have no interest in his estate. On the other hand, if the decedent at said time legally had his domicile in Wapello county, Iowa, then the property passed to the appellant as his sole heir under the laws of this state.

      14

      For the purposes of the present discussion, it may be conceded that the evidence is sufficient to justify a finding that the appellant was the child of the decedent and had been so recognized and declared to such an extent as to satisfy the requirements of Code, § 3385.

      15

      It may also be conceded, for present purposes, that it is established by the evidence in the case that the decedent had by acts and declarations evidenced a purpose to leave his home in Iowa permanently and to return to his native country, Wales, for the purpose of living there the remainder of his life.

      16

      The question of what constitutes domicile has often been passed upon by the courts, but the cases are so unlike in their facts that precedents to aid us in the determination of this precise question are difficult to find.

      17

      In White v. Brown, 29 Fed. Cas. 982, No. 17,538, Mr. Justice Grier well said:

      18

      “There are few subjects presented to courts for their decision which are surrounded with so many practical difficulties as questions of domicile.”

      19

      The words “domicile” and “residence” are not always synonymous at law, nor are they convertible terms. Ludlow v. Szold, 90 Iowa, 175, 57 N. W. 676;Mann v. Taylor, 78 Iowa, 355, 43 N. W. 220;Fitzgerald v. Arel, 63 Iowa, 104, 16 N. W. 712, 18 N. W. 713, 50 Am. Rep. 733;Cohen v. Daniels, 25 Iowa, 88.

      20

      [1] A person may have his residence in one place, while his domicile is in another. In re Titterington's Estate, 130 Iowa, 356, 106 N. W. 761; Fitzgerald v. Arel, supra; Cohen v. Daniels, supra; Love v. Cherry, 24 Iowa, 204.

      21

      A person may have more than one residence at the same time, but can have only one domicile, at least for purposes of succession. Farrow v. Farrow, 162 Iowa, 87, 143 N. W. 856;Savage v. Scott, 45 Iowa, 130; Love v. Cherry, supra.

      22

      [2] It is well settled that every person, under all circumstances and conditions, must have a domicile somewhere. Barhydt v. Cross, 156 Iowa, 271, 136 N. W. 525, 40 L. R. A. (N. S.) 986, Ann. Cas. 1915C, 792; In re Titterington's Estate, supra.

      23

      [3] There are different kinds of domiciles recognized by the law. It is generally held that the subject may be divided into three general classes:

      24

      (1) Domicile of origin.

      25

      (2) Domicile of choice.

      26

      (3) Domicile by operation of law.

      27

      Smith v. Croom, 7 Fla., 81;Louisville & N. R. Co. v. Kimbrough, 115 Ky. 512, 74 S. W. 229.

      28

      The “domicile of origin” of every person is the domicile of his parents at the time of his birth. In Prentiss v. Barton, 19 Fed. Cas. 1276, No. 11384, Circuit Justice Marshall said:

      29

      “By the general laws of the civilized world, the domicile of the parents at the time of birth, or what is termed ‘the domicile of origin,’ constitutes the domicile of an infant, and continues, until abandoned, or until the acquisition of a new domicile, in a different place.”

      30

      The “domicile of choice” is the place which a person has elected and chosen for himself to displace his previous domicile. Warren v. Warren, 73 Fla. 764, 75 South. 35, L. R. A. 1917E, 490;Boyd's Ex'r v. Commonwealth, 149 Ky. 764, 149 S. W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481;Mather v. Cunningham, 105 Me. 326, 74 Atl. 809, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692;Duke v. Duke, 70 N. J. Eq. 135, 62 Atl. 466;Price v. Price, 156 Pa. 617, 27 Atl. 291.

      31

      “Domicile by operation of law” is that  [182 N.W. 229] domicile which the law attributes to a person independent of his own intention or action of residence. This results generally from the domestic relations of husband and wife, or parent and child. Hindorff v. Sovereign Camp of Woodmen of the World, 150 Iowa, 185, 129 N. W. 831;In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546;Jenkins v. Clark, 71 Iowa, 552, 32 N. W. 504.

      32

      In the instant case, we have to deal only with the first two kinds of domicile; that is, domicile of origin and domicile of choice. Applying these general definitions to the facts of this case, the domicile of origin of Evan Jones was in Wales, where he was born, and the domicile of choice was Wapello county, Iowa. The question that concerns us is: Where was his domicile for the purpose of descent of personal property on the 7th day of May, 1915, when the Lusitania was sunk off the western coast of the British Isles?

      33

      The matter of the determination of any person's domicile arises in different ways and is construed by the courts for a variety of different purposes. Apparent inconsistencies occur in the authorities because of the failure to clearly preserve the distinctions to be made by reason of the purpose for which the determination of one's domicile is being legally ascertained. The question frequently arises where it becomes important to determine the domicile for the purpose of taxation, or for the purpose of attachment, or for the levy of execution, or for the exercising of the privilege of voting, or in determining the statute of limitations, or in ascertaining liability for the support of paupers, and perhaps other purposes. Definitions given in regard to the method of ascertaining the domicile for one purpose are not always applicable in ascertaining the domicile for another purpose. Some of the courts have made the broad assertion that a person can have only one domicile. We appear to have so declared in Farrow v. Farrow, 162 Iowa, 87, 143 N. W. 856;Savage v. Scott, 45 Iowa, 130;Love v. Cherry, 24 Iowa, 204. While other courts have declared that a person may have a domicile at one place for one purpose and at another place for another purpose. Smith v. Croom, 7 Fla. 81; Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 340. Confusion has frequently arisen because of a failure to distinguish between domicile and residence.

      34

      [4] Generally speaking, it is an established rule that a person can have but one domicile at the same time for the same purpose. In any event, it is the uniform holding that a person can have only one domicile for the purpose of descent of personal property. White v. Brown, supra; Merrill's Heirs v. Morrissett, 76 Ala. 433; Mather v. Cunningham, 105 Me. 326, 74 Atl. 809, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692;Greene v. Greene, 11 Pick. (Mass.) 410; Isham v. Gibbons, 1 Bradf. Sur. (N. Y.) 69; Somerville v. Somerville, 5 Ves. Jr. 750; Smith v. Croom, supra.

      35

      [5] In the instant case, we are concerned only in the matter of the domicile of the decedent, Evan Jones, as it affects the question of the descent of his personal estate. An examination of the record satisfies us that the evidence is sufficient to amply justify a finding that the said decedent disposed of his property in Wapello county, Iowa, and converted the same into money or securities, and left Wapello county, Iowa, with the present intention of abandoning his domicile there, and without any present intention of returning thereto, and also with the express intention of returning to his native country, Wales, to make his permanent home there. Or, in the language of the books, decedent's intention was to abandon his domicile of choice and return to his domicile of origin. He died in itinere. It is needless for us to cite the vast number of cases announcing the general rule that the acquisition of a new domicile must have been completely perfected, and hence there must have been a concurrence both of the fact of removal and the intent to remain in the new locality before the former domicile can be considered lost. The cases from many of the states are collected in 19 Corpus Juris, p. 423.

      36

      At the outset, it is obvious that under the circumstances of the instant case the domicile of the decedent at the time of his death must in any event be determined by the assumption of a fiction. All will agree that the decedent did not have a domicile on the Lusitania. In order to determine his domicile, then, one of two fictions must be assumed, either that he retained the Iowa domicile until one was acquired in Wales, or that he acquired a domicile in Wales the instant he abandoned the Iowa domicile and started for Wales, with the intent and purpose of residing there. Which one of these fictions shall we assume for the purpose of determining the disposition of his personal property? This question first came before the courts at an early day, long before our present easy and extensive methods of transportation, and at a time before the present ready movement from one country to another. At that time men left Europe for the Western Continent or elsewhere largely for purposes of adventure or in search of an opportunity for the promotion of commerce. It was at a time before the invention of the steamboat and before the era of the oceanic cable. Men left their native land knowing that they would be gone for long periods of time, and that means of communication with their home land were infrequent, difficult, and slow. The traditions of their native country were strong with these men. In the event of death, while absent, they desired that their property should descend in accordance with the laws of the land of their birth.

      37

      [182 N.W. 230] Many such men were adventurers who had the purpose and intent to eventually return to the land of their nativity. There was a large degree of patriotic sentiment connected with the first announcement of the rules of law in the matter of the estates of such men. The idea found expression in the phrase, “Once an Englishman, always an Englishman,” and in the kindred declaration, “A man must intend to become a Frenchman instead of an Englishman.” Moorhouse v. Lord, 10 H. L. C. 272. This popular and partriotic idea was expressed in the familiar lines of Sir Walter Scott:

      38

      “Breathes there the man, with soul so dead,

      39

      Who never to himself hath said,

      40

      ‘This is my own, my native land.'

      41

      Whose heart hath ne'er within him burned,

      42

      As home his footsteps he hath turned,

      43

      From wand'ring on a foreign strand?”

      44

      Many men, especially of English birth, became traders in the American colonies or in India. The Englishman of that day was a firm believer in the law of primogeniture and desired that his estate should descend according to the established law of his native land.

      45

      These reasons, which were, to an extent at least, historical and patriotic, found early expression in the decisions of the courts on the question of domicile. The general rule was declared to be that a domicile is retained until a new domicile has been actually acquired. At an early time, however, an exception was ingrafted upon this rule to the effect that, for the purposes of succession, a party abandoning a domicile of choice with the intent to return to his domicile of origin regains the latter the instant that the former domicile is abandoned.

      46

      It will be observed that this exception involves two elements: First, that the party is seeking to return from a domicile of choice to a domicile of origin; and, second, that the question arises in a case involving succession to an estate. It is apparent that this exception to the general rule grew out of the conditions that we have before suggested and was a recognition of the desire on the part of the English trader in distant lands to have his estate administered according to the laws of the land of his birth.

      47

      One of the earliest cases in the English courts upon this question was Somerville v. Somerville, 5 Ves. Jr. 750, decided in 1801. In that case Lord Somerville had a large estate of lands in Scotland. He also maintained a home in London and spent a large portion of his time in each place. He had been educated in England and lived according to the fashion and style of an Englishman. He had declared that he considered himself an Englishman, and his only reason for spending any portion of his time on his estates in Scotland was because of a promise to his father that he would do so, and accordingly he spent about half of his time in each country. He died at his London residence in 1796. The question arose as to the descent of his personal estate. The Master of the Rolls said:

      48

      “The succession to the personal estate of an intestate is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death; without any regard whatsoever to the place either of the birth or the death, or the situation of the property at that time.”

      49

      He further said:

      50

      “Though a man may have two domiciles for some purposes, he can have only one for purposes of succession.”

      51

      Special stress was laid on the fact that the domicile of origin of the decedent was in Scotland, and the court held that the decedent “never ceased to be a Scotchman.”

      52

      In the same year, 1801, the case of The Indian Chief, 3 C. Rob. 12, was decided by the Admiralty Court. In that case a ship and cargo were seized in the Harbor of Cowes. The owner had been born in America, but had been living for some years in England, carrying on trade, and had also resided in France. Speaking of him, the court said:

      53

      “He came, however, to this country in 1783 and engaged in trade and has resided in this country until 1797. During that time he was undoubtedly to be considered as an English trader, for no position is more established than this, that if a person goes into another country and engages in trade and resides there, he is by the law of nations to be considered as a merchant of that country. * * * It must be held that from the moment he turns his back on the country where he has resided on his way to his own country, he was in the act of resuming his original character and is to be considered as an American. The character that is gained by residence ceases by nonresidence. It is an adventitious character which no longer adheres to him, from the moment that he puts himself in motion bona fide to quit the country sine animo revertendi.”

      54

      The reason for the rule as it is announced by text-writers and courts is well set forth in the foregoing case. The thought is evident that one who becomes domiciled in a foreign country for purposes of trade, and who abandons such domicile for the purpose of returning to his native land, reinvests himself at once with his domicile of origin.

      55

      A little later, in 1812, the question came before the United States Circuit Court in the case of The Ann Green, 1 Fed. Cas. 958, No. 414. Mr. Justice Story rendered the opinion in the case and therein declared:

      56

      “I accede to the doctrine, that fewer circumstances are necessary to constitute domicile in case of native subjects, than of foreigners; and that as native allegiance easily reverts, so the presumption against the party is much heightened by the shipment being made from a port of his native country.”

      57

      [182 N.W. 231] It is significant, in view of the pronouncements later made by this eminent jurist in his work on the “Conflict of Laws,” that at this time he recognized the rule that “native allegiance easily reverts.”

      58

      In 1814, the question came before the Supreme Court of the United States in the case of The Venus, 8 Cranch, 253, 3 L. Ed. 553. Mr. Justice Washington, speaking for the court, cited with approval the case of The Indian Chief, supra, and said:

      59

      “Having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it, until he had thrown it off, either by an actual return to his native country, or to that where he was naturalized, or by commencing his removal, bona fide, and without an intention of returning.”

      60

      In Prentiss v. Barton, supra, decided in 1819, it is said, referring to domicile:

      61

      “As it gives political rights, which are not lost by a mere change of domicile, it is recovered by any manifestation of a disposition to resume the native character; perhaps, by a surrender of a new domicile. In fact, it may be considered rather as suspended, than annihilated.”

      62

      It is apparent that the court gave consideration to the idea that “political rights” entered into a consideration of the matter at least so far as furnishing a reason for the recognition of the rule that the domicile of origin easily reverts. It is the same idea as expressed by the English courts in stablishing the rule of “native allegiance.”

      63

      In 1829, the question was again before the English Court of Chancery, under circumstances more nearly like those of the instant case, in the case of Munroe v. Douglas, 5 Madd. Ch. Rep. 379. In that case it appeared that Munroe was born in Scotland and went to Calcutta, India, to practice his profession as a surgeon. He married and lived in India for some time. He left India in 1815, declaring his purpose to spend the remainder of his days in Scotland. On the way, he stopped in England and took a house, and on account of ill health was unsettled and undetermined whether to continue to reside in England or to spend the remainder of his days in Scotland, or to go to France. He went to Scotland on a visit, and while there died. The question in the case was where the decedent was domiciled at the time of his death. The Vice Chancellor held that a domicile cannot be lost by mere abandonment and that it remains until a subsequent domicile is acquired, “unless the party die in itinere toward an intended domicile.” Under the facts of the case, the court held that the decedent had formed no settled purpose to settle in Scotland at the time of his death, and that therefore his domicile was in India. The court said:

      64

      “A domicile in India is in legal effect a domicile in the province of Canterbury and the law of England, and not the law of Scotland is, therefore, to be applied to his personal property.”

      65

      In 1834, Mr. Justice Story wrote the first edition of his great work on the “Conflict of Laws.” In it he stated (section 47):

      66

      “If a man has acquired a new domicile different from that of his birth, and he removes from it with an intention to resume his native domicile, the latter is reacquired even while he is on his way in itinere, for it reverts from the moment the other is given up.”

      67

      In section 48, he said:

      68

      “A national character acquired in a foreign country by residence changes when the party has left the country animo non revertendi, and is on his return to the country where he had his antecedent domicile. And especially if he be in itinere to his native country with that intent, his native domicile revives while he is yet in transitu, for the native domicile easily reverts. The moment the foreign domicile is abandoned the native domicile is reacquired.”

      69

      This pronouncement of Mr. Justice Story has been frequently referred to by the courts, both English and American, in discussing this question, and has been the basis for decisions, particularly in the English courts.

      70

      In the case of The Goods of Bianchi, 3 Sw. & T. 16, decided in 1862, the English Court of Probate said:

      71

      “The deceased was originally domiciled in Genoa; he then became domiciled in the Brazils and there is no doubt of the fact that he died in itinere as he was returning to Genoa to resume his permanent residence there. Then it may be said that as soon as he had finally abandoned the acquired domicile by setting off on his journey to return to his domicile of origin, the latter revived.”

      72

      From the meager statement in this case, it is apparent that the decedent was a trader and was domiciled in Brazil solely for the purposes of trade.

      73

      The leading and most frequently cited English case is that of Udny v. Udny, L. R. 1 H. L. § 441. In this case the question arose as to the domicile of one Udny, who was born in Scotland and who afterward resided in England and in France. The Lord Chancellor declared:

      74

      “But the domicile of origin is a matter wholly irrespective of any animus on the part of its subject. He acquires a certain status civilis, which subjects him and his property to the municipal jurisdiction of a country which he may never even have seen, and in which he may never reside during the whole course of his life, his domicile being simply determined by that of his father.”

      75

      It is further said:

      76

      “It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicile, [182 N.W. 232] then the exact converse of such a procedure, viz., the intention to abandon the new domicile, and an actual abandonment of it, ought to be equally effective to destroy the new domicile. * * * Why should not the domicile of origin cast on him by no choice of his own, and charged for a time, be the state to which he naturally falls back when his first choice has been abandoned animo et facto, and whilst he is deliberating before he makes a second choice.”

      77

      Lord Chelmsford quotes with approval from Story, in his Conflict of Laws, and says:

      78

      “The meaning of Story, therefore, clearly is, that the abandonment of a subsequently acquired domicile ipso facto restores the domicile of origin. And this doctrine appears to be founded upon principle, if not upon direct authority.”

      79

      And further states:

      80

      “The domicile of origin always remains, as it were, in reserve, to be resorted to in case no other domicile is found to exist.”

      81

      Lord Westbury, in discussing the case, also said:

      82

      “When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. * * * Its acquisition being a thing of choice, it was equally put an end to by choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at the same time his domicile of origin revived.”

      83

      The whole theory of this case and the discussion throughout illustrates the basis of the English rule that the domicile of origin is always retained and that the acquisition of a domicile of choice constitutes a mere suspension, or holding in abeyance of the domicile of origin.

      84

      In King v. Foxwell, 3 Ch. D. 518, the court said:

      85

      “A man may abandon his domicile of choice without acquiring in strictness any new domicile, because his domicile of origin reverts.”

      86

      In White v. Brown, supra, the court submitted the question of domicile to the jury and stated:

      87

      “The domicile of origin easily reverts, and * * * it requires fewer circumstances to constitute domicile in a native subject or citizen than to impress the national character on one who is originally of another character. The acquired domicile, however, must be finally abandoned before the domicile of origin can revert.” (Italics are ours.)

      88

      The foregoing authorities are sufficient to indicate the origin of the exception to the general rule and to illustrate its application by the courts. As early as 1868, the Supreme Court of the State of Connecticut made a clear and important distinction in the application of this rule in the case of First National Bank v. Balcom, 35 Conn. 351. In it the court said:

      89

      “But the principle that a native domicile easily reverts applies only to cases where a native citizen of one country goes to reside in a foreign country, and there acquires a domicile by residence without renouncing his original allegiance. In such cases his native domicile reverts as soon as he begins to execute an intention of returning; that is, from the time that he puts himself in motion bona fide to quit the country sine animo revertendi, because the foreign domicile was merely adventitious and de facto, and prevails only while actual and complete. * * * This principle has reference to a national domicile in its enlarged sense, and grows out of native allegiance or citizenship. It has no application when the question is between a native and acquired domicile, where both are under the same national jurisdiction.” (Italics are ours.)

      90

      The Supreme Court of Connecticut, in this case, evidently fully appreciated the source and origin of the rule as laid down by Story and as announced by the English courts, and the early federal decisions. The basis of the rule was the fact of the native allegiance, which was assumed to revert the instant the foreign domicile had been abandoned.

      91

      It is true that the question of domicile is not to be determined by the question of citizenship, but when we are assuming the fiction that the domicile of origin reverts immediately upon the abandonment of a domicile of choice and assume that fiction, because of native allegiance, to the land of one's birth, then the basis for the fiction and assumption is destroyed when it appears that the party has renounced his native allegiance and has secured citizenship in the land of his domicile of choice. The reason for the rule having failed, the rule fails also.

      92

      In Plant v. Harrison, 36 Misc. Rep. 649, 74 N. Y. Supp. 411, it is said:

      93

      “* * * While a domicile of origin reverts easily upon relinquishment of a domicile of choice, the American decisions have not gone the length of the English authorities in the application of this principle. The English rule that the domicile of origin reverts at once upon the abandonment of the domicile of choice * * * has not been followed in this country, where the rule seems to be that a domicile once acquired continues not only until it is abandoned, but until another is acquired.”

      94

      [182 N.W. 233] It has been held that the English rule only applies when the question arises where the domicile of origin is under one general government and the domicile of choice under another, and that it has no application where the native and the acquired domicile are under the same national jurisdiction. First National Bank v. Balcom, supra. On the other hand, it has also been held that the rule applies to changes from one country to another, or from one state of the Union to another. Denny v. Sumner County, 134 Tenn. 468, 184 S. W. 14, L. R. A. 1917A, 285.

      95

      Appellants cite In re Robitaille, 78 Misc. Rep. 108, 138 N. Y. Supp. 391. The party was an English subject, born in Canada, who removed to New York and there engaged in business. He became naturalized and afterward closed out his business and declared his intention to return to the place of his birth to live the remainder of his life. Before doing so, however, he became insane and a guardian was appointed for him, who carried out his original wishes, and he was taken by the guardian to his destination in Canada, as he had intended, and there died. The question discussed in the case was largely whether after having “put himself in motion to resume his domicile of origin” and having become incompetent, his guardian could carry out his intention and acquire the intended domicile for him by actually transporting him there. The court held that a court of competent jurisdiction could authorize the guardian to change the domicile of an incompetent in a proper case and held, under all of the facts, that the decedent was domiciled in Canada at the time of his death.

      96

      In Rudolph v. Wetherington's Adm'r, 180 Ky. 271, 202 S. W. 652, a resident of Arkansas, having formed and expressed an intention to remove to and become a citizen of Ballard county, Ky., in furtherance of that intention left her home in Arkansas, with her belongings, on or about November 20, 1916, arriving in the city of Paducah, Ky., November 24, where she died November 26, 1916, without ever having been in Ballard county, Ky. The question in the case was whether or not the residence of the decedent was in Ballard county, at the time of her death. Following previous decisions that involved a question of taxation, the Court of Appeals of Kentucky held that, at the time of the death of said decedent, she was not yet a resident of Ballard county, Ky., and that the court of that county was without jurisdiction to grant administration upon her estate.

      97

      In Cooper v. Beers, 143 Ill. 25, 33 N. E. 61, a question of descent was involved. Cordelia D. Cooper was a resident of Bloomington, Ill., when she married Edward T. Cooper, who was a resident of Cincinnati, Ohio. After the marriage, the parties acquired a residence in St. Louis, Mo., which they afterward abandoned, intending to ultimately become residents of either Bloomington or Salem, in the state of Illinois; but, before they had determined which place or had adopted any home at either, Mrs. Cooper died. The question raised was as to her domicile at the time of her death. The court held that the proof failed to show with certainty a fixed and unalterable intention to make Illinois presently the home of the decedent and held:

      98

      “The domicile in Missouri remained the domicile of the Coopers, not only until it was abandoned, but also until a new domicile was acquired by actual residence within another jurisdiction, coupled with the intention of making the last-acquired residence a permanent home.”

      99

      In Burnett v. Meadows' Administrator, 7 B. Mon. (Ky.) 277, 46 Am. Dec. 517, a resident of Virginia, contemplating a removal to Kentucky, died on the route before he got out of the state of Virginia, but after he had, with his family and his property, commenced his intended journey. After his death, the family continued their journey, bringing their property with them and settled in Kentucky. No part of the property was actually in Kentucky at the time of his death. The court said:

      100

      “And had he been domiciled in the state of Virginia at the time of his death, and his property afterwards been brought into this state, no administration on it could have been granted here, as was decided by this court in the case of Embry v. Miller, 1 Marshall, 300 [10 Am. Dec. 732]. Inasmuch, however, as this property was in transitu when he died, and afterwards reached its destination, and as many inconveniences would necessarily result from the absence of power in our county courts to regulate its administration, it should be regarded as being at the time of his death, constructively in this state, under the circumstances here presented, solely however, for the purpose of enabling a county court in this state to grant an administration thereon.”

      101

      In Denny v. Sumner County, supra, the Supreme Court of Tennessee said:

      102

      “Reference may be made parenthetically to an exception recognized in this state to the rule that a domicile once fixed remains until another is actually acquired, arising in event of a change from a domicile of choice to that of origin. Then, if the removal be with the intention to resume his domicile of origin, the latter is re-acquired before it is reached, or even while the person is in itinere, ‘for it reverts from the moment the other is given up.’ Allen v. Thomason, supra, citing Story on Conflict of Laws. The doctrine touching this exception is confined, however, to changes from one country to another, or from one state of the Union to another.” (Italics are ours.)

      103

      In Graham v. Public Administrator, 4 Bradf. Sur. (N. Y.) 127, a woman was en route from Scotland, her domicile of origin, [182 N.W. 234] to Canada, and died on the way in a hospital in New York. It was held that the domicile of origin was retained until a new domicile was actually acquired.

      104

      The foregoing cases illustrate the various holdings of the authorities.

      105

      [6] Perhaps no better case could be found than the instant case to illustrate the effect of the adoption of the exception to the general rule. The decedent in this case had not only acquired a domicile in the United States, but had become a citizen of this country. Under the general rule, if he had abandoned his domicile in Iowa with the intention of acquiring a domicile in Norway or in France, and had been on the illfated Lusitania, it would have been universally held that the domicile in Iowa was still retained. No one will dispute that proposition. But, because, although a citizen of the United States, and residing here for many years, he was en route to Wales, the land of his birth, instead of to some other country, it is contended that he acquired a domicile in that country instantly upon abandoning his domicile in Iowa. If some native of Iowa had done exactly what the decedent did, had disposed of his property with the avowed and declared intention of abandoning his domicile in Iowa and of securing one in Wales, and had accompanied Jones on his trip, and had gone down on the same boat, his estate would have been administered according to the laws of the state of Iowa, because he had not yet acquired a new domicile anywhere else, while Jones' estate, under the theory of the English rule, would be administered according to the laws of Wales, because he happened to have been born in that country. If such a rule is to be applied as between different states of the Union, with our freedom of movement between the various states, it would lead to very startling results. The laws of the states differ greatly in regard to descent. There is no logical reason why the rule should not be applied between different states of the Union as readily as between different governments. Under such a doctrine, if applied between the various states of the Union, if a man had been born in the state of New York, and at an early age had removed to Iowa, and had lived in this commonwealth for many years, had voted here and had become familiar with our laws, and should finally decide to remove to New York to live, and should die in itinere, he would be regarded as domiciled in New York. If, however, under identical circumstances, he intended to remove to Massachusetts, he would be regarded as domiciled in Iowa.

      106

      What good reason is there why “native allegiance” to the state of New York, where he was born, should be the determining factor which would prevail in such instance? One reason that is persuasive why such a rule should not be adopted is that a person who in these days abandons his domicile of origin and acquires a legal domicile in another jurisdiction, presumably, at least, is familiar with the laws of the jurisdiction of the latter domicile, and there is, to say the least, as strong a presumption that he desires his estate to be administered according to the laws of that jurisdiction as of the jurisdiction of the domicile of origin. While there may have been a good reason for the establishment of the English rule at the time and under the conditions under which it was announced, we do not believe that any good reason exists for the recognition of such a rule under the circumstances disclosed in this case. The general rule that a domicile once legally acquired is retained until a new domicile is secured, and that, in the acquisition of such new domicile, both the fact and the intention must concur, it seems to us is a rule of universal and general application and that there is neither good logic nor substantial reason for the application of an exception to that rule in the case where the party is in itinere toward the domicile of origin. In other words, going back to the original proposition, the fiction is assumed generally that any domicile, either of choice or of origin, is retained until a new domicile has been legally acquired. We see no good reason for changing that rule in the one instance where the descent of property is involved and the party is in itinere to the domicile of origin. We believe that the general rule is the better rule, and that the exception laid down by Story and followed by the English courts should not be recognized either as between the states of the union or between this country and a foreign country, under the facts disclosed in this case.

      107

      It therefore follows that the domicile of the decedent was in the state of Iowa until a new domicile had been actually acquired in Wales. No such domicile having been acquired, at the time of his death, his personal estate must be administered according to the laws of Iowa. We think the general rule should be followed, even though the decedent was in itinere to his domicile of origin at the time of his death. We have examined the record and hold that the appellant was legally recognized as the child of the decedent, as required by our statute and the decisions of this court, and is his lawful heir.

      108

      It follows that the judgment of the trial court must be, and the same is, reversed.

      109
      EVANS, C. J., and STEVENS, ARTHUR, and DE GRAFF, JJ., concur.
    • 1.2 White v. Tennant.

      1
      31 W.Va. 790
      2
      White
      v.
      Tennant.
      3
      Supreme Court of Appeals of West Virginia.
      4
      Submitted June 26, 1888.
      Decided December 1, 1888.
      6

      [790] 1. Domicile Change of Residence Intent.

      7

      Where a person entirely abandons his former residence in one State with no intention of resuming it and goes with his family to another residence, which he has rented in another State, with the intention of making the latter his residence for an indefinite time, the latter State is his domicile notwithstanding the fact, that, after he and his family arrive at the new residence, which is only about a half a mile from the State line, they go on the same day on a visit to spend the night with a neighbor in the former State intend-[791]-ing to return in the morning of the next day, but he is detained there by sickness, until he dies, and never does in fact return to his new home. (pp. 796, 797.)

      8

      2. Domicile Conflict of Laws Distribution of Property.

      9

      The laws of the State, in which the domicile of a decedent is at the time of his death, control and govern the distribution of his personal estate, although he may die in another State. (p. 797.)

      10

      P. II Keek and J. M. Pagans for appellants.

      11

      Berkshire, Sturgiss & Baker and A. F. Haymond for ap-peliees.

      12
      Snyder, Judge:
      13

      This is a suit brought December, 1886, in the Circuit Court of Monongalia county by William L. White and others against Emrod Tennant, administrator of Michael White deceased and Lucinda White, the widow of said Michael White, to set aside the settlement and distribution made by the administrator of the personal estate of said decedent, and to have the same settled and distributed according to the laws of the State of Pennsylvania, which State it is claimed was the domicile of said decedent at the time of his death. The plaintiffs are the brothers and sisters of the decedent, who died in this State intestate. On October 28, 1887, the court entered a decree dismissing the plaintiffs' bill, and they have appealed.

      14

      The sole question presented for our determination is, whether the said Michael White at the time of his death, in May, 1885, had his legal domicile in this State or in the State of Pennsylvania. It is admitted to be the settled law, that the law of the State, in which the decedent had his domicile at the time of his death, will control the succession and distribution of his personal estate. Before referring to the facts proved in this cause, we shall endeavor to determine what in law is meant by " domicile."

      15

      Dr. Wharton says:" ' Domicile ' is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the non-existence of any intention to make a domicile elsewhere." Whart. Conn. Law §21. "'Domicile' is that place or country, either (1) in [792] which a person in fact resides with an intention of residence, animus manendi; or (2) in which, having so resided, he continues actually to reside, though no longer retaining the intention of residence, animus manendi; or (3) with regard to which, having so resided there, he retains the intention of residence,-animus manendi, though he in fact no longer resides there." Dicey Dom. 44. Two things must concur to establish domicile, the fact of residence, and the intention of remaining. These two must exist, or must have existed, in combination. There must have been an actual residence. The character of the residence is of no importance; and, if domicile has once existed, mere temporary absence will not destroy it, however long continued. Munro v. Munro, 7 01. & Fin. 842. The original domicile continues until it is fairly changed for another. It is a legal maxim that every person must have a domicile somewhere; and he can have but one at a time for the same purpose. From this it follows that one can not be lost or extinguished until another is acquired. Baird v. Byrne, 3 Wall. Jr. 1. When one domicile is definitely abandoned and a new one selected and entered upon, length of time is not important; one day will be sufficient, provided the animus exists. Even when the point of destination is not reached, domicile may shift in itinere, if the abandonment of the old domicile and the setting out for the new are plainly shown. Munroe v. Douglass, 5 Madd. 405. Thus a constructive residence seems to be sufficient to give domicile, though an actual residence may not have begun. Whart. Conn. Law, § 58. A change of domicile does not depend so much upon the intention to remain in the new place for a definite or indefinite period as upon its being without an intention to return. An intention to return however at a remote or indefinite period to the former place of actual residence will not control, if the other facts, which constitute domicile, all give the new residence the character of a permanent home or place of abode. The intention and actual fact of residence must concur, where such residence is not in its nature temporary. Hallet v. Bassett, 100 Mass. 170, 171; Long v. Ryan, 30 Gratt, 718. In Bradley v. Lowery, 1 Speer Eq. 1, it is held, that " change of domicile is consummated when one leaves the [793] State where he has hitherto resided, avowing his intention not to return, and enters another State intending to permanently settle there." A domicile once acquired remains until a new one is acquired elsewhere, facto et animo. Story Conn. Law, § 47; Hart v. Lindsey, 17 N. II. 235. Where a person removes from one State to another and establishes a fixed residence in the latter, it will become his domicile, although there may be a floating intention to return to his former place of abode at some future period. Ringgold v. Barley, 5 Md. 186." If a man intending to remove with his family visits the place of removal beforehand, to make arrangements, or even sleeps there occasionally for convenience and then transfers his family, the change of domicile takes effect from the time of removing with the family; but if he has definitely changed his residence and taken up his abode permanently in a new place, the fact, that his family remains behind, until lie can remove them conveniently, and that he visits them occasionally, will not prevent the new place being his domicile." Guier v. O'Daniel, Amer. Lead. Cas. (753,) 903; Cambridge v. Charlestown, 13 Mass. 501.

      16

      The material facts in the case at bar are as follows: Joseph S. White, the father of the plaintiffs and Michael White, died intestate in Monongalia county seized of a tract of about 240 acres of land, of which about forty acres lay in Greene county, Pa., the whole constituting but one tract or farm. The mansion-house in which the father resided was located on the West Virginia side of the farm, and there was also a dwelling-house generally occupied by tenants on the Pennsylvania part of the farm. After the death of the father, his widow and the plaintiffs remained together and occupied the home-farm, residing in the mansion-house in West Virginia. Michael White several years before his death married the defendant, Lucinda White, a daughter of the defendant, Em rod Tennant, and about that time purchased a farm on Day's run, in Monongalia county, some fifteen miles from the home-place, to which he moved, and at which he and his wife resided. It is conceded, that Michael was born and had his domicile in West Virginia all his life, until about April 1, 1885.

      17

      [794] In the winter of 1884-85, Michael sold his Day's run farm, and then rented or made an arrangement with his mother and brothers and sisters, the plaintiffs, to occupy the forty acres of the home-farm, in which he still had an undivided interest, and to live in the house on said forty acres in Greene county, Pa. He was to give to the purchaser the possession of Ms Day's run farm on April 1, 1885, and to have possession of the Pennsylvania house and forty acres at the same time. In March, 1885, he moved part of his household-goods into the Pennsylvania house, and put them into one of the rooms by permission of the tenant, who then occupied it, and who did not vacate it until between the middle and last of March, 1885. About the same time he moved an organ and some grain to the old homestead, until he could get possession of the Pennsylvania house.

      18

      On the morning of April 2, 1885, he finally left the Day's run house with the remainder of his goods and his wife, he having no children, with the declared intent and purpose of making the Pennsylvania house his home that evening. He with his team, wife and goods and live-stock passed into the State of Pennsylvania several miles before he reached said house and continued in said State thence to said Pennsylvania house, where they arrived that evening about sundown, and then and there unloaded their goods and put them in the house, setting up one bed and turning the fowls and other live-stock loose at the house.

      19

      The said house had been vacated for several days. It was a damp, cool day, and the house was found to be damp and uncomfortable. The wife was complaining of feeling unwell, and in consequence of that fact and the uncomfortable condition of the house, on the invitation of her brother-inlaw and others of the family who then resided at the mansion-house, but a short distance therefrom, the said Michael and. his wife went to the mansion-house in West Virginia to stay all night and return in the morning. Before leaving the Pennsylvania house the wife had gotten out of the buggy at the house, and the said Michael after putting into it his household-goods locked the door and took the key with him. On the following morning, the wife still feeling unwell, and the brother who was to return the team, which [795] they had used in moving their goods, having taken sick, the wife after going to the Pennsylvania house to milk returned to the mansion-house, and Michael took the team hack to Day's run.

      20

      On the return of Michael from this trip he found his wife so sick with typhoid fever, that it was impossible to move her, in consequence of which both he and she remained at the mansion-house, she because she was unable to get away, and he to wait on her, but he went daily over to the Pennsylvania house to look after it, and to feed his stock there, calling it his " home." In ten or fifteen days, and before the wife had sufficiently recovered to leave her bed, Michael was attacked with typhoid fever, and about ten days thereafter died intestate in the same house. The wife recovered, and the defendant, Emrod Tennant, her father, administered on the estate of Michael, taking out letters of administration in Monongalia county, W. Ya. The administrator settled his accounts before a commissioner of said county, and distributed the estate according to the laws of West Virginia; that is, by paying over to the widow the whole personal estate remaining after the payment of the debts of the decedent. It is admitted, that, if the distribution had been according to the laws of the State of Pennsylvania, the wife would have been entitled to the one half only of said estate, and the plaintiffs would have been entitled to the other half.

      21

      As the law of the State, in which the decedent had his domicile at the time of his death, must govern the distribution of his estate, the important question is, where, according to the foregoing facts, was the domicile of Michael at the time of his death? It is unquestionable, that prior to the 2d day of April, 1885, his domicile was and had been in the State of West Virginia. Did he on that day or at any subsequent day change his domicile to the State of Pennsylvania? According to the authorities hereinbefore cited, if it is shown, that a person has entirely abandoned his former domicile in one State with the intention of making his home at a fixed place in another State with no intention of returning to his former domicile and then establishes a residence in the new place for any period of time, however brief, that will be in [796] law a change of domicile, and the latter will remain his domicile until changed in like manner.

      22

      The facts in this case conclusively prove, that Michael White, the decedent, abandoned his residence in West Virginia with the intention and purpose not only of not returning to it, but for the expressed purpose of making a fixed place in the State of Pennsylvania his home for an indefinite time. This fact is shown by all the circumstances as well as by his declarations and acts. He had sold his residence in West Virginia and surrendered its possession to the purchaser, and thereby made it impossible for him to return to it and make it his home. He rented a dwelling in Pennsylvania, for which he had no use except to live in and make it his home. In addition to all this, he had moved a part of his household goods into this house, and then, on the 2d of April, 1885, he with his family and the remainder of his goods and stock finally left his former home and the State of West Virginia, and moved into the State of Pennsylvania to his house In that State, and there put his goods in the house, and turned his stock loose on the premises. At the time he left his former home on that morning, and while he was on the way to his new home, his declared purpose and intention were to make that his home from that very day, and to occupy it that night. He arrived in Pennsylvania and at his new home with that intention; and it was only after he arrived there and for reasons not before known, which had no effect to change his purpose of making that his future home, that he failed to remain there from that time. There was no change in his purpose, except that after he arrived at his new home and unloaded and left his property there, he concluded on account of the condition of the house and the illness of his wife, that it would be better to go with his wife to remain one night with his relatives and return the next morning.

      23

      When he left his former home without any intention of returning and in pursuance of that intention did in fact move with his family and effects to his new home with the intention of making it his residence for an indefinite time, it is my opinion, that, when he and his wife arrived at his new home, it became eo instanti his domicile, and that his leaving there under the circumstances with the intention of returning the [797] next day did not change the fact. The concurrence of his intention to make the Pennsylvania house his permanent residence with the fact, that he had actually abandoned his former residence and moved to and put his goods in the new one, made the latter his domicile. According to the authorities hereinbefore referred to he must of necessity have had a domicile somewhere. If he did not have one in Pennsylvania, where did he have one? The fact, that he left the Pennsylvania house, after he had moved to it with his family and goods, to spend the night, did not revive his domicile at his former residence on Day's run, because he had sold that, and left it without any purpose of returning there. By going from his new home to the house of his relatives to spend the night he certainly did not make the house thus visited his domicile; therefore, unless the, Pennsylvania house was on the evening of April 2, 1885, his domicile, he was in the anomalous position of being without a domicile anywhere, which, as we have seen, is a legal impossibility; and, that house having become his domicile, there is nothing in this case to show, that he ever did in fact change or intend to change it or to establish a domicile elsewhere.

      24

      It follows, therefore, that that house remained his domicile up to and at the time of his death; and, that house being in the State of Pennsylvania, the laws of that State must control the distribution of his personal estate notwithstanding the fact, that he died in State of West Virginia.

      25

      For these reasons the decree of the Circuit Court must be reversed, and the cause must be remanded to that court to be there further proceeded in according to the principles announced in this opinion and the rules of courts of equity.

      26

      Reversed. Remanded.

  • 2 §4.1.2 Adoption

    §4.1.2 Adoption

    • 2.1 Mississippi Band of Choctaw Indians v. Holyfield

      1
      490 U.S. 30 (1989)
      2
      MISSISSIPPI BAND OF CHOCTAW INDIANS
      v.
      HOLYFIELD ET AL.
      3
      No. 87-980.
      4

      Supreme Court of United States.

      5
      Argued January 11, 1989
      6
      Decided April 3, 1989
      7

      APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

      8

      [31] Edwin R. Smith argued the cause and filed briefs for appellant.

      9

      [32] Edward O. Miller argued the cause and filed a brief for appellees.[1]

      10
      JUSTICE BRENNAN delivered the opinion of the Court.
      11

      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.

      12
      I
      13
      A
      14

      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., [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,[2] as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings.

      15

      Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the [34] ICWA.[3] 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:

      16
      "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.
      17

      See also id., at 62.[4] Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:

      18
      "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 [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.[5]
      19

      The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found:

      20
      "(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . ;
      21
      "(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
      22
      "(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 [36] and the cultural and social standards prevailing in Indian communities and families." 25 U. S. C. § 1901.
      23

      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.[6] 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.

      24

      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 [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.

      25

      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.[7]

      26
      B
      27

      This case involves the status of twin babies, known for our purposes as B. B. and G. B., who were born out of wedlock on December 29, 1985. Their mother, J. B., and father, W. J., were both enrolled members of appellant Mississippi Band of Choctaw Indians (Tribe), and were residents and domiciliaries of the Choctaw Reservation in Neshoba County, Mississippi. J. B. gave birth to the twins in Gulfport, Harrison County, Mississippi, some 200 miles from the reservation. On January 10, 1986, J. B. executed a consent-to-adoption form before the Chancery Court of Harrison [38] County. Record 8-10.[8] W. J. signed a similar form.[9] On January 16, appellees Orrey and Vivian Holyfield[10] 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.[11] Despite the court's apparent awareness of the ICWA,[12] the adoption decree contained no reference to it, nor to the infants' Indian background.

      28

      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.[13] On July 14, 1986, the court overruled the motion, [39] holding that the Tribe "never obtained exclusive jurisdiction over the children involved herein . . . ." The court's one-page opinion relied on two facts in reaching that conclusion. The court noted first that the twins' mother "went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation" and that the parents had promptly arranged for the adoption by the Holyfields. Second, the court stated: "At no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation." Id., at 78.

      29

      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:

      30
      "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.
      31

      [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.[14]

      32

      [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,[15] we granted plenary review. 486 U. S. 1021 (1988).[16] We now reverse.

      33
      [42] II
      34

      Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA. Indeed, some of the ICWA's jurisdictional provisions have a strong basis in pre-ICWA case law in the federal and state courts. See, e. g., Fisher v. District Court, Sixth Judicial District of Montana, 424 U. S. 382 (1976) (per curiam) (tribal court had exclusive jurisdiction over adoption proceeding where all parties were tribal members and reservation residents); Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich. 1973) (tribal court had exclusive jurisdiction over custody of Indian children found to have been domiciled on reservation); Wakefield v. Little Light, 276 Md. 333, 347 A. 2d 228 (1975) (same); In re Adoption of Buehl, 87 Wash. 2d 649, 555 P. 2d 1334 (1976) (state court lacked jurisdiction over custody of Indian children placed in off-reservation foster care by tribal court order); see also In re Lelah-puc-ka-chee, 98 F. 429 (ND Iowa 1899) (state court lacked jurisdiction to appoint guardian for Indian child living on reservation). In enacting the ICWA Congress confirmed that, in child custody proceedings involving Indian children domiciled on the reservation, tribal jurisdiction was exclusive as to the States.

      35

      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.[17]

      36
      [43] A
      37

      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. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 566 (3d ed. 1988); cf. Reconstruction Finance Corporation v. Beaver County, 328 U. S. 204, 210 (1946), Congress sometimes intends that a statutory term be given content by the application of state law. De Sylva v. Ballentine, 351 U. S. 570, 580 (1956); see also Beaver County, supra; Helvering v. Stuart, 317 U. S. 154, 161-162 (1942). We start, however, with the general assumption that "in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U. S. 101, 104 (1943); NLRB v. Natural Gas Utility Dist. of Hawkins County, 402 U. S. 600, 603 (1971); Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 119 (1983). One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. Jerome, supra, at 104; Dickerson, supra, at 119-120; United States v. Pelzer, 312 U. S. 399, 402-403 (1941). Accordingly, the cases in which we have [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 209 (statute permitting States to apply their diverse local tax laws to real property of certain Government corporations). A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." Jerome, supra, at 104; Dickerson, supra, at 119-120; Pelzer, 312 U. S., at 402-403. For this reason, "we look to the purpose of the statute to ascertain what is intended." Id., at 403.

      38

      In NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944), we rejected an argument that the term "employee" as used in the Wagner Act should be defined by state law. We explained our conclusion as follows:

      39
      "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 123.
      40

      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.

      41

      First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its [45] enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities.[18] 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").[19] 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.

      42

      Second, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of domicile. An example will illustrate. In a case quite similar to this one, the New Mexico state courts found exclusive jurisdiction in the tribal court pursuant to § 1911(a), [46] because the illegitimate child took the reservation domicile of its mother at birth — notwithstanding that the child was placed in the custody of adoptive parents 2 days after its off-reservation birth and the mother executed a consent to adoption 10 days later. In re Adoption of Baby Child, 102 N. M. 735, 737-738, 700 P. 2d 198, 200-201 (App. 1985).[20] 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.[21] 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.[22]

      43

      [47] We therefore think it beyond dispute that Congress intended a uniform federal law of domicile for the ICWA.[23]

      44
      B
      45

      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.

      46

      We have often stated that in the absence of a statutory definition we "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1, 9 (1962); Russello v. United States, 464 U. S. 16, 21 (1983). We do so, of course, in the light of the " `object and policy' " of the statute. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956), quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849). We therefore look both to the generally accepted meaning of the term "domicile" and to the purpose of the statute.

      47

      That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general state-law principles to determine "the ordinary meaning of the words used." Well-settled state law can inform our understanding of what Congress had in mind when it employed a term it did not define. Accordingly, we find it helpful to borrow established common-law principles of domicile [48] to the extent that they are not inconsistent with the objectives of the congressional scheme.

      48

      "Domicile" is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. See generally Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 17-38 (4th ed. 1986); R. Weintraub, Commentary on the Conflict of Laws 12-24 (2d ed. 1980). "Domicile" is not necessarily synonymous with "residence," Perri v. Kisselbach, 34 N. J. 84, 87, 167 A. 2d 377, 379 (1961), and one can reside in one place but be domiciled in another, District of Columbia v. Murphy, 314 U. S. 441 (1941); In re Estate of Jones, 192 Iowa 78, 80, 182 N. W. 227, 228 (1921). For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there. Texas v. Florida, 306 U. S. 398, 424 (1939). One acquires a "domicile of origin" at birth, and that domicile continues until a new one (a "domicile of choice") is acquired. Jones, supra, at 81, 182 N. W., at 228; In re Estate of Moore, 68 Wash. 2d 792, 796, 415 P. 2d 653, 656 (1966). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Yarborough v. Yarborough, 290 U. S. 202, 211 (1933). In the case of an illegitimate child, that has traditionally meant the domicile of its mother. Kowalski v. Wojtkowski, 19 N. J. 247, 258, 116 A. 2d 6, 12 (1955); Moore, supra, at 796, 415 P. 2d, at 656; Restatement § 14(2), § 22, Comment c; 25 Am. Jur. 2d, Domicil § 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicil of origin will be in a place where the child has never been." Restatement § 14, Comment b.

      49

      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 [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.

      50

      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").[24] 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.

      51

      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 [50] themselves of such placements outside their culture.[25] 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.[26]

      52

      [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.[27] 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. [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.[28] The Supreme Court of Utah expressed this well in its scholarly and sensitive opinion in what has become a leading case on the ICWA:

      53
      "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 [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).
      54

      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.

      55
      III
      56

      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.

      57

      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 [54A] 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.[29] Rather, "we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy." Ibid.

      58

      The judgment of the Supreme Court of Mississippi is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

      59

      It is so ordered.

      60
      [54B] JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, dissenting.
      61

      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, Appellee Vivian Holyfield appears before us today, urging that she be allowed to retain custody of B. B. and G. B.

      62

      [55] Because J. B.'s domicile is on the reservation and the children are eligible for membership in the Tribe, the Court today closes the state courthouse door to her. I agree with the Court that Congress intended a uniform federal law of domicile for the Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U. S. C. §§ 1901-1963, and that domicile should be defined with reference to the objectives of the congressional scheme. "To ascertain [the term's] meaning we. . . consider the Congressional history of the Act, the situation with reference to which it was enacted, and the existing judicial precedents, with which Congress may be taken to have been familiar in at least a general way." District of Columbia v. Murphy, 314 U. S. 441, 449 (1941). I cannot agree, however, with the cramped definition the Court gives that term. To preclude parents domiciled on a reservation from deliberately invoking the adoption procedures of state court, the Court gives "domicile" a meaning that Congress could not have intended and distorts the delicate balance between individual rights and group rights recognized by the ICWA.

      63

      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.[30]

      64

      [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.[31] The Act provides [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.

      65

      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).[32] The Act [58] provides for a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones. §§ 1911(c), 1912(a).[33] 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.[34]

      66

      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 [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.[35] 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).

      67

      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:

      68
      "Domicile is a legal concept that does not depend exclusively on one's physical location at any one given moment in time, rather it is based on the apparent intention of permanent residency. Many Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment [60] and educational opportunities. . . . In these situations, where family ties to the reservation are strong, but the child is temporarily off the reservation, a fairly strong legal argument can be made for tribal court jurisdiction." Report on Federal, State, and Tribal Jurisdiction 86 (Comm. Print 1976).[36]
      69

      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.[37] "By allowing the Indian parents to [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:

      70
      "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).[38]
      71

      [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).[39] 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).[40]

      72

      [63] When an Indian child is temporarily off the reservation, but has not been abandoned to a person off the reservation, the tribe has an interest in exclusive jurisdiction. The ICWA expresses the intent that exclusive tribal jurisdiction is not so frail that it should be defeated as soon as the Indian child steps off the reservation. Similarly, when the child is abandoned by one parent to a person off the reservation, the tribe and the other parent domiciled on the reservation may still have an interest in the exercise of exclusive jurisdiction. That interest is protected by the rule that a child abandoned by one parent takes on the domicile of the other. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act's substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 173 (1973); Williams v. [64] Lee, 358 U. S. 217, 219-220 (1959); Felix v. Patrick, 145 U. S. 317, 332 (1892).

      73

      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.[41] 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.

      74

      [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 53-54. By holding that parents who are domiciled on the reservation cannot voluntarily avail themselves of the adoption procedures of state court and that all such proceedings will be void for lack of jurisdiction, however, the Court establishes a rule of law that is virtually certain to ensure that similar anguish will be suffered by other families in the future. Because that result is not mandated by the language of the ICWA and is contrary to its purposes, I respectfully dissent.

      75

      [1] Briefs of amici curiae urging reversal were filed for the Association of American Indian Affairs, Inc., et al. by Bertram E. Hirsch and Jack F. Trope; for the Menominee Indian Tribe of Wisconsin by Kathryn L. Tierney; for the Navajo Nation by Donald R. Wharton; and for the Swinomish Tribal Community et al. by Jeanette Wolfley, Craig J. Dorsay, and Richard Dauphinais.

      76

      [2]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:

      77

      "[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 . . . .

      78

      .....

      79

      "[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.

      80

      [3] 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).

      81

      [4] 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 . . .").

      82

      [5] 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).

      83

      [6]Section 1911(a) reads in full:

      84

      "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."

      85

      [7]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).

      86

      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.

      87

      [8] 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.

      88

      [9] 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.

      89

      [10] Appellee Orrey Holyfield died during the pendency of this appeal.

      90

      [11] 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.

      91

      [12] 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.

      92

      [13] 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."

      93

      [14] The lower court may well have fulfilled the applicable ICWA procedural requirements. But see n. 8, supra, and n. 26, infra. It clearly did not, however, comply with or even take cognizance of the substantive mandate of § 1915(a): "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (Emphasis added.) Section 1915(e), moreover, requires the court to maintain records "evidencing the efforts to comply with the order of preference specified in this section." Notwithstanding the Tribe's argument below that § 1915 had been violated, see Brief for Appellant 20-22 and Appellant's Brief in Support of Petition for Rehearing 11-12 in No. 57,659 (Miss. Sup. Ct.), the Mississippi Supreme Court made no reference to it, merely stating in conclusory fashion that the "minimum federal standards" had been met. 511 So. 2d, at 921.

      94

      [15] 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).

      95

      [16] Because it was unclear whether this case fell within the Court's appellate jurisdiction, we postponed consideration of our jurisdiction to the hearing on the merits. Pursuant to the version of 28 U. S. C. § 1257(2) applicable to this appeal, we have appellate jurisdiction to review a state-court judgment "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." It is sufficient that the validity of the state statute be challenged and sustained as applied to a particular set of facts. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U. S. 468, 473-474, n. 4 (1989); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290 (1921). In practice, whether such an as-applied challenge comes within our appellate jurisdiction often turns on how that challenge is framed. See Hanson v. Denckla, 357 U. S. 235, 244 (1958); Memphis Natural Gas Co. v. Beeler,315 U. S. 649, 650-651 (1942).

      96

      In the present case appellants argued below "that the state lower court jurisdiction over these adoptions was preempted by plenary federal legislation." Brief for Appellant in No. 57,659 (Miss. Sup. Ct.), p. 5. Whether this formulation "squarely" challenges the validity of the state adoption statute as applied, see Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 440-441 (1979), or merely asserts a federal right or immunity, 28 U. S. C. § 1257(3), is a difficult question to which the answer must inevitably be somewhat arbitrary. Since in the near future our appellate jurisdiction will extend only to rare cases, see Pub. L. 100-352, 102 Stat. 662, it is also a question of little prospective importance. Rather than attempting to resolve this question, therefore, we think it advisable to assume that the appeal is improper and to consider by writ of certiorari the important question this case presents. See Spencer v. Texas, 385 U. S. 554, 557, n. 3 (1967). We therefore dismiss the appeal, treat the papers as a petition for writ of certiorari, 28 U. S. C. § 2103, and grant the petition. (For convenience, we will continue to refer to the parties as appellant and appellees.)

      97

      [17]"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.

      98

      Section 1911(a) does not apply "where such jurisdiction is otherwise vested in the State by existing Federal law." This proviso would appear to refer to Pub. L. 280, 67 Stat. 588, as amended, which allows States under certain conditions to assume civil and criminal jurisdiction on the reservations. Title 25 U. S. C. § 1918 permits a tribe in that situation to reassume jurisdiction over child custody proceedings upon petition to the Secretary of the Interior. The State of Mississippi has never asserted jurisdiction over the Choctaw Reservation under Public Law 280. See F. Cohen, Handbook of Federal Indian Law 362-363, and nn. 122-125 (1982); cf. United States v. John, 437 U. S. 634 (1978).

      99

      [18] 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.

      100

      [19] 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").

      101

      [20] Some details of the Baby Child case are taken from the briefs in Pino v. District Court, Bernalillo County, O. T. 1984, No. 84-248. That appeal was dismissed under this Court's Rule 53, 472 U. S. 1001 (1985), following the appellant's successful collateral attack, in the case cited in the text, on the judgment from which appeal had been taken.

      102

      [21] 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.

      103

      [22] 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.

      104

      [23] 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).

      105

      [24] See also supra, at 34, and n. 3.

      106

      [25] 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:

      107

      "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.

      108

      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.

      109

      [26]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:

      110

      "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.

      111

      [27] 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 Hallowaycase 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.

      112

      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.

      113

      [28] 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.

      114

      [29] 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.

      115

      [30] 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").

      116

      [31] "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").

      117

      [32]The statute provides in part:

      118

      "(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.

      119

      [33] 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").

      120

      [34] 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.

      121

      [35] 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.

      122

      [36]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:

      123

      "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.

      124

      [37]The explanation of this subsection in the House Report reads as follows:

      125

      "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.

      126

      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:

      127

      "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.

      128

      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.

      129

      [38] 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").

      130

      [39] 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).

      131

      [40] 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 51, n. 26. That suggestion ignores the findings of the State Supreme Court that the natural parents did virtually everything they could do to abandon the children to persons outside the reservation: "[T]he Indian twins have never resided outside of Harrison County, Mississippi, and were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d 918, 921 (1987). In any event, even a consent to adoption that does not meet statutory requirements may be effective to constitute an abandonment and change the minor's domicile. See Wilson v. Pierce, 14 Utah 2d 317, 321, 383 P. 2d 925, 927 (1963); H. Clark, Law of Domestic Relations in the United States 633 (1968).

      132

      [41] The facts of In re Adoption of Halloway, 732 P. 2d 962 (Utah 1986), which the Court cites approvingly, ante, at 52-53, vividly illustrate the problem. In that case, the mother, a member of an Indian Tribe in New Mexico, voluntarily abandoned an Indian child to the custody of the child's maternal aunt off the reservation with the knowledge that the child would be placed for adoption in Utah. The mother learned of the adoption two weeks after the child left the reservation and did not object and, two months later, she executed a consent to adoption. Nevertheless, some two years after the petition for adoption was filed, the Indian Tribe intervened in the proceeding and set aside the adoption. The Tribe argued successfully that regardless of whether the Indian parent consented to it, the adoption was void because she resided on the reservation and thus the tribal court had exclusive jurisdiction. Although the decision in Halloway, and the Court's approving reference to it, may be colored somewhat by the fact that the mother in that case withdrew her consent (a fact which would entitle her to relief even if there were only concurrent jurisdiction, see 25 U. S. C. § 1913(c)), the rule set forth by the majority contains no such limitation. As the Tribe acknowledged at oral argument, any adoption of an Indian child effected through a state court will be susceptible of challenge by the Indian tribe no matter how old the child and how long it has lived with its adoptive parents. Tr. of Oral Arg. 15.

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