This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 53

IN THE

SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Adoption of B.B.,

a person under eighteen years of age

R.K.B. and K.A.B.,

Appellants,

v.

E.J.T.,

Appellee.

No. 20180612

Heard on June 19, 2019

Supplemental Briefing Submitted on July 9, 2019

Filed on July 28, 2020

On Direct Appeal

Third District, Salt Lake

The Honorable Keith A. Kelly

No. 142900417

Attorneys:

Larry S. Jenkins, Lance D. Rich, David A. Jaffa, Salt Lake City, 

for appellants

Angilee K. Dakic, Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, 

in which CHIEF JUSTICE DURRANT and JUSTICE PETERSEN joined.

JUSTICE HIMONAS filed a dissenting opinion, in which 

JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This is an adoption proceeding involving a child (B.B.) 

whose unmarried biological parents are members of the Cheyenne 

River Sioux Tribe. The child was born in Utah and placed for 

adoption in a proceeding filed in the third district court in 2014. We 

are hearing the case for the second time on appeal. In the first 

appeal, a majority of this court reversed on the basis of a 
IN RE ADOPTION OF B.B.

Opinion of the Court

2

determination that the child’s biological father (E.T.) had a right to 

intervene as a “parent” under a newly established federal standard 

of parentage under the Indian Child Welfare Act (ICWA).1 On 

remand, both E.T. and the Cheyenne River Sioux Tribe moved to 

transfer the case to the tribal court under section 1911(a) of ICWA, 

which provides that an “Indian tribe” has exclusive jurisdiction 

“over any child custody proceeding involving an Indian child who 

resides or is domiciled within the reservation of such tribe, except 

where such jurisdiction is otherwise vested in the State by existing 

Federal law.” 25 U.S.C. § 1911(a). The district court granted the 

motion on the ground that B.B. was “domiciled within the 

reservation” at the time this action was filed. We reverse.

¶2 The district court based its decision on two alternative 

grounds: (1) the child was domiciled on the reservation because his

mother (C.C.) was domiciled on the reservation at the time of the 

child’s birth, and (2) the child was domiciled on the reservation 

because C.C. had “abandoned” him and transferred his domicile to 

that of E.T., who was domiciled on the reservation. We disagree on 

both counts. We hold that (1) C.C. was domiciled in Utah at the 

time of B.B.’s birth and (2) her initiation of formal adoption 

proceedings did not constitute an abandonment that shifted B.B.’s 

domicile to the reservation. We thus establish that the district court 

has jurisdiction, and reverse and remand for further proceedings.

I. BACKGROUND

¶3 In December 2013, C.C. and E.T. were in a committed 

relationship and engaged in sexual intercourse that led to the 

conception of B.B. Both parents are members of the Cheyenne River 

Sioux Tribe, and both resided on the Cheyenne River Sioux 

Reservation in South Dakota at the time of conception and for the 

first six months of the pregnancy.

¶4 While on the reservation, C.C. decided to place B.B. for 

adoption.2 With that in mind, she contacted Heart to Heart, a Utah 

______________________________________________________________________________

1 See In re Adoption of B.B., 2017 UT 59, ¶ 71, 417 P.3d 1. But see

id. ¶¶ 158–67 (Lee, A.C.J., joined by Durrant, C.J., dissenting) 

(concluding that ICWA incorporates state law standards of 

parentage and that the biological father in this case had failed to 

perfect his parental rights under state law).

2 Appellants dispute whether C.C. had “decided unequivocally 

on adoption,” citing C.C.’s deposition—including portions not in 

(continued . . .)
Cite as: 2020 UT 53

Opinion of the Court

3

adoption agency. Around June 2014, C.C. moved to Utah to be 

closer to friends and family and to pursue housing and 

employment opportunities. The stated plan was for E.T. to follow 

C.C. to Utah. But after the move, C.C. stopped communicating 

directly with E.T. and told him through family members that she 

planned to return to the reservation “soon.”

¶5 C.C. gave birth to B.B. in Utah on August 29, 2014. The next 

day, she signed a relinquishment of parental rights and consent to 

adoption and gave physical custody of B.B. to Heart to Heart. C.C. 

did not immediately inform E.T. of B.B.’s birth. Instead, she signed 

a false statement naming her brother-in-law as B.B.’s biological 

father. Heart to Heart then had C.C.’s brother-in-law sign a 

contemporaneous relinquishment of parental rights and consent to 

adoption in which he falsely represented that he was B.B.’s 

biological father and neither an enrolled member of a Native 

American tribe nor eligible for membership in one.

¶6 On September 4, 2014, the prospective adoptive parents 

filed their adoption petition in the district court. Four days later, 

C.C. went to court and executed a voluntary relinquishment of 

parental rights, a consent to adoption, and a consent to an order 

terminating her parental rights, again naming her brother-in-law as 

B.B.’s biological father. On September 25, 2014, the district court 

issued an order purporting to terminate C.C.’s rights and 

determine the biological father’s rights. The court then transferred 

legal custody of B.B. to Heart to Heart and authorized it to delegate 

custody to the prospective adoptive parents.

¶7 That same month, C.C. returned to South Dakota and told

E.T. that she had given birth to B.B. and placed him for adoption. 

Three months later, E.T. moved to intervene in the adoption 

proceedings. The district court denied the motion. On appeal, this 

court held that E.T. was a parent under a newly established federal 

ICWA standard of parentage with a right to intervene in the 

adoption proceedings. See In re Adoption of B.B., 2017 UT 59, ¶ 78, 

417 P.3d 1. We reversed and remanded the case to the district court

on that basis. Id. ¶ 3.

¶8 On remand, E.T. and the Cheyenne River Sioux Tribe 

asked the district court to transfer the adoption proceedings to the 

tribal court under 25 U.S.C. section 1911. The district court granted 

______________________________________________________________________________

the record. The extra-record citations were improper, but do not 

affect our analysis because we conclude that the initiation of 

adoption proceedings does not constitute abandonment.
IN RE ADOPTION OF B.B.

Opinion of the Court

4

the motion to transfer under section 1911(a), which provides that 

an “Indian tribe” has exclusive jurisdiction “over any child custody 

proceeding involving an Indian child who resides or is domiciled 

within the reservation of such tribe, except where such jurisdiction 

is otherwise vested in the State by existing Federal law.” 25 U.S.C. 

§ 1911(a). The district court based its decision on two alternative 

grounds. First, it held that B.B. was domiciled on the reservation at 

the time of his birth because his mother, C.C., was domiciled there 

at that time. Second, the court found that under the abandonment 

standard found in comment e of the RESTATEMENT (SECOND) OF 

CONFLICT OF LAWS § 22 (AM. LAW INST. 1971), C.C. had 

“abandoned” the child by initiating adoption proceedings after the 

child’s birth. The district court further interpreted this to mean that 

B.B. took on the domicile of his father, E.T., which was the 

reservation. Because the court deemed B.B. to be domiciled on the 

reservation at the time of the filing of the adoption petition on 

either or both of these grounds, it ordered the transfer of this case 

to the tribal court under 25 U.S.C. section 1911(a). The prospective 

adoptive parents then filed this appeal.

¶9 After oral argument, we issued a supplemental briefing 

order asking the parties to further address the controlling standard 

of “abandonment” in a case like this one. Specifically, we asked the 

parties to address whether abandonment is a federal or state 

standard in a case arising under 25 U.S.C. section 1911(a), and what 

the standard should be if the standard is federal.

II. DISCUSSION

¶10 The jurisdictional question presented is controlled by 

section 1911(a) of ICWA. That provision states that tribal courts 

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 an Indian tribe. 25 U.S.C. § 1911(a). The 

key question here is whether B.B. was “domiciled” on the 

reservation at the time the adoption proceeding was filed. If so, 

then the tribal court has exclusive jurisdiction and the case should 

be dismissed on jurisdictional grounds. Otherwise, the child was 

domiciled in Utah, the district court retained jurisdiction, and the 

case should proceed to judgment here.

¶11 A child born out of wedlock typically takes on the domicile 

of the birth mother. See RESTATEMENT (SECOND) OF CONFLICT OF 

LAWS § 22 cmt. c (AM. LAW INST. 1971) (hereinafter RESTATEMENT). 

That general rule holds unless and until the mother “abandons” the 

child or takes other action. If and when there is an abandonment, 
Cite as: 2020 UT 53

Opinion of the Court

5

the child takes on the domicile of the person who then acquires the 

parental rights and obligations associated with the child. See id. § 22 

cmt. e.

¶12 This background implicates the two questions answered 

by the district court here—whether the mother, C.C., was 

domiciled on the reservation at the time of the child’s birth, and 

whether she “abandoned” the child and thereby transferred 

parental rights and obligations to the father, E.T., who is domiciled 

on the reservation. We disagree with the district court’s 

determinations on both grounds. 

¶13 Applying the uniform federal standard of domicile set 

forth in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 

(1989), we hold that C.C. was domiciled in Utah in light of 

uncontradicted evidence in the record of her intent to remain 

permanently in Utah when she moved here. As to abandonment, 

we hold that even if ICWA does mandate a uniform federal 

standard of abandonment and that standard is found in the 

Restatement, there is no basis for a determination that C.C. 

abandoned her child and transferred parental rights and 

obligations—and domicile—to E.T.

A. C.C.’s Domicile

¶14 The United States Supreme Court established a uniform 

federal standard of “domicile” for ICWA proceedings in Mississippi 

Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). Citing the 

Restatement, treatises, and “established common-law principles,” 

the court endorsed “generally uncontroverted” principles of 

domicile under which an adult’s “domicile is established by 

physical presence in a place in connection with a certain state of 

mind concerning one’s intent to remain there.” Id. at 47–48. 

“‘Domicile’ is not necessarily synonymous with ‘residence,’” as 

“one can reside in one place but be domiciled in another.” Id. at 48 

(citations omitted). The key is the person’s state of mind—her 

“intent to remain there” on a relatively permanent basis. Id. “One 

acquires a ‘domicile of origin’ at birth, and that domicile continues 

until a new one (a ‘domicile of choice’) is acquired” by moving to a 

new place with an intent to remain there relatively permanently. Id.

Such intent may be established directly by express statements of 
IN RE ADOPTION OF B.B.

Opinion of the Court

6

intention,3 or indirectly by circumstantial evidence (such as a 

decision to move to find new employment).4

¶15 C.C. was concededly domiciled on the reservation at the 

time she became pregnant with her child. Her stay in Utah was also 

brief—just a few months. And soon after giving birth and placing 

her child for adoption, there is no question that C.C. decided to 

return to live on the reservation. These seem to have been the 

grounds for the district court’s determination that C.C. remained 

domiciled on the reservation throughout her stay in Utah. The 

court found that C.C.’s intent was “to return to the Cheyenne River 

Sioux Reservation shortly after she relinquished her child.” In so 

stating, however, the court never identified any evidence 

suggesting that C.C. had that intent at the crucial time of relevance 

to domicile—when she initially left the reservation and moved to 

Utah. Instead it just pointed to the short duration of her stay in 

Utah, noting that she “reside[d] in Utah for only three or four 

months before returning to reside on the Reservation.” And in 

concluding that C.C. “lack[ed] credibility” in her 

relinquishment-form statement that she was not domiciled on the 

reservation, the court again highlighted the brevity of her stay and 

cited other events that happened after the move, such as C.C.’s 

return to the reservation within a month of giving birth to B.B. and 

misrepresentations about who B.B.’s biological father was. The 

district court also found that she probably did not understand “the 

______________________________________________________________________________

3 See RESTATEMENT (SECOND) OF CONFLICT OF LAWS Ch. 2 Topic 2 

Special Note (AM LAW INST. 1971) (hereinafter RESTATEMENT) (“A 

person’s declarations as to what he considers to be his home, 

residence or domicil are generally admissible as evidence of his 

attitude of mind. Such declarations are frequently contained in 

formal legal documents, as wills, deeds and affidavits; they may 

also appear in letters, in hotel and automobile registrations and, at 

times, are made by word of mouth.”).

4 See id. (“In the absence of evidence as to the place where a 

person lives, . . . he will probably be found to be domiciled in the 

place where he works unless it can be shown that his job is only of 

a temporary nature. . . . Beyond all this, the place to which a person 

has the closest and most settled relationship is likely to be that 

where he votes, where he belongs to a church, where he pursues 

his various interests and where he pays taxes of the sort that are 

payable only by persons who are domiciled there. The courts 

frequently rely heavily upon such activities.”).
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Opinion of the Court

7

meaning of domicile” when she asserted in her affidavit that she 

was not domiciled on an Indian reservation.

¶16 A fact-intensive determination of a person’s domicile 

would ordinarily be a matter worthy of some deference on appeal.5

But we defer to fact-intensive mixed determinations only where the 

district court applies the correct legal standard.6 And here it 

appears that the district court applied a mistaken understanding of 

the standard of domicile. Nowhere in the written ruling did the 

district court ever identify the relevant time for evaluating C.C.’s 

intent in moving to Utah. In relying so heavily on the short duration 

of her stay in Utah, moreover, it appears that the court was focused 

on the wrong timeframe when it found that C.C. intended to return 

to the reservation. The court seems to have determined only that 

C.C. decided to move back to the reservation after placing her child 

for adoption and that her stay here was short. That is insufficient, 

as a person can establish a new domicile by moving somewhere 

with an intent to remain quite permanently but change her mind 

soon after arriving. See Gardner v. Gardner, 222 P.2d 1055, 1057 (Utah 

1950) (“Short absence from a former abode may be sufficient to 

evidence abandonment thereof, although the party might soon 

change his intention. A floating intention to return to a former 

abode is not sufficient to prevent the new abode from becoming 

one’s domicile.”)

¶17 For the above reasons, we are not in a position to defer to 

the district court’s determination of C.C.’s domicile. And we 

conclude that all the evidence in the record indicates that she had 

the intention of remaining here permanently when she moved to

Utah. In her affidavit submitted to the court, C.C. attested that 

when she arrived in Utah, she and E.T. “had agreed that [she] 

would move to Utah to be closer to some of [her] friends and 

family” and “get settled in with the employment and housing 

opportunities that had prompted th[e] move.” She also stated that 

the plan then was for E.T. to “come join [her] in Utah.” E.T. 

confirmed this understanding. In his affidavit of paternity, E.T. 

stated that C.C. had “moved to Utah to be closer to friends and 

______________________________________________________________________________

5 See In re Adoption of Baby B., 2012 UT 35, ¶¶ 42–43, 308 P.3d 382 

(noting that a fact-intensive mixed determination is subject to 

deferential review on appeal).

6 See Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 10, 977 

P.2d 474 (“The question of the correct legal standard is a question 

of law, which we review for correctness.”).
IN RE ADOPTION OF B.B.

Opinion of the Court

8

family” and that they had “agreed that [E.T.] would move to Utah 

and join her once she got settled in to [their] new 

apartment/home.” These are core hallmarks of domicile—they 

indicate an intent to establish a new home and seek employment 

and housing opportunities. And they are the only pieces of 

evidence in the record that speak directly to C.C.’s intent upon 

moving to Utah. We reverse on that basis. We hold that the 

evidence in the record indicates that C.C. moved to Utah with the 

intent to remain here.

¶18 C.C. made untruthful statements about the identity of 

B.B.’s biological father. And her plans apparently changed soon 

after she arrived in Utah. But none of that undermines our 

conclusion about her intent at the time she first moved here. In fact, 

the evidence in the record about her change of plans is consistent 

with our analysis. In her affidavit, C.C. explained the change in 

plans, noting that “shortly after” arriving in Utah she met a former 

boyfriend who pressured her to reconcile with him and place the 

child for adoption. It was only then that C.C. stopped talking with 

E.T. and instructed family members to tell him that she “was fine” 

and “would soon return to South Dakota.” That in no way 

undermines the conclusion that C.C. initially moved to Utah with 

the intent to remain here.

¶19 Because a change of domicile occurs once a person 

establishes physical presence in a new jurisdiction with the intent 

to remain, we hold that C.C. was a Utah domiciliary at the time of 

B.B.’s birth. On that basis we reject the first rationale for the district 

court’s determination that it lacked jurisdiction—the conclusion 

that B.B. was domiciled on the reservation because his mother had 

retained that domicile.

B. Abandonment

¶20 Above we noted that the United States Supreme Court has 

established a uniform federal standard of “domicile” under section 

1911 of ICWA. See supra ¶ 14 (citing Mississippi Band of Choctaw 

Indians v. Holyfield, 490 U.S. 30, 48 (1989)). The appellee in this case 

asserts that this decision extends to the question of abandonment. 

And he asks us to embrace the principles of abandonment set forth 

in the Restatement—a resource relied on extensively in Holyfield—

in reviewing the district court’s determination that C.C. abandoned 

her child and transferred the child’s domicile to E.T. (who 

remained domiciled on the reservation).
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Opinion of the Court

9

¶21 The question whether ICWA requires the establishment of 

a uniform federal standard of abandonment is a difficult one.7 We 

need not resolve it to decide this case, however, because the 

principles of abandonment in the Restatement are entirely 

consistent with Utah law. We thus review the district court’s 

decision without resolving the question whether abandonment in 

a case like this one implicates a uniform federal standard or a state 

standard.

¶22 In the paragraphs below, we first present the settled 

principles of abandonment reflected in both the Restatement and 

Utah law. Applying these principles, we conclude that the district 

court erred in ruling that C.C. abandoned B.B. and thereby shifted 

the child’s domicile to that of his biological father. Second, we 

respond to an implicit premise of the analysis of the district court 

______________________________________________________________________________

7 Because “abandonment [sometimes] affects domicile,” the 

district court seems to have assumed that there must also be a 

uniform federal standard of abandonment in ICWA cases. And it is 

true that certain principles of “domicile” were federalized in 

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

But it may not follow that all subsidiary determinations that inform 

the domicile inquiry, such as abandonment, must also be 

conducted under a uniform federal standard. We see a number of 

grounds for disputing the breadth of such a conclusion: 

(a) “domicile” is a “critical term” in ICWA, id. at 44, whereas 

“abandonment” appears nowhere in the statute; (b) the elements of 

domicile that were federalized in Holyfield were matters involving 

“established common-law principles” that were “widely used” in 

courts throughout the country, id. at 47–48, while many questions 

affecting the law of abandonment differ from state to state; and 

(c) the policy concerns that motivated the decision in Holyfield are 

not implicated here.

To the extent the governing principle of abandonment turns on 

premises on which the states are in disagreement, and on which 

there is no “established” common-law standard, we see grounds 

for the conclusion that ICWA permits the application of each state’s 

law. See 25 U.S.C. § 1901(5) (discussing the states’ exercise of their 

“recognized jurisdiction over Indian child custody proceedings 

through administrative and judicial bodies”); id. § 1921 (requiring 

the application of state law whenever it “provides a higher 

standard of protection to the rights of the parent or Indian 

custodian of an Indian child” than ICWA or other federal law). But 

we need not resolve this question here for reasons explained herein.
IN RE ADOPTION OF B.B.

Opinion of the Court

10

and the appellee—the notion that the jurisdictional regime set forth 

in section 1911(a), as interpreted in Holyfield, prevents an unwed 

Indian mother from evading tribal jurisdiction even when she is no 

longer domiciled on the reservation if the child’s biological father 

remains domiciled on the reservation. We show that this policy 

finds no support in ICWA and is actively undermined by Holyfield.

1. Effect of Abandonment on a Child’s Domicile

¶23 Comment c to section 22 of the Restatement establishes the 

general rule that “[a]n illegitimate child has the domicil of his 

mother.” This and other comments also set forth a range of 

exceptions to the general rule—circumstances in which the 

domicile of a child born out of wedlock may transfer to the domicile 

of someone other than the biological mother. The listed 

circumstances speak to the roles of adoptive parents (comment g) 

and unmarried biological fathers (comments a and c), making clear 

that the domicile of a child born out of wedlock and placed for 

adoption is that of the person who has parental rights in and 

obligations to the child. And they establish that parental rights and 

obligations—and thus domicile—remain with the birth mother 

unless and until someone else has assumed parental rights in and 

obligations to the child.

¶24 Yet another comment (comment e) establishes that an 

“abandonment” may also transfer a child’s domicile. RESTATEMENT

§ 22 cmt. e. According to the Restatement, this occurs when a 

parent “deserts the child” or “gives the custody of the child to 

another with the intention of relinquishing his parental rights and 

obligations.” Id. It was this comment—and this comment alone—

that the district court decided to focus on. Citing this standard, the 

district court found that C.C. abandoned B.B. by “intend[ing] to 

relinquish all parental rights and obligations just two or three 

months into the pregnancy” and signing (invalid) relinquishment 

forms. It then claimed that “federal law require[d]” it to “look to 

Father’s domicile” because when an Indian child is abandoned by 

one parent, “the tribe and the other parent domiciled on the 

reservation . . . still have an interest in the exercise of exclusive 

jurisdiction.”8

______________________________________________________________________________

8 The claim that this is a “requirement” of federal law is 

incorrect because it relies on a quote from the dissent in Holyfield. 

See 490 U.S. at 63 (Stevens, J., dissenting). We therefore decline to 

address it further.
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Opinion of the Court

11

¶25 This was error. When other comments in the Restatement 

are also taken into account, it becomes clear that a birth mother’s 

relinquishment of custody and signing away of parental rights in 

the formal adoption context does not amount to an “abandonment” 

because it is not done with the “intention of relinquishing . . . 

parental rights and obligations” immediately or unconditionally 

(let alone with an intent to surrender rights and obligations to an 

unmarried biological father who is not even a party to the 

adoption).9 A birth mother’s surrender of custody and waiver of 

her parental rights and obligations in the context of a formal

adoption certainly evinces an intent to eventually turn over parental 

rights and obligations to a specific, state-vetted adoption agency or 

couple. But new rights in and obligations to the child will attach 

and replace the birth mother’s only when certain conditions are 

met—once the adoption is final. And for that reason, it is wrong to 

say that a birth mother intends to immediately and unconditionally 

relinquish parental rights and obligations—walk away from or 

“abandon” her child—when she chooses to put her child up for 

formal adoption rather than simply leave him at the doorstep, 

daycare center, or family friend’s home. In this case, C.C.’s

“relinquishment of [her] parental rights and obligations” was both 

specific to the adoption setting and contingent on the finalization 

of the adoption. It was not done with an intent sufficient to 

constitute abandonment and transfer parental rights and 

obligations—along with the child’s domicile—to a third party as of 

the date of the relinquishment form.

¶26 These conclusions follow from several of the other 

comments to section 22 of the Restatement. The starting point is 

comment c. That comment says that the domicile of a child born out 

of wedlock will follow the domicile of the mother except in 

specifically enumerated circumstances. Id. § 22 cmt. c. The listed 

circumstances include abandonment under comment e and 

conditions “stated immediately below” in comment c. Id. The 

conditions “immediately below” indicate that the domicile of a 

child born out of wedlock will transfer to the domicile of the 

biological father only in limited circumstances—such as when he 

marries the child’s biological mother. Comment c states this point 

by negative (but clear) implication in the proviso that the child’s 

domicile remains with the mother “[a]fter the mother’s marriage to 

a man who is not the child’s father.” Id. (emphasis added). And the 

______________________________________________________________________________

9 While E.T. was eventually allowed to intervene in the case, he 

was not a party to the adoption proceedings in September 2014.
IN RE ADOPTION OF B.B.

Opinion of the Court

12

implication is made explicit in the general rule of comment a—that 

a child born in wedlock “is assigned the father’s domicil.”10 Id. § 22 

cmt. a. These provisions demonstrate that the domicile of a child 

born out of wedlock shifts to that of an unmarried biological father 

only when his inchoate parental rights are perfected, as upon 

marriage of the biological mother and father.11 Where (as in the 

instant case) that has not happened, comments a and c establish that 

the child’s domicile remains that of the mother.12

______________________________________________________________________________

10 The full quote from comment a is that a “child is assigned the 

father’s domicil when he lives with the father and has the same 

home as his.” RESTATEMENT § 22 cmt. a. This adds another wrinkle 

for an unmarried biological father who has never lived with his 

child. Under the Restatement, even if E.T. married C.C. and thereby 

became B.B.’s legal father, B.B. would not acquire E.T.’s domicile 

unless and until B.B. lived with E.T. in his home.

11 We need not and do not decide whether there are other events 

that could perfect an unwed biological father’s parental rights and 

obligations. (If the unwed mother deserts both her child and the 

unwed father, perhaps that would be such an event.) We hold only 

that (1) the Restatement ties the domicile of a child born out of 

wedlock to parental rights and obligations, (2) C.C. did not give up 

parental rights and obligations in B.B. by initiating formal adoption 

proceedings, and (3) in any case, E.T. had not perfected his parental 

rights and obligations in B.B. when C.C. filed the adoption petition.

12 The law of relevance to this point has evolved somewhat since 

the time of the Restatement. Today an unmarried biological father 

may have the right to notice of a pending adoption and the 

opportunity to contest the adoption. See Lehr v. Robertson, 463 U.S. 

248, 261, 267–68 (1983) (holding that an unwed biological father 

that “demonstrates a full commitment to the responsibilities of 

parenthood by ‘com[ing] forward to participate in the rearing of his 

child’” has a protected interest in “personal contact with his child” 

under the Fourteenth Amendment’s Due Process Clause and that 

adoption statutes distinguishing between biological mothers and 

unwed biological fathers “may not constitutionally be applied in 

that class of cases where the mother and father are in fact similarly 

situated with regard to their relationship with the child” under the 

Equal Protection Clause (alteration in original) (citation omitted)). 

In the context of an adoption, the unmarried biological father has 

the opportunity to seek to have his inchoate parental rights perfected 

(continued . . .)
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Opinion of the Court

13

¶27 Comment g is also significant because it speaks to the effect 

of an adoption proceeding on a child’s domicile. This comment 

provides that the “effect of an adoption is to substitute a new 

parent-child relationship in place of that which formerly bound the 

child to his natural parents.” Id. § 22 cmt. g. From that proviso, it is 

clear that a mother taking a step toward an adoption that is not yet 

final cannot amount to an immediate and unconditional intent to 

relinquish her parental rights and obligations (an abandonment),

let alone an intent to relinquish them to the biological father.

13

Instead, the initiation of an adoption is the start of a process that 

anticipates the relinquishment of a birth mother’s parental rights 

and obligations and the establishment of a new, specific 

parent-child relationship. When that process is complete, then “the 

domicil of the adopted child follows that of his adoptive parents.” 

Id. But that shift in domicile does not take place until the adoption 

is final. The child “takes the domicil of the adoptive parent” only 

“at the moment of adoption.” Id. These are settled principles of 

______________________________________________________________________________

and established. See id. at 262 (“The significance of the biological 

connection is that it offers the natural father an opportunity that no 

other male possesses to develop a relationship with his offspring. 

If he grasps that opportunity and accepts some measure of 

responsibility for the child’s future, he may enjoy the blessings of 

the parent-child relationship and make uniquely valuable 

contributions to the child’s development. If he fails to do so, the 

Federal Constitution will not automatically compel a state to listen 

to his opinion of where the child’s best interests lie.” (footnote 

omitted)). But the upshot is the same—the child’s domicile follows 

the legal parent, and thus does not shift to the unmarried biological 

father automatically just because he has made some attempt to 

assert his rights.

13 This is reflected in well-established principles of law 

endorsed across the nation. See Stanton Phillips, Adoption Law, 

Procedure and Practice, in 6 FAMILY LAW AND PRACTICE § 64.10[1] 

(Arnold H. Rutkin ed., 2019) (“The properly executed consent to 

adoption does not, in and of itself, normally terminate the parental 

rights or responsibilities of the person signing the document. 

Rather, most jurisdictions do not terminate the parental rights of 

the parent until the granting of the final decree of adoption. . . . In 

most jurisdictions, the birth parents’ parental rights remain in a 

state of legal limbo from the time of the signing of the consent to 

adoption until the entry of the final decree of adoption or legal 

termination of their rights.”).
IN RE ADOPTION OF B.B.

Opinion of the Court

14

adoption law. A birth mother thus retains her rights and 

obligations to a child unless and until the adoption is finalized.

14

¶28 These principles are also reflected in Utah law. The Utah 

Code expressly provides that “[a] pre-existing parent of an adopted 

child” retains “all parental rights and duties toward and all 

responsibilities for” an adopted child until “the earlier of: (a) the 

time the pre-existing parent’s parental rights are terminated; or 

(b) . . . the time the final decree of adoption is entered.” UTAH CODE 

§ 78B-6-138(1). True, once a birth mother signs a valid consent and 

relinquishment form, her involvement in the proceeding is 

normally over—the adoption is finalized, and parental rights and 

obligations (and domicile) are transferred to the adoptive parents. 

This is because a valid consent and relinquishment document is 

irrevocable as a matter of Utah law. See id. § 78B-6-126. But such a 

document (even an effective, irrevocable one) does not itself shift 

parental rights (or domicile). The shift happens only if and when 

the adoption is finalized or parental rights are terminated in a valid 

order—a point the code confirms by acknowledging a court’s 

authority to “enter a final order terminating parental rights before 

a final decree of adoption is entered.” Id. § 78B-6-112(3).

¶29 The code confirms that unwed birth mothers remain legal 

parents in failed adoptions by providing that a parent’s execution 

of a relinquishment of parental rights and consent to adoption 

“may not be considered as evidence” that the signatory “has 

neglected or abandoned the child” in a case in which “the court 

dismisses the adoption petition.” Id. § 78B-6-133(4). This is 

significant. By stating that a relinquishment and consent “may not 

be considered” as evidence of neglect or abandonment in a case in 

which “the court dismisses the adoption petition,” see id., the 

legislature is clarifying that Utah law is in line with the settled 

standard set forth in the Restatement. The execution of this 

document may function as a relinquishment of parental rights and 

______________________________________________________________________________

14 We express no opinion on what challenges a birth mother may 

or may not face in regaining the ability to exercise these parental 

rights. See id. (“The period between the taking of the consent and 

the termination of parental rights leaves open a variety of issues. 

The child is still the legal child of the birth parent but such rights as 

care, custody, control or visitation with the child are waived. Those 

rights may be restored to a birth parent by an event, such as a 

fall-through in the adoptive placement. Obligations of the birth 

parent, particularly in the area of child support, will continue until 

the parental rights are terminated.” (emphases added)).
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Opinion of the Court

15

obligations to an adoption agency or the adoptive parents if the 

adoption is finalized. But it does not amount to an “abandonment,” 

or surrender of custody with an intent to immediately and 

unconditionally relinquish parental rights and obligations to 

anyone who might step into the parental role.15

¶30 The district court accordingly erred in its determination 

that C.C.’s relinquishment forms in the formal adoption context 

constituted an “abandonment” that resulted in the establishment of 

a perfected legal relationship between the child and his unwed 

biological father (and therefore a change in the child’s domicile). 

The mother’s consent to adoption does not itself evince an intent to 

immediately relinquish parental rights and obligations or establish 

a new parent-child relationship with anyone. C.C. continued to 

participate in the necessary court proceedings and did not leave 

Utah until after the court had entered an order purporting to 

terminate her parental rights. And a consent only waives the 

mother’s rights vis-à-vis the adoption agency (or the prospective 

adoptive parents with whom the child is to be placed).

¶31 So C.C.’s parental rights appear to remain intact to this 

day16—although we again express no opinion on what steps she 

______________________________________________________________________________

15 Appellants rightly called our attention to this statutory 

provision in their briefing. But they quoted the operative statutory 

language selectively, in a manner that was misleading. They 

quoted the general proviso that a relinquishment or consent “may 

not be considered as evidence” of abandonment, but omitted the 

above-noted qualifier—the language indicating that this principle 

applies only in a case in which “the court dismisses the adoption 

petition.” UTAH CODE § 78B-6-133(4) (emphasis added). That is 

troubling. Counsel should have quoted the full provision. The 

selective quote was misleading and inappropriate.

16 The court did enter an order purporting to terminate C.C.’s 

parental rights based on her two signed 

relinquishment-and-consent documents. In re Adoption of B.B., 2017 

UT 59, ¶ 7, 417 P.3d 1. But the first one (signed the day after B.B.’s 

birth) was invalid as a matter of federal law because it failed to 

honor ICWA’s ten-day waiting period. 25 U.S.C. § 1913(a) (“Any 

consent given prior to, or within ten days after, birth of the Indian 

child shall not be valid.”). And the second one, though signed after 

the ICWA waiting period, was signed after the relevant date of the 

adoption petition. See Holyfield, 490 U.S. at 53 (holding that the 

(continued . . .)
IN RE ADOPTION OF B.B.

Opinion of the Court

16

might need to take to be in a position to exercise those rights. See 

supra ¶ 27 n.14. Unless and until the adoption is finalized, B.B.’s 

domicile follows the domicile of his birth mother.17 Everyone 

agrees that the initiation of adoption proceedings (to which C.C. 

consented) did not transfer domicile to that of the prospective 

adoptive parents. By the same logic, it didn’t transfer domicile to 

that of a third party like E.T., either.

¶32 We are aware of no legal authority that says that a birth 

mother’s consent to an adoption amounts to an abandonment—a 

surrender of custody with an immediate, unconditional intent to 

relinquish parental rights regardless of the outcome of the adoption 

proceeding.18 To sustain the district court’s holding, moreover, we

______________________________________________________________________________

tribal court had exclusive jurisdiction because the twin babies were 

domiciled on the reservation “when adoption proceedings were 

begun”); In re Adoption of Halloway, 732 P.2d 962, 966 (Utah 1986) 

(holding that “the propriety of [a] trial court’s assumption of 

jurisdiction turns on [the Indian child’s] domicile at the time the[] 

proceedings [a]re initiated”). In any event, that second consent was 

contingent on the entry of a final adoption order or an order 

terminating the birth mother’s parental rights (conditions that have 

yet to occur). See UTAH CODE § 78B-6-138 (stating that a birth parent 

retains all rights and duties until “the earlier of: (a) the time the preexisting parent’s parental rights are terminated; or (b) . . . the time 

the final decree of adoption is entered”).

17 In the context of an ICWA jurisdictional determination, B.B.’s 

domicile remains that of his mother at the time the adoption 

petition was filed. See supra ¶ 31 n.16. C.C. could not shift B.B.’s 

domicile after the fact by changing her own domicile.

18 The authority that we have found cuts directly against this 

proposition. In Utah and elsewhere, abandonment is the 

permanent relinquishment of all rights in and obligations to a 

child—the kind of relinquishment that results in “the destruction 

of the parent-child relationship.” See State in Interest of Summers 

Children v. Wulffenstein, 560 P.2d 331, 334 (Utah 1977) (“[T]he 

father’s conduct demonstrated a conscious disregard of the 

obligations owed by a parent to a child, leading to the destruction 

of the parent-child relationship—an abandonment.”). And the 

destruction of a parent-child relationship necessarily requires the 

initiation of a new one. See HOMER H. CLARK, JR., 2 THE LAW OF 

DOMESTIC RELATIONS IN THE UNITED STATES § 21.1 (2d ed. 1987) (“As 

(continued . . .)
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Opinion of the Court

17

would have to take this novel premise a step further. We would 

have to hold not only that a birth mother’s consent to adoption is 

an abandonment or immediate and unconditional relinquishment,

but also that her parental rights and obligations revert at the filing 

of the adoption petition to a third party whose parental rights are 

at best inchoate. This we decline to do.

¶33 So even if E.T. is correct that ICWA mandates a uniform

federal standard of abandonment and the district court was correct 

to apply the standard found in section 22 of the Restatement, the 

district court’s decision cannot stand. The Restatement regime

necessarily ties domicile to parental rights and obligations.19 And 

______________________________________________________________________________

a result of the adoption decree the legal rights and obligations 

which formerly existed between the child and his natural parents 

come to an end, and are replaced by similar rights and obligations 

with respect to his new adoptive parents.”).

A biological parent’s consent to the initiation of an adoption 

proceeding may foreclose the right to rescind the relinquishment of 

parental rights vis-à-vis the adoption agency or prospective 

adoptive parents. See Phillips, supra ¶ 27 n.13, at § 64.10[1] (“The 

period between the taking of the consent and the termination of 

parental rights leaves open a variety of issues. The child is still the 

legal child of the birth parent but such rights as care, custody, 

control or visitation with the child are waived.”); UTAH CODE 

§ 78B-6-126 (“A consent or relinquishment is effective when it is 

signed and may not be revoked.”). But we are aware of no authority 

that suggests such consent is an unconditional relinquishment 

foreclosing the restoration of parental rights when an adoption fails 

to come to fruition. Again, numerous authorities have reached the 

opposite conclusion. See, e.g., Phillips, supra ¶ 27 n.13, at § 64.10[1] 

(explaining that parental rights “may be restored to a birth parent 

by an event, such as a fall-through in the adoptive placement”); 

UTAH CODE § 78B-6-138(1) (stating that a birth parent retains all 

rights and duties until “the earlier of: (a) the time the pre-existing 

parent’s parental rights are terminated; or (b) . . . the time the final 

decree of adoption is entered”).

19 The dissent’s contrary view rests on the unsupported 

assertion that “a finding of abandonment for purposes of domicile” 

“does not compel (or even influence)” a finding of abandonment 

“for purposes of adjudicating parental rights.” Infra ¶ 132; see also 

infra ¶¶ 57 n.23, 95 n.29, 106, 116, 118 n.31, 128–31. But this 

(continued . . .)
IN RE ADOPTION OF B.B.

Opinion of the Court

18

there is thus no basis for the determination that the birth mother’s 

relinquishment and consent to B.B.’s adoption shifted parental 

rights and obligations—and domicile—to his biological father.

¶34 The dissent believes that it is comment e (which deals with 

“abandonment”) that dictates the starting position in deciding the 

domicile of a child born out of wedlock and placed for adoption—

not comment c (which deals specifically with “[i]llegitimate 

child[ren]”) or comment g (which deals specifically with 

“[a]dopted child[ren]”). See infra ¶¶ 123–27. This is incorrect for at 

least two reasons.

¶35 First, B.B. is a child born out of wedlock and placed for 

adoption first and an (allegedly) abandoned child second. That 

alone should establish which comment sets the default rules in 

B.B.’s case—comment c, which (1) states that “[a]t birth an 

illegitimate child takes the domicil his mother has at the time as his 

domicil of origin” and (2) suggests (in conjunction with comment a) 

that the child’s domicile will not shift to that of the unwed 

biological father except in limited circumstances—such as upon 

marriage. See RESTATEMENT § 22 cmt. c (emphases added). 

Likewise, comment g speaks to B.B.’s situation directly. It is 

undisputed that B.B. was placed for adoption. It is the entire subject 

of this appeal whether that placement also constituted 

abandonment.

______________________________________________________________________________

distinction does not hold up under the law. The abandonment 

standard for domicile purposes is the abandonment standard for 

parental-rights purposes. The Restatement is not inventing a new, 

freestanding principle of “abandonment” for the purpose of 

establishing a child’s domicile, as the dissent seems to believe. See 

infra ¶ 57 n.23 (lamenting the Restatement’s word choice as 

“unfortunate”). It is invoking a preexisting, parental-rights 

standard of abandonment in order to make a conflict-of-law 

determination of domicile. The language of the Restatement 

confirms that its use of “abandonment” is an intentional effort to 

capitalize on a legal determination used to adjudicate parental 

rights and obligations: “[A]bandonment . . . occurs when the parent 

gives the custody of the child to another with the intention of 

relinquishing his parental rights and obligations . . . . The rules of the 

forum are applied . . . to determine whether an abandonment has 

taken place.” RESTATEMENT § 22 cmt. e (emphasis added); see also id.

(“Under the local law of many states, a child who has attained years of 

discretion becomes emancipated upon being abandoned by both 

parents.” (emphasis added)).
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Opinion of the Court

19

¶36 Second, comment c (the comment governing 

“[i]llegitimate child[ren]”) must set the default rule in this case 

because comment e assumes that the child at issue was born in

wedlock—it presupposes that the child has taken on the domicile 

of his father. RESTATEMENT § 22 cmt. e (beginning by explaining 

what happens when a father abandons the child and declaring that 

“a child abandoned by both parents simultaneously retains the 

domicil of the father at the time of the abandonment.” (emphases 

added)). But this is the default for children born in wedlock, see id.

§ 22 cmt. a (“[T]he child takes as his domicil of origin the domicil 

the father has at the time of the child’s birth . . . .”), not those born 

outside it, id. § 22 cmt. c (“An illegitimate child has the domicil of 

his mother . . . .”). No doubt this is why Justice Stevens cited 

comment i’s standard—not comment e’s—in discussing what 

happens to the domicile of a child when she is “abandoned by both 

parents.” Holyfield, 490 U.S. at 62 (Stevens, J., dissenting). Put 

simply, comment e starts from a place from which we know for a 

fact B.B. did not—a birth in wedlock.

¶37 For these reasons, we are not “discard[ing]” or “ignor[ing] 

the relevant comment—comment e.” Infra ¶¶ 118, 125. We are 

reading it in the context of the default rules laid out for children 

born out of wedlock (comment c) and subsequently placed for 

adoption (comment g). Those comments capture the importance of 

parental rights and obligations to the domicile determination and 

explain B.B.’s situation perfectly. Holding up comment e without 

accounting for the Restatement’s connection between parental 

rights and domicile—or the default rules that come with a child’s 

out-of-wedlock birth status and prospective adoption—leaves all 

the important questions unanswered: With what “intention” did 

C.C. give up custody? Who had “parental rights and obligations” 

in B.B. at the time of the filing of the adoption petition? Despite its 

claim that we are “ignor[ing] comment e’s directive to examine 

Birth Mother’s ‘intention,’” infra ¶ 119, it is the dissent that glosses 

over these questions.

¶38 We are likewise not holding that comment e’s provision on 

abandonment “doesn’t apply” “whenever an adoption looms in the 

background,” infra ¶ 119, or “whenever the abandoning parent 

contemplates a future adoption,” infra ¶ 127. We do not doubt that 

a parent “contemplat[ing] a future adoption” could still take 

actions that amount to an abandonment. We hold only that giving 

up custody and signing consent forms in order to start the formal 

adoption process does not itself constitute abandonment under the 

text of the Restatement. And we do so by focusing on the 
IN RE ADOPTION OF B.B.

Opinion of the Court

20

“intention” with which a birth mother “gives . . . custody of the 

child to another,”20 RESTATEMENT § 22 cmt. e, and by reading 

comment e in conjunction with the comments governing children 

born out of wedlock and placed for adoption. It is the dissent that 

insists that other comments in the Restatement simply don’t apply 

in the circumstances we confront today. See infra ¶ 116 (suggesting 

comment a is “irrelevant”); infra ¶ 126 (claiming comment g—the 

comment governing “[a]dopted child[ren]”—is “irrelevant to this 

case”).

2. Indian Parents’ Domicile Changes under ICWA

¶39 In coming to a contrary conclusion, the district court seems 

to have assumed that the jurisdictional regime set forth in 25 U.S.C. 

section 1911(a) (as interpreted in Holyfield) prevents any Indian 

parent from evading exclusive tribal jurisdiction—even if she is no 

longer domiciled on the reservation—so long as the other Indian 

parent remains a domiciliary of the reservation. (The appellee 

appears to have made the same assumption.) The district court 

highlighted the United States Supreme Court’s concerns about 

reservation-domiciled Indian parents “undermin[ing]” ICWA’s 

jurisdictional regime and echoed the Holyfield dissent’s assertion 

that even when an Indian child “is abandoned by one parent to a 

person off the reservation, the tribe and the other parent domiciled 

on the reservation . . . still have an interest in the exercise of 

exclusive jurisdiction.” 490 U.S. at 63 (Stevens, J., dissenting). 

Likewise, E.T. claims that “C.C. cannot merely place the child for 

adoption in Utah with non-Indians . . . in an effort to circumvent 

the protections afforded the child’s father and the Cheyenne River 

Sioux Tribe under ICWA.”

¶40 This policy, however, finds no support in ICWA and is 

actively undermined by Holyfield. The concern that animates it, 

moreover, is completely obviated once we apply a correct standard 

of abandonment (informed not just by comment e taken out of 

context, but by other surrounding provisions).

¶41 This case is distinguishable from cases like Holyfield and In

re Adoption of Halloway, 731 P.2d 962 (Utah 1986), in a significant 

respect. Here, the birth mother was not domiciled on an Indian 

______________________________________________________________________________

20 The record facts speak volumes on C.C.’s “intention” with 

respect to her actions in these proceedings—she made 

arrangements with Heart to Heart, participated in the necessary 

court proceedings, and left Utah only once the district court had 

entered an order purporting to terminate her parental rights.
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Opinion of the Court

21

reservation. Rather, she moved to Utah and became a Utah 

domiciliary before she gave birth to her child. See supra ¶¶ 14–19. 

This is important, as neither Holyfield nor Halloway can be read to 

foreclose an Indian parent’s right to legitimately change her 

domicile and invoke the jurisdiction of her state’s courts.

a. ICWA, Holyfield, and Halloway

¶42 Section 1911(a) is not a straitjacket requiring exclusive 

tribal court jurisdiction for any child born to Indian parents so long 

as one of them remains domiciled on the reservation. ICWA calls 

for exclusive tribal jurisdiction only where “an Indian child . . . 

resides or is domiciled within the reservation.” 25 U.S.C. § 1911(a)

(emphasis added). But again, the domicile of a child born out of 

wedlock follows the domicile of the mother. See RESTATEMENT § 22 

cmt. c. So when the mother of an Indian child born out of wedlock 

leaves the reservation and establishes a new domicile in one of the 

states before the child’s birth, there is no basis for the exclusive 

jurisdiction of a tribal court. An unwed mother who makes a 

legitimate change of domicile is not undermining the exclusive 

tribal court jurisdiction set forth in section 1911(a). See 25 U.S.C.

§ 1911(b) (granting tribal courts only concurrent jurisdiction where 

the Indian child is “not domiciled or residing within the 

reservation”).

¶43 This is exactly in line with the holding of Holyfield. Holyfield

says that section 1911(a) is offended where a mother domiciled on 

a reservation is allowed to “obtain[] an adoption decree in state 

court merely by transporting her [child] across state lines.” 490 U.S. 

at 46. That is what happened in Holyfield. The birth parents were 

domiciled on an Indian reservation and briefly left the reservation 

just to give birth to twin children and place them for adoption in 

Mississippi. Id. at 37–38. Under well-established domicile 

standards followed in courts across the nation, the exclusive 

jurisdiction of the tribal court should have remained intact despite 

that temporary trip across state lines. The children should have 

been considered domiciliaries of the reservation because their 

domicile followed their mother and her brief trip across state lines 

did not change her domicile. Yet the Mississippi Supreme Court 

rejected that rule. Instead it held that the twins were not domiciled 

on the reservation because they had never “resided on or [been] 

domiciled within the territory set aside for the reservation.” Id. at 

39 (citation omitted). This was the holding reversed in Holyfield. 

And it was in rejecting that conclusion that the Holyfield court 

warned of the peril of allowing a party to circumvent the exclusive 
IN RE ADOPTION OF B.B.

Opinion of the Court

22

jurisdiction of the tribal court “merely by transporting” a child 

“across state lines.” Id. at 46.

¶44 But the Holyfield court never suggested that ICWA’s

exclusive-jurisdiction provision would be undermined if an Indian 

parent made a legitimate change of domicile. Quite the contrary. It 

specifically held that “the law of domicile Congress used in . . . 

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.” Id. at 53 (emphasis added). We made this same 

point in Halloway. “To the extent that Utah abandonment law 

operates to permit [an Indian] mother to change [her child’s]

domicile as part of a scheme to facilitate his adoption by 

non-Indians while she remains a domiciliary of the reservation,” we 

held that “it conflicts with and undermines the operative scheme 

established by [ICWA] to deal with children of domiciliaries of the 

reservation and weakens considerably the tribe’s ability to assert its 

interest in its children.” 732 P.2d at 969 (emphases added).

¶45 As we explain, the recognition that an Indian parent can 

properly “defeat” the tribal court’s exclusive jurisdiction through a 

legitimate change of domicile was a point of common ground in 

Holyfield. The only disagreement went to the implication of that 

premise in a case in which the child remained domiciled on the 

reservation because the unwed mother did not enter the state with 

the intent to permanently remain.

b. The Holyfield dissent

¶46 Justice Stevens asserted in dissent that the placement of the 

child for adoption was an “abandonment” sufficient to shift the 

child’s domicile to that of the adoptive parents. 490 U.S. at 62 n.11

(Stevens, J., dissenting). He saw no difference under ICWA 

between an Indian parent’s permanent change of domicile and an 

Indian parent’s temporary trip across state lines to place a child for 

adoption. Id. at 60–63. Because the state courts would have been

“required to give effect” to the Indian parents’ “choice of 

jurisdiction” resulting from an actual change of domicile, Justice 

Stevens thought that the courts should likewise defer “when the 

parents . . . have expressed an unequivocal intent to establish a 

domicile for their children off the reservation.” Id. at 62. Justice 

Stevens proposed a basis for this conclusion in the law of 

abandonment, citing the Restatement for the proposition that “[a]n 

abandonment occurs when a parent deserts a child and places the 

child with another with an intent to relinquish all parental rights 
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Opinion of the Court

23

and obligations.” Id. And he concluded that the parents in Holyfield

had abandoned their children by placing them for adoption in 

Mississippi. Id. at 62 n.11.

¶47 Justice Stevens cited some of the Restatement principles 

discussed above in reaching this conclusion—noting, in particular, 

that when a “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.” Id. at 62. Because the parents in Holyfield

relinquished their children for adoption under state law, Justice 

Stevens said they had abandoned them and shifted their domicile 

to that of the prospective adoptive parents. And Justice Stevens 

thought that “no purpose of the ICWA [wa]s served by closing the 

state courthouse door” to parents who had done so. Id. at 63. Thus, 

in Justice Stevens’s view, ICWA “reflects a recognition that 

allowing [an Indian] 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.” 

Id. at 60.

¶48 On this point the Holyfield majority disagreed. It thought 

that the Congress that enacted ICWA “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.” Id. at 49 (majority opinion). And 

as noted above, the Court held 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.” Id. at 53. Applying these 

premises, the Holyfield majority rejected the Holyfield dissent’s

abandonment determination. It held that the exclusive jurisdiction 

of the tribal court (established by the fact that the parents, and thus 

their children, were domiciled on the reservation) could not be 

defeated by that fact that “the twins were ‘voluntarily surrendered’ 

by their mother” for adoption under state law. Id. at 49.

¶49 The interplay between the Holyfield majority and dissent 

confirms three main propositions of relevance to this case: (1) the 

dissent saw ICWA as respecting Indian parents’ “deliberate choice 

of jurisdiction,” id. at 60 (Stevens, J., dissenting), while the majority 

said that principle is limited by concerns about “impact[s] on the 

tribes themselves,” id. at 34 (majority opinion); (2) both sides 

agreed that reservation-domiciled parents may defeat the exclusive 

jurisdiction of the tribal court by effecting a legitimate change in 

domicile; and (3) the majority held that there was no abandonment 
IN RE ADOPTION OF B.B.

Opinion of the Court

24

sufficient to shift the children’s domicile off the reservation while 

the dissent thought otherwise. Each of these points is significant. 

And together they sustain the conclusion we reach today.

¶50 The dissent in Holyfield clearly had a point about a 

reservation-domiciled parent’s “deliberate choice of jurisdiction” 

under ICWA. Under the terms of section 1911(a), there is no doubt 

that Indian parents are entitled to evade the exclusive jurisdiction 

of the tribal courts by making a legitimate change in domicile. See 

25 U.S.C. § 1911(a) (“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 . . . .” (emphasis added)). This was common 

ground in Holyfield. See 490 U.S. at 48–49 (“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. Thus, it is clear 

that at their birth the twin babies were also domiciled on the 

reservation, even though they themselves had never been there.” 

(citation omitted)); id. at 62 (Stevens, J., dissenting) (“If [the Indian 

parents] had established a domicile off the reservation, the state 

courts would have been required to give effect to their choice of 

jurisdiction.”). The disagreement went to whether a 

relinquishment for an adoption under state law is a parallel move 

by an Indian parent—the kind of move that merits respect as a 

“deliberate choice of jurisdiction.” The majority said no. And that 

holding confirms the propriety of our abandonment analysis.

c. Application to this case

¶51 If the abandonment standard endorsed by the district 

court and advocated by E.T. and (to a certain extent) the dissent 

were correct, then the parents in Holyfield would have abandoned 

their children and shifted their children’s domicile off the 

reservation. The Indian parents in Holyfield left the reservation, 

gave up custody of their children, signed a consent-to-adoption

form, and returned to the reservation. Id. at 37–38 (majority 

opinion). This was an abandonment under the standard E.T. 

advocates today. But such actions were deemed insufficient to 

constitute abandonment in Holyfield. See id. at 51 n.26 (dismissing 

the Mississippi Supreme Court’s “conclusory” abandonment 

analysis and noting that the Indian parents’ consent to termination 

of their parental rights was invalid under ICWA and as such could 

not make the twins non-domiciliaries of the reservation). Only the 
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Opinion of the Court

25

Holyfield dissent advanced the view of abandonment E.T. asks us to 

affirm today.21

¶52 Justice Stevens was right that when both parents abandon 

a child, his domicile shifts to that of the “person other than the 

parents who stands in loco parentis to him.” Id. at 62 (Stevens, J., 

dissenting) (quoting RESTATEMENT § 22 cmt. i). And of course 

prospective adoptive parents usually do step into that role. But 

Justice Stevens believed that a formal adoption amounts to 

abandonment. And that is incorrect. Neither parental rights and 

obligations nor domicile shifts upon the signing of a consent form 

or relinquishment of custody. So there is no abandonment at the 

operative moment of the initiation of the adoption in those 

circumstances. This is a key takeaway from Holyfield. And it defeats 

any concern about abandonment being used to circumvent the 

exclusive jurisdiction of the tribal courts in this manner.

______________________________________________________________________________

21 This reveals another defect in the dissent’s analysis—its 

proposed standard can be reconciled with ICWA precedent only by 

tacking on a “caveat[]” to the Restatement. The dissent claims that 

despite its text, the Restatement’s abandonment standard can cut 

in only one direction—in favor of exclusive tribal court jurisdiction.

See infra ¶ 98 (asserting that its “doctrine of abandonment cannot 

be used by Native American Indian parents as part of a scheme to 

facilitate adoption of their children by non-Indians while they 

remain domiciliaries of the reservation” (citation and internal 

quotation mark omitted)). In other words, giving up custody of a 

child and placing him for adoption is not a domicile-shifting 

abandonment unless it results in exclusive tribal jurisdiction. This 

is the only way to reconcile its standard with the result of Holyfield, 

as the dissent partially admits. See infra ¶ 98 (“This exception . . . 

fits the United States Supreme Court’s decision in Holyfield, which 

. . . concluded . . . 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.” (citation and internal quotation mark 

omitted)); infra ¶ 136 (citing this caveat as a reason its proposed 

standard would in fact have dictated the same result in Holyfield). 

And the fact that the dissent’s interpretation of the Restatement 

requires a special caveat to comport with this court’s and the High 

Court’s precedent confirms that it is neither the most natural 

reading of the text nor the most advisable.
IN RE ADOPTION OF B.B.

Opinion of the Court

26

¶53 We decline to hold that ICWA mandates exclusive tribal 

court jurisdiction in any case in which either parent of an Indian 

child remains a domiciliary of the reservation, no matter what the 

reservation-domiciled parent’s legal relationship to the child is at 

the time of the filing of the adoption petition. That view distorts the 

terms of 25 U.S.C. section 1911(a), which makes exclusive tribal 

jurisdiction turn on the domicile of the Indian child, not the Indian 

parent. And it runs counter to Holyfield and Halloway for the same 

reason. We reject it on that basis.

III. CONCLUSION

¶54 The congress that enacted the Indian Child Welfare Act

was understandably concerned about the effects of “abusive child 

welfare practices” in separating “large numbers of Indian children 

from their families and tribes through adoption or foster care 

placement.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,

32 (1989). This federal statute, however, is not a directive for state 

courts to restructure settled doctrines of family law in an ongoing 

effort to advance those objectives alone. ICWA is a statute that 

balances multiple, competing policies, under terms and conditions 

voted into law in the text of ICWA.22

¶55 In Holyfield, the Supreme Court held that those terms and 

conditions demand the application of a uniform federal standard 

of “domicile” in determining whether a tribal court has exclusive 

jurisdiction under 25 U.S.C. section 1911(a). And that requirement,

in turn, might ultimately direct us to incorporate a uniform federal 

standard of abandonment lifted from section 22 of the Restatement. 

But the district court did not follow that premise through to its 

logical conclusion. It took a single comment of that section out of 

context and established a novel standard of abandonment that runs 

counter to the Restatement as a whole and thwarts the express 

terms of the operative statute.

¶56 Section 1911(a) clearly allows an unwed birth mother 

initially domiciled on an Indian reservation to legitimately 

establish a new domicile in Utah and invoke the jurisdiction of the 

______________________________________________________________________________

22 See In re Adoption of B.B., 2017 UT 59, ¶ 180, 417 P.3d 1 (Lee, 

A.C.J., joined by Durrant, C.J., dissenting) (noting that ICWA is 

aimed not only at “protecting the integrity of Indian families” but 

also “at preserving the sovereignty of the state courts over adoption 

and paternity” and “protecting the children whose interests are so 

keenly implicated in adoption proceedings”).
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Himonas, J., dissenting

27

mother of that option, the district court was not advancing the 

purposes of ICWA or following a uniform federal standard of 

abandonment. It was advancing a new policy preference and 

causing unnecessary delay to the outcome of a proceeding in which 

time is of the essence. We reverse the district court on that basis,

remanding the matter so that this adoption might be brought to a 

speedy conclusion.

JUSTICE HIMONAS, dissenting:

INTRODUCTION

¶57 The majority stumbles in holding that the Cheyenne River 

Sioux Tribe doesn’t have exclusive jurisdiction over this case.

Unlike the majority, I would hold that, for purposes of determining 

domicile under a conflict-of-laws analysis, B.B.’s birth mother 

abandoned him before the filing of the adoption petition.

23 And as 

a result of that abandonment, I would hold that B.B. took his birth 

father’s domicile (the Cheyenne River Sioux Reservation) by the 

time of the filing. In these circumstances—when an Indian child is 

domiciled on a tribe’s reservation—the plain language of the Indian 

Child Welfare Act (ICWA or the Act), 25 U.S.C. §§ 1901–63, vests 

exclusive jurisdiction over all child custody proceedings with the

apposite tribal court. And because ICWA requires that we dismiss 

this case and cede jurisdiction to the Cheyenne River Sioux tribal 

court, I respectfully dissent.

STANDARD OF REVIEW

¶58 We review questions of law for correctness, granting no 

deference to the lower court’s decision. See Smith v. Robinson, 2018 

______________________________________________________________________________

23 The Second Restatement of Conflict of Laws uses the rather 

unfortunate verb abandon when writing about a child’s domicile,

and so I feel constrained to do the same. See, e.g., RESTATEMENT 

(SECOND) OF CONFLICT OF LAWS § 22 cmt. e (AM. LAW INST. 1971)

(“[A] child domiciled with his mother and abandoned by her takes 

the domicil of his father if he has not been abandoned by him.”). I 

say unfortunate because in the vernacular, in the context of the 

parent-child relationship, the word “abandoned” is pejorative, 

conjuring up images of parents furtively leaving their infants on 

the doorsteps of strangers. But in the parlance of the Second 

Restatement, even the most selfless behavior can constitute 

abandonment, such as when a mother places a child for adoption 

with the dream of improving that child’s lot. See infra ¶¶ 100–10.
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

28

UT 30, ¶ 8, 422 P.3d 863. And we review a district court’s findings 

of fact for clear error, setting aside those findings only if they’re

against the clear weight of the evidence. See Fort Pierce Indus. Park 

Phases II, III & IV Owners Assoc. v. Shakespeare, 2016 UT 28, ¶ 16, 379 

P.3d 1218.

ANALYSIS

¶59 We need to decide which court has jurisdiction over this 

case under ICWA. To answer that question, we have to decide 

where B.B. was domiciled when the adoption petition was filed. 

And to do that, we must analyze how abandonment affects an 

Indian child’s domicile under ICWA.

¶60 I start with a review of ICWA and United States Supreme 

Court precedent interpreting ICWA. I conclude that ICWA and 

precedent mandate that courts apply a uniform federal standard of 

abandonment when determining whether abandonment has 

caused a change in an Indian child’s domicile. I also conclude that 

the proper uniform federal standard of abandonment to establish

domicile under ICWA is set forth in section 22 of the Second 

Restatement of Conflict of Laws. See RESTATEMENT (SECOND) OF 

CONFLICT OF LAWS § 22 (AM. LAW INST. 1971) (hereinafter SECOND 

RESTATEMENT). By assessing the facts of this case under that 

standard, I show that the district court correctly determined that 

C.C. (Birth Mother) abandoned B.B. before the time of filing and

that B.B. was therefore domiciled on the Cheyenne River Sioux 

Reservation when the adoption petition was filed. I thus conclude 

that under ICWA, the Cheyenne River Sioux tribal court has 

exclusive jurisdiction over this case and that we’re obligated to 

dismiss it for want of subject matter jurisdiction.

I. OVERVIEW OF ICWA

¶61 ICWA is a unique statute that represents an extraordinary 

act of federal intervention into an area of law generally reserved to 

the states. It helps to review both ICWA itself and United States

Supreme Court precedent interpreting ICWA before delving into 

the legal analysis in this case.

A. ICWA’s Background, Congressional Findings, 

and Operative Provisions

¶62 To paint a clear picture of ICWA, I begin with the Act’s 

background, and then I move on to its congressional findings, 

which are explicitly set forth in the Act itself. I end with its relevant 

operative provisions.
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Himonas, J., dissenting

29

¶63 Congress passed ICWA in 1978 in response to “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.” Miss. Band of 

Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989) (emphasis added). 

Studies conducted in 1969 and 1974 estimated that 25 to 35 percent 

of all Indian children had been separated from their families and 

tribes and placed with adoptive families, foster care, or institutions. 

Id. Furthermore, about 90 percent of such adoptive placements 

were in non-Indian homes. Id. at 33.

¶64 Before enacting ICWA, Congress heard testimony from 

several witnesses that spoke to the effect that these adoptions had 

on Indian children, as well as on the parents and the tribes 

themselves. Id. Although most of the testimony focused on the 

harm to parents and children, there was also “considerable 

emphasis” on the harm to the tribes themselves caused by the 

“massive removal” of Indian children. Id. at 34. The Tribal Chief of 

the Mississippi Band of Choctaw Indians testified, for example, that 

Indian children are “the only real means for the transmission of 

tribal heritage” and that the removal of Indian children to nonIndian homes “seriously undercut[s] the tribes’ ability to continue 

as self-governing communities.” Id. He also testified that “[m]any 

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 35.

¶65 These concerns are reflected in the congressional findings 

of ICWA, which state that Congress found “there is no resource 

that is more vital to the continued existence and integrity of Indian 

tribes than their children.” 25 U.S.C. § 1901(3). ICWA also 

recognizes that Congress found “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.” Id.

§ 1901(5).

¶66 Based on these findings, Congress expressed its goal to 

protect Indian tribes, families, and children from the corrosive 

effect of the removal of Indian children from their families:

[I]t is the policy of this Nation to protect the best 

interests of Indian children and to promote the 
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

30

stability and security of Indian tribes and families by 

the establishment of minimum Federal standards for 

the removal of Indian children from their families 

and the placement of such children in foster or 

adoptive homes which will reflect the unique values 

of Indian culture.

Id. § 1902.

¶67 The operative provisions of ICWA, in turn, reflect the 

congressional findings and declaration of policy. Relevant here, 

section 1911(a) provides that “[a]n 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.” Id. 

§ 1911(a).

¶68 ICWA, then, goes to extraordinary lengths to delineate its 

own legislative intent: “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.” Holyfield, 490 U.S. at 37 (emphasis added)

(citation omitted).

B. ICWA Domicile Under U.S. Supreme Court Precedent

¶69 Having discussed ICWA’s background, congressional 

findings, and operative provisions, I now concentrate on how one 

of the Act’s key terms—domicile—has been interpreted by the 

United States Supreme Court.

¶70 The Supreme Court addressed and explored the issue of 

domicile in an ICWA case in quite some depth. In Holyfield, the 

Court had to determine whether twin Indian children were 

domiciled on the Choctaw Reservation. 490 U.S. at 42. The twins 

were born out of wedlock to two enrolled members of the 

Mississippi Band of Choctaw Indians, both of whom were 

domiciled on the Choctaw Reservation. Id. at 37. The mother gave 

birth to the twins off the reservation—in Mississippi—and both 

parents executed consents to adoption in Mississippi state court. Id.

at 37–38. The trial court issued a final decree of adoption a short 

while later. Id. at 38. The Mississippi Band of Choctaw Indians 

moved to vacate the adoption decree because, in its view, the tribal 

court retained exclusive jurisdiction over the proceedings under 

section 1911(a). Id. The trial court denied the motion, and the 

Supreme Court of Mississippi affirmed. Id. at 38–39.
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Himonas, J., dissenting

31

¶71 In its opinion reversing the Supreme Court of Mississippi’s 

decision, the U.S. Supreme Court began by noting that ICWA itself 

does not define “domicile” and that the “meaning of ‘domicile’ in 

the ICWA is . . . a matter of Congress’ intent.” Id. at 43. The initial 

question the Court had to confront, then, was “whether there is any 

reason to believe that Congress intended the ICWA definition of 

‘domicile’ to be a matter of state law.’” Id. The Court held that there 

was no reason to look to state law, and that it was “beyond dispute 

that Congress intended a uniform federal law of domicile for the 

ICWA.” Id. at 47. The Court based this conclusion on three 

premises, two of which are unique to ICWA.

¶72 The Court began with the general premise 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.” Id. at 43 (alteration in original) (citation 

omitted). As the Court explained, the primary reason for this rule 

is that “federal statutes are generally intended to have uniform 

nationwide application.” Id. And conditioning the application of a 

federal act on state law runs the risk that “the federal program 

would be impaired.” Id. at 44 (citation omitted). The Court then 

looked to the purpose of ICWA to determine what Congress 

intended. In doing so, the Court found “two principal reasons” for 

the conclusion that Congress intended a uniform federal definition 

of domicile for ICWA. Id.

¶73 “First, and most fundamentally,” the Court found that 

“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.” Id. at 44. Looking to the text of ICWA, as well 

as ICWA’s legislative history, the Court determined that “Congress 

was concerned with the rights of Indian families and Indian 

communities vis-à-vis state authorities” and that “its purpose was, 

in part, to make clear that in certain situations the state courts did

not have jurisdiction over child custody proceedings.” Id. at 45. For 

that reason, the Court found it “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.”24 Id.

______________________________________________________________________________

24 The Court’s reference to ICWA’s “key jurisdictional 

provision” is a reference to section 1911. See Holyfield, 490 U.S. at 36 

(“At the heart of the ICWA are its provisions concerning 

jurisdiction over Indian child custody proceedings. Section 1911 

lays out a dual jurisdictional scheme.”).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

32

¶74 Second, the Court noted the lack of nationwide uniformity 

that would result if domicile under ICWA hinged on state-law 

definitions of domicile. Id. The Court then explained that different 

states had ruled in opposite directions on factually similar cases 

that required an underlying finding of domicile—some finding the 

children to be domiciled on the reservation and others finding the 

children to be domiciled in the state. Id. at 45–46. The Court found

that “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.” Id. at 46.

¶75 Having held that Congress intended for a uniform federal 

definition of domicile to control in ICWA cases, the Court then 

determined what that definition should be. To do so, the Court 

“look[ed] both to the generally accepted meaning of the term 

‘domicile’ and to the purpose of the statute.” Id. at 47.

¶76 Citing the Second Restatement of Conflict of Laws, the 

Court began by noting that domicile is “a concept widely used in 

both federal and state courts for jurisdiction and conflict-of-laws 

purposes, and its meaning is generally uncontroverted.” Id. at 48 

(citing SECOND RESTATEMENT §§ 11–23). A child born out of 

wedlock traditionally takes the domicile of its mother. Id. (citing 

SECOND RESTATEMENT § 22 cmt. c). Because it was undisputed in 

Holyfield that the mother was domiciled on the reservation, the 

twins were also domiciled on the reservation at birth. Id. at 48–49.

¶77 The Court then explained that the domicile of the twins 

could not be different “simply because the twins were ‘voluntarily 

surrendered’ by their mother.” Id. at 49. This is because exclusive 

tribal jurisdiction under section 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.” Id. The Court thus thought it 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.” Id. at 51.

II. ABANDONMENT UNDER ICWA

¶78 This case turns on where B.B. was domiciled when the 

adoption petition was filed. In re Adoption of Halloway, 732 P.2d 962, 

966 (Utah 1986) (“[T]he propriety of the trial court’s assumption of 

jurisdiction turns on [the Indian child’s] domicile at the time these 

proceedings were initiated.”). Where B.B. was domiciled depends 
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Himonas, J., dissenting

33

on whether, for purposes of establishing B.B.’s domicile, Birth 

Mother abandoned B.B. before the filing of the adoption petition. 

We invited the parties to provide supplemental briefing on this 

issue. More specifically, we asked the parties to brief whether 

Congress intended for a uniform federal standard of abandonment 

to control in ICWA cases for purposes of establishing an Indian 

child’s domicile and, if so, what that standard is. I conclude that 

Congress unmistakably intended for a uniform federal standard of 

abandonment to control in these cases. And I further conclude that 

the uniform federal standard of abandonment Congress intended 

is the one in the Second Restatement of Conflict of Laws.

A. Abandonment Can Affect a Minor Child’s Domicile

¶79 Upon birth, a child acquires a “domicile of origin,” and 

that domicile continues until the child acquires a new domicile. See 

Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). 

Because most minors are legally incapable of forming the requisite 

intent to establish their own domicile, their domicile depends on

the domicile of their parents. Id. When a child is born out of 

wedlock, the child’s domicile of origin is that of the mother. Id.; see 

also Halloway, 732 P.2d at 966. This domicile continues until some 

action brings about a change of the child’s domicile. Halloway, 732 

P.2d at 966.

¶80 It is a generally accepted principle that, for conflict-of-laws

purposes, abandonment of a minor child can change that child’s 

domicile. This principle can be found in both the First and Second 

Restatements of Conflict of Laws. See RESTATEMENT (FIRST) OF 

CONFLICT OF LAWS § 33(1) (AM. LAW INST. 1934) (“[A] child 

abandoned by one parent has the domicil of the other parent, and 

. . . a child abandoned by both parents has the domicil of the parent 

who last abandoned it at the time of the abandonment; if both 

parents abandon it at the same time, it has the domicil of the father 

at the time of abandonment.”); SECOND RESTATEMENT § 22 cmt. e 

(“If a child is abandoned by his father, he takes the domicil of his 

mother if he has not been abandoned by her. So too, a child 

domiciled with his mother and abandoned by her takes the domicil 

of his father if he has not been abandoned by him. Except as stated 

in Comments f–i, a child abandoned by both parents retains the 

domicil possessed by the parent who last abandoned him at the 

time of the abandonment; a child abandoned by both parents 

simultaneously retains the domicil of the father at the time of the 

abandonment.”).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

34

¶81 This principle can also be found in federal case law. See,

e.g., Simonds v. Simonds, 154 F.2d 326, 327–28 (D.C. Cir. 1946) 

(“Customarily a legitimate child takes the domicile of the father if 

he be living. One of the recognized exceptions to the basic rule has 

grown from the abandonment situation. Where the father is found 

to have abandoned the child it will take the domicile of the mother 

during the remainder of its minority, provided, of course, that the 

mother has not also abandoned the offspring.” (citations omitted)).

¶82 It turns up in state case law from around the country, too. 

See, e.g., Allman v. Register, 64 S.E.2d 861, 862 (N.C. 1951) 

(“Ordinarily the domicile of an unemancipated child, during its 

minority, follows that of the father. However, . . . where a father 

abandons the mother and child, the child’s domicile follows that of 

the mother.” (citations omitted)); Halloway, 732 P.2d at 966 (“The 

law of domicile applicable here is well-established. At birth, an 

illegitimate child acquires the domicile of his or her mother. If the 

parents abandon the child, the child acquires the domicile of the 

party who stands in loco parentis to him or her and with whom he 

or she lives at the time of abandonment. However, unless a child is 

abandoned, or his or her domicile is otherwise lawfully changed, 

the child retains the mother’s domicile, even if he or she lives apart 

from her.” (citations omitted)).

¶83 Most relevant to this case is the rule that “a child domiciled 

with his mother and abandoned by her takes the domicil of his 

father if he has not been abandoned by him.” SECOND RESTATEMENT 

§ 22 cmt. e; see also 25 AM. JUR. 2D Abandoned Child § 40 (2019) (“A 

child abandoned by the mother acquires the domicil of the father 

while a child abandoned by the father acquires the domicil of the 

mother.”).

¶84 Here, the district court found that Birth Mother abandoned 

B.B. before the filing of the adoption petition and therefore that B.B. 

had taken E.T.’s (Birth Father’s) domicile by the time of filing. Thus,

the question we must answer is whether Birth Mother abandoned 

B.B. before the filing. To answer that question, I first determine 

what standard of abandonment applies to ICWA cases to establish

an Indian child’s domicile.25

______________________________________________________________________________

25 A footnote in Holyfield seems, at first blush, to suggest that it

isn’t a generally accepted principle that abandonment can carry out

a change in a child’s domicile. See 490 U.S. at 51 n.26 (“There is some 

(continued . . .)
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Himonas, J., dissenting

35

B. ICWA and U.S. Supreme Court Precedent Mandate a Uniform 

Federal Standard of Abandonment to Establish Domicile Under ICWA

¶85 ICWA and United States Supreme Court precedent require 

the courts to determine abandonment—for the purposes of

establishing ICWA domicile—under a uniform federal standard. 

The majority doesn’t decide this issue, claiming that “the principles 

of abandonment in the Restatement are entirely consistent with 

Utah law.” Supra ¶ 21. Unlike the majority, I would decide this 

issue—given how essential it is to a proper domicile analysis—and 

conclude that a uniform federal standard applies because of ICWA 

itself and the U.S. Supreme Court’s decision in Holyfield.

¶86 ICWA does not mention the words “abandon” or 

“abandonment,” let alone define them. But ICWA does use the 

word “domicile,” and the exclusive-jurisdiction provision in 

section 1911(a) depends on the Indian child’s domicile. And while 

______________________________________________________________________________

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 SECOND 

RESTATEMENT § 22 cmt. e (abandoned child generally retains the 

domicile of the last-abandoning parent).”). But the correct reading 

of this footnote is that abandonment does not always necessarily

effect a change in a child’s domicile. Holyfield’s citation to 

comment e of the Second Restatement proves this point. 

Comment e does provide that an abandoned child generally retains 

the domicile of the last-abandoning parent, as the footnote in 

Holyfield suggests, but only if the child is abandoned by both 

parents. SECOND RESTATEMENT § 22 cmt. e (“[A] child abandoned 

by both parents retains the domicil possessed by the parent who 

last abandoned him at the time of the abandonment.”). So, when

the child has been abandoned by both parents, an “abandoned 

child generally retains the domicile of the last-abandoning parent,”

as Holyfield suggests. 490 U.S. at 51 n.26. In that context, 

abandonment would not necessarily effect a change in a child’s 

domicile—assuming the child’s domicile was already that of the 

last-abandoning parent. But as comment e also provides, 

abandonment can and does bring about a change in a child’s 

domicile under other circumstances. See SECOND RESTATEMENT § 22 

cmt. e (“If a child is abandoned by his father, he takes the domicil 

of his mother if he has not been abandoned by her. So too, a child 

domiciled with his mother and abandoned by her takes the domicil 

of his father if he has not been abandoned by him.”).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

36

ICWA itself does not define “domicile,” the U.S. Supreme Court 

did so in Holyfield.

¶87 As discussed above, see supra ¶¶ 72–74, the Holyfield court 

found that it is “most improbable that Congress would have 

intended to leave the scope of [section 1911] subject to definition by 

state courts as a matter of state law” and that “a statute under 

which different rules [of domicile (and thus of jurisdiction)] 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.” 490 U.S. at 45–46. Holyfield therefore held that “Congress 

intended a uniform federal law of domicile for the ICWA.” Id. at 47. 

So, while we may lack explicit guidance on the narrow issue of how 

abandonment affects domicile under ICWA, we emphatically don’t

lack for guidance on how the law of domicile is supposed to 

function under ICWA.

¶88 If there’s to be a true uniform federal law of domicile for 

ICWA, then subsidiary determinations that effectively determine

the domicile question, such as abandonment, must also rest on 

uniform federal law.

26 If different standards of abandonment were 

to apply to the domicile inquiry depending on the state in which 

the proceeding takes place, then the work of Holyfield requiring a 

uniform federal law of domicile for ICWA would be all but undone. 

Applying state abandonment law to determine domicile would 

lead to an ICWA “under which different rules [of domicile (and 

thus of jurisdiction)] apply from time to time to the same child, 

simply as a result of his or her transport from one State to another,”

a result that Holyfield declared “cannot be what Congress had in 

mind.” Id. at 46. So, I think it beyond dispute that, given Congress’s

intent to have a uniform federal law of domicile to control in ICWA 

cases, Congress also intended for a uniform federal standard of 

abandonment to establish domicile under ICWA.

C. The Uniform Federal Standard of Abandonment 

Is in the Second Restatement of Conflict of Laws

¶89 Having established that a uniform federal standard of 

abandonment must control in ICWA cases to determine domicile, I 

now turn to what that standard is. After considering the parties’ 

arguments and surveying domicile law, I conclude that the best 

recitation of a uniform federal standard of abandonment to 

______________________________________________________________________________

26 “Whether a child has been abandoned so as to bring the case 

within the scope of this Comment is a question involving the rules of 

domicil.” SECOND RESTATEMENT § 22 cmt. e (emphasis added).
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Himonas, J., dissenting

37

determine domicile in ICWA cases is in the Second Restatement of 

Conflict of Laws: “An abandonment [for purposes of establishing 

the domicile of a minor] occurs in two situations. It occurs when 

the parent deserts the child; it likewise occurs when the parent 

gives the custody of the child to another with the intention of 

relinquishing his parental rights and obligations.” SECOND 

RESTATEMENT § 22 cmt. e; accord Halloway, 732 P.2d at 966 (“As a 

general matter, abandonment occurs when a parent deserts a child 

or places a child with another with an intent to relinquish all 

parental rights and obligations.”). Thus, I would hold that, to 

determine domicile in ICWA cases, an abandonment occurs when: 

(1) a parent deserts their child; or (2) a parent gives the custody of 

their child to another with the intention of relinquishing their 

parental rights and obligations, which is precisely what occurs in 

an adoption. I reach this conclusion for many reasons.

¶90 Restatements generally provide a helpful overview of the 

law as it exists across the country. “Restatements of law published 

by the American Law Institute purport to offer a synthesis of 

American common law, which articulates the reasoned, 

mainstream, modern consensus on principles of broad application 

intended to govern large numbers of cases.” Tincher v. Omega Flex, 

Inc., 104 A.3d 328, 353 (Pa. 2014). This means that restatements can 

be especially useful in a case such as this in which we must explain

a uniform federal standard without express direction from 

Congress.27

¶91 Beyond just having theoretical value as a bellwether of 

what uniform federal standard of abandonment should apply here, 

the Second Restatement has been central to ICWA cases that turn 

on a determination of an Indian child’s domicile.

¶92 Perhaps most importantly, the United States Supreme 

Court relied heavily on the Second Restatement in deciding

Holyfield. The Holyfield majority cited the Second Restatement’s 

chapter on domicile for the proposition that domicile is “a concept 

widely used in both federal and state court for jurisdiction and 

______________________________________________________________________________

27 In this spirit, this court has previously looked to restatements 

to help gain a better understanding of certain law as it exists across 

the country. For example, this court recently looked to restatements 

“as helpful bookends in our survey of the ‘generally recognized 

[law] in a majority of jurisdictions.’” C.R. England v. Swift Transp. 

Co., 2019 UT 8, ¶ 18, 437 P.3d 343 (alteration in original) (citation 

omitted).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

38

conflict-of-laws purposes, and its meaning is generally 

uncontroverted.” 490 U.S. at 48 (citing SECOND RESTATEMENT §§ 11–

23). The Holyfield majority also cited the Second Restatement for the 

proposition that children born out of wedlock traditionally take the 

domicile of their mother at birth. Id. (citing SECOND RESTATEMENT

§ 22 cmt. c). Both propositions were crucial to the Court’s 

conclusion that, under generally accepted law of domicile, the 

twins took the domicile of their biological mother at birth. See id. at 

48–49 (“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. Thus, it is clear that at their birth the twin babies were 

also domiciled on the reservation, even though they themselves 

had never been there.” (citation omitted)).

¶93 Even the dissent in Holyfield contemplated the 

abandonment issue and drew from the Second Restatement in its 

analysis. The dissent pointed out that the twins in Holyfield may 

have been abandoned by both parents. Id. at 62. And the dissent 

turned to the Second Restatement for a standard of abandonment:

“[a]n abandonment occurs when a parent deserts a child and places 

the child with another with an intent to relinquish all parental 

rights and obligations.” Id. (citing SECOND RESTATEMENT § 22 

cmt. e). So, while the Holyfield majority didn’t address the issue of 

abandonment—and therefore we have no binding Supreme Court 

precedent on the issue—it’s persuasive that both the majority and 

the dissent chose to draw heavily from the Second Restatement, 

with the latter raising it in its discussion of abandonment. At the 

very least, this gives us some insight into what the Supreme Court 

might consider to be a uniform federal standard for abandonment 

when determining domicile in ICWA cases.

¶94 The U.S. Supreme Court isn’t the only court to have looked 

to the Restatement when faced with the issue of an abandonment 

potentially affecting domicile in an ICWA case. Quite the opposite. 

The Restatement’s standard for abandonment appears to be a 

mainstay of post-Holyfield opinions that have confronted this issue. 

In In re Adoption of S.S., the Illinois Supreme Court cited the 

Restatement when it recognized that there are exceptions to the 

general rules of domicile in cases involving abandonment and that 

“[f]or purposes of establishing domicile, abandonment occurs 

when the parent deserts the child or when the parent gives custody 

of the child to another with the intention of relinquishing his 

parental rights and obligations.” 657 N.E.2d 935, 942 (Ill. 1995). 

Similarly, the Colorado Court of Appeals has concluded that the 

common-law concept of abandonment in the Restatement and cited 
Cite as: 2020 UT 53

Himonas, J., dissenting

39

in the Holyfield dissent could properly “determine whether the 

child [in that case] has been abandoned so as to change his domicile 

for the purpose of determining jurisdiction under the ICWA.” In re 

S.M.J.C., 262 P.3d 955, 962 (Colo. App. 2011), cert. granted, judgment 

vacated, No. 11SC371, 2011 WL 4018031 (Colo. Sept. 12, 2011).28

Likewise, the Western District of Oklahoma has relied on the 

Restatement in assessing how abandonment affects the domicile of 

an Indian Child. Comanche Indian Tribe of Okla. v. Hovis, 847 F. Supp. 

871, 880–84 (W.D. Okla. 1994), rev’d on other grounds, Comanche 

Indian Tribe of Okla. v. Hovis, 53 F.3d 298 (10th Cir. 1995). Although 

the Western District of Oklahoma didn’t discuss the standard for 

abandonment set out in comment e to section 22 of the Second 

Restatement—and relied on by the Holyfield dissent, In re Adoption 

of S.S., and In re S.M.J.C.—the court did cite extensively to section 

22 generally in making its abandonment determination. Id. at 880–

84. In sum, these cases demonstrate that courts at both the federal 

and state levels have turned to the Restatement to assess whether 

an abandonment has effectuated a change of domicile in ICWA 

cases.

¶95 Given the general purpose of the Restatement—to survey 

broad swaths of common law and distill widely applicable rules of 

law—and given the citations to the Second Restatement in ICWA 

cases from courts across the country, I believe that the standard of 

abandonment in the Second Restatement is the best approximation 

of the uniform federal standard Congress intended. As a result, an 

abandonment occurs for purposes of establishing domicile in 

ICWA cases when (1) a parent deserts their child or (2) a parent 

______________________________________________________________________________

28 The Colorado Supreme Court vacated the judgment in In re 

S.M.J.C. and remanded to the trial court for factual findings on the 

issue of abandonment in light of its ruling in D.P.H. v. J.L.B., 260 

P.3d 320 (Colo. 2011), which was a non-ICWA case that clarified the 

factual findings that a trial court must make before making a 

finding of abandonment for purposes of terminating parental 

rights, see id. at 324–26. To the extent that the Colorado Supreme 

Court intended for the In re S.M.J.C. trial court to rely on state 

standards of abandonment for terminating parental rights on 

remand in order to make a determination of domicile in an ICWA 

case, I respectfully submit that this isn’t what Congress intended. 

See supra ¶¶ 85–88.
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

40

gives custody of their child to another with the intention of 

relinquishing their parental rights and obligations.29

D. Caveats to Second Restatement Standard

¶96 Having identified a uniform federal standard of 

abandonment, I now quickly note two caveats to the Restatement 

standard that are dictated by ICWA.

¶97 First, the language in the Second Restatement stating that 

the “rules of the forum are applied . . . to determine whether an 

abandonment has taken place” is inapplicable in ICWA cases. 

SECOND RESTATEMENT § 22 cmt. e. Instead, the rules applied in 

ICWA cases are simply the rules from the Second Restatement itself 

as I have set forth in this dissenting opinion. This is so because 

Holyfield requires a uniform federal law of domicile in ICWA cases. 

For that reason, the Holyfield court similarly concluded that because 

Congress could not have intended for different rules of domicile to 

apply simply as a result of an Indian child’s transport from state to 

state, “the generalrule [from the Second Restatement] that domicile 

is determined according to the law of the forum can have no 

application here.” 490 U.S. at 46 n.21 (citation omitted). Because 

domicile can turn on abandonment, the abandonment inquiry must 

also be conducted on a uniform federal basis, not according to the 

rules of the forum.

¶98 Second, I agree with the Illinois Supreme Court that “the 

doctrine of abandonment cannot be used by Native American 

______________________________________________________________________________

29 Appellants R.K.B. and K.A.B. rightly point out that ICWA 

requires the application of state law if the relevant state law 

provides a higher standard of protection of parental rights to an 

Indian child than those provided under ICWA. See 25 U.S.C. § 1921. 

This “ensur[es] that parents of Indian children enjoy the highest 

level of protection of their parental rights available.” In re Adoption 

of B.B., 2017 UT 59, ¶ 67, 417 P.3d 1. R.K.B. and K.A.B. argue that 

Utah state abandonment law should apply here if that application 

would result in greater protection of Birth Mother’s rights, such as 

her right to have the consequences of a voluntary relinquishment 

explained to her under section 1913(a), her right to withdraw her 

consent to adoption at any time prior to the entry of a final decree 

under section 1913(c), and her right to object to transfer to a tribal 

court under section 1911(b). These arguments are totally misplaced, 

however, because a finding of abandonment for purposes of 

establishing an Indian child’s domicile doesn’t affect Birth Mother’s 

parental rights under ICWA. Infra ¶¶ 128–32.
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Himonas, J., dissenting

41

Indian parents as part of a scheme to facilitate adoption of their 

children by non-Indians while they remain domiciliaries of the 

reservation.” In re Adoption of S.S., 657 N.E.2d at 942. This exception 

aligns with our decision in Halloway, in which this court expressed 

that Utah’s abandonment law “conflicts with and undermines the 

operative scheme established by [section 1911(a)] to deal with 

children of domiciliaries of the reservation and weakens 

considerably the tribe’s ability to assert its interest in its children” 

if it “operates to permit [a parent] to change [a child’s] domicile as 

part of a scheme to facilitate [the child’s] adoption by non-Indians 

while [the parent] remains a domiciliary of the reservation.” 732 

P.2d at 969. It also fits the United States Supreme Court’s decision 

in Holyfield, which cited Halloway favorably and concluded, “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.” 490 U.S. at 53. Because I 

ultimately conclude that exclusive jurisdiction lies with the 

Cheyenne River Sioux tribal court, see infra ¶ 137, I need not 

consider this exception here.

III. BIRTH MOTHER ABANDONED B.B.

¶99 I next turn to the issue of whether Birth Mother abandoned 

B.B. under the uniform federal standard of abandonment. I agree 

with the majority that Birth Mother was domiciled in Utah when

the adoption petition was filed.30 Below, I show that Birth Mother 

had abandoned B.B. for the purposes of domicile by the time the 

adoption petition was filed. Then I show why, under the 

Restatement standard, the majority errs by holding that B.B.’s 

domicile didn’t shift to that of his father before the filing.

______________________________________________________________________________

30 I note, however, that Birth Mother submitted an affidavit in 

the district court after this appeal was filed that cuts against that 

finding. She testified in the affidavit that “she went to Utah to have 

the baby because [she] did not want anyone interfering with [her] 

choice of putting [her] son up for adoption,” that “she told people 

[she] was going to Utah for other reasons, but the adoption was the 

actual reason,” and that she “intended to return to South Dakota 

after placing [her] son for adoption.” But I don’t consider this 

affidavit on appeal because it’s not part of the appellate record, was 

unavailable to the district court when making its decision, and 

hasn’t been brought to our attention by the parties.
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

42

A. Birth Mother Gave Up Custody of B.B. with 

the Intention of Relinquishing Her Parental Rights

¶100 Whether Birth Mother gave custody of B.B. to another 

with the intent to relinquish her parental rights is a question of fact 

that this court reviews for clear error. See Fort Pierce Indus. Park 

Phases II, III & IV Owners Assoc. v. Shakespeare, 2016 UT 28, ¶ 16, 379 

P.3d 1218. The district court found that “Birth Mother abandoned 

B.B. as that term is used in . . . the Restatement (Second) of Conflict 

of Laws § 22 Comment e.” Because I find ample support for the 

district court’s factual findings in the record, I conclude that the 

district court’s findings were not clearly erroneous.

¶101 The district court found that Birth Mother had 

abandoned B.B. for three reasons: (1) “Birth Mother, prior to B.B.’s 

birth, intended to relinquish all parental rights and obligations”; 

(2) “just over 24 hours after birth she formally relinquished her 

parental rights”; and (3) “she then came into Court a few days later

to again relinquish her parental rights—executing the consent to 

adoption in court.” The district court also found that Birth Father 

was domiciled on the Cheyenne River Sioux Reservation when the 

adoption petition was filed. That’s why the district court found that 

B.B.’s domicile at that time was the Cheyenne River Sioux 

Reservation.

¶102 To support a finding of abandonment under the Second 

Restatement, Birth Mother must have either (1) deserted B.B. or 

(2) given custody of B.B. to another with the intention of 

relinquishing her parental rights and obligations. Neither party 

asserts that Birth Mother deserted B.B.; nor did the district court 

make any factual findings on that question. So, I review the district 

court’s findings only as to the second type of abandonment—

whether Birth Mother gave custody of B.B. to another with the 

intent to relinquish her parental rights before the adoption petition 

was filed. She unquestionably did so.

¶103 First, Birth Mother gave up custody of B.B. before the 

adoption petition was filed. Although the district court’s ruling 

does not directly discuss whether Birth Mother had given up 

custody of B.B. by the petition’s filing, the parties agree—and the 

record supports a finding—that Birth Mother had indeed done so. 

And when asked at oral argument, appellants R.K.B. and J.K.B.

confirmed that they had taken physical custody of B.B. before the 

filing. This is also corroborated by the transcript of a hearing on the 

adoption petition held after the filing, in which the judge remarked 

that R.K.B. and J.K.B. had “a beautiful little [baby] with [them] [that 
Cite as: 2020 UT 53

Himonas, J., dissenting

43

day],” showing that B.B. arrived to court that day with R.K.B. and 

J.K.B. So although the district court didn’t make an explicit finding 

of fact about whether Birth Mother gave up custody of B.B. before 

the filing of the adoption petition, neither party disputes this fact 

and the record evidence supports such a finding. I thus conclude 

that Birth Mother had given up custody of B.B. by the time the 

adoption petition was filed.

¶104 Second, the district court didn’t clearly err in finding that 

Birth Mother intended to relinquish her parental rights. Birth 

Mother formed the intent to place B.B. for adoption months before 

delivery. At her deposition, Birth Mother said that she first decided 

to place B.B. for adoption “probably a couple months into the 

pregnancy . . . like two, three months into the pregnancy.” She also 

said that she first contacted the adoption agency, Heart to Heart, 

four to five months before B.B.’s birth.

¶105 Birth Mother not only formed an intent to place B.B. for 

adoption, but she also followed through on that intent soon after

B.B.’s birth. Just twenty-four hours after B.B.’s birth, Birth Mother 

signed a notarized document titled “Relinquishment of Parental 

Rights and Consent of Natural Birth Mother to Adoption.” Both the 

introductory and concluding paragraphs of that document provide 

that “[b]y signing this document you are giving up your rights as a 

parent” and that “[y]ou cannot revoke the consent to your child’s 

adoption once you sign this document.” And the last line item that 

Birth Mother initialed states, “I understand that if I choose

adoption for my child and sign the relinquishing papers, all my 

rights and responsibilities for this child will be ended, and that my 

consent is final, irrevocable and legally binding.” The consent to 

adoption also states, “I, [Birth Mother] do hereby relinquish and 

surrender said child for adoption to: Heart to Heart Adoptions.”

Birth Mother initialed every line item and signed the consent to 

adoption.

¶106 To be sure, this consent to adoption would not be legally 

sufficient to terminate Birth Mother’s parental rights under ICWA, 

which prohibits any consent being given within ten days after the 

birth of an Indian child. See 25 U.S.C. § 1913(a). But it’s still highly 

indicative of Birth Mother’s intent to relinquish her parental rights

for the purposes of abandonment. See Holyfield, 490 U.S. at 62 n.11

(Stevens, J., dissenting) (“[E]ven a consent to adoption that does not 

meet statutory requirements may be effective to constitute an 

abandonment and change the minor’s domicile.”); In re Adoption of 

M.L.L., 810 N.E.2d 1088, 1092 (Ind. Ct. App. 2004) (holding that a 

birth mother abandoned her child for purposes of jurisdiction 
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

44

under the Uniform Child Custody Jurisdiction Act when she took 

the child to live with a couple in another state, “signed a consent to 

guardianship and a consent to adopt, and helped them pack [her 

child’s] belongings, including [the child’s] birth certificate and 

social security card”).

¶107 Apparently not content with signing only the consent to 

adoption, Birth Mother also signed a statement about paternity in 

which she fraudulently named her brother-in-law as the biological 

father of B.B. Based on this misrepresentation, Heart to Heart and 

counsel for R.K.B. and J.K.B. had Birth Mother’s brother-in-law sign 

an affidavit declaring that he was B.B.’s biological father, 

relinquishing his rights to B.B., consenting to the adoption, and 

declaring that he was neither an enrolled member of nor eligible for 

membership in a Native American tribe. As we noted in In re 

Adoption of B.B., Birth Mother seems to have had her brother-in-law 

sign the affidavit “in order to make the adoption go faster.” 2017 

UT 59, ¶ 87, 417 P.3d 1.

¶108 Birth Mother’s actions before the filing are sufficient on 

their own to support a finding of abandonment, but her 

postpetition actions confirm that she intended to relinquish her 

parental rights by the time the adoption petition was filed. 

Specifically, Birth Mother, a few days after the filing, appeared in 

court and signed a document entitled “Voluntary Relinquishment 

of Parental Rights, Consent to Adoption, and Consent to Entry of 

Order Terminating Parental Rights.” In this sworn document, Birth 

Mother stated, “I hereby voluntarily relinquish permanently and 

completely all of my parental rights and interests in the 

guardianship, custody, care and control of B.B. to Heart to Heart 

Adoptions.” She also reaffirmed her earlier untrue statement that 

her brother-in-law was B.B.’s biological father and confirmed that 

she understood that, by voluntarily relinquishing her parental 

rights, she would “be relieved of all parental duties, obligations 

and responsibilities” and “have no further rights regarding future 

care, custody, visitation or adoption” of B.B.

¶109 Appellants R.K.B. and K.A.B. argue that this postpetition 

reaffirmation is irrelevant to whether Birth Mother abandoned B.B. 

before the petition. I disagree because the reaffirmation helps 

clarify Birth Mother’s intent before the filing, much in the same way 

district courts may “allow parties to use post-breach evidence to 

establish and measure their expectation damages.” Trans–W.

Petroleum, Inc. v. U.S. Gypsum Co., 2016 UT 27, ¶ 21, 379 P.3d 1200. 

The district court thus didn’t abuse its discretion by considering it.
Cite as: 2020 UT 53

Himonas, J., dissenting

45

¶110 In sum, the record evidence confirms the district court’s 

finding that Birth Mother intended to relinquish her parental rights 

to B.B. by the time the adoption petition was filed.

B. The Majority Errs in Interpreting and 

Applying the Second Restatement Standard

¶111 The majority holds that “giving up custody and signing 

consent forms in order to start the formal adoption process does 

not itself constitute abandonment under the text of the 

Restatement.” Supra ¶ 38. It also holds that B.B.’s domicile did not 

shift to that of his birth father at the time of the filing. Supra ¶ 2. 

That holding is based mainly on a misreading of the Second 

Restatement but also on some faulty assumptions about 

abandonment in the domicile context.

¶112 The proper interpretation of the Second Restatement—

that the domicile of a child born out of wedlock switches to that of 

his father upon being abandoned by his mother—flows from a 

straightforward reading of its text. That’s all that we need because 

the Second Restatement addresses head-on how to determine the 

domicile of a child born out of wedlock. The analysis it provides is 

simple and starts with the general rule in comment c that a child 

born out of wedlock “has the domicil of his mother.” SECOND 

RESTATEMENT § 22 cmt. c. Comment c then points us to comments e

through i for exceptions to this general rule. Id. Two of these 

exceptions merit some discussion here. One kicks in when the child 

born out of wedlock is abandoned (comment e). Id. cmt. e. The 

other comes into play when the child born out of wedlock becomes 

adopted (comment g). Id. cmt. g.

¶113 I discuss comment g below; for now, I focus on 

comment e. Comment e, entitled “abandoned child,” states that a 

“child domiciled with his mother and abandoned by her takes the 

domicil of his father if he has not been abandoned by him.” Id.

cmt. e. What it means to abandon a child is also found in 

comment e: “An abandonment, as the term is used here, . . . occurs 

when the parent deserts the child; it likewise occurs when the 

parent gives the custody of the child to another with the intention 

of relinquishing his parental rights and obligations.” Id.

¶114 These provisions are clear-cut. A child born out of 

wedlock has the domicile of his mother. Id. cmt. c. That means that 

B.B. (a child born out of wedlock) would normally have Birth 

Mother’s domicile. But if the mother abandons the child—if the 

mother deserts the child or “gives the custody of the child to 

another with the intention of relinquishing [her] parental rights and 
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

46

obligations”—the child “takes the domicil of his father if he has not 

been abandoned by him.” Id. cmt. e.

¶115 One crucial question thus determines the outcome of this 

appeal: Did Birth Mother, before the adoption petition’s filing, 

abandon B.B. by giving custody of B.B. to another with the 

intention of relinquishing her parental rights and obligations? The 

answer, as shown above, is unquestionably yes. Supra ¶¶ 100–10.

And, as a result, B.B. took the domicile of Birth Father (the 

Cheyenne River Sioux Reservation), giving the tribal court 

exclusive jurisdiction over B.B.’s adoption proceedings.

¶116 The majority rejects this uncomplicated analysis, 

misreading the Second Restatement. First, it eschews the Second

Restatement’s clear provisions, almost ignoring its key provisions 

while overemphasizing irrelevant ones. Second, it confuses 

abandonment in the domicile context with abandonment in the 

termination-of-parental-rights context. Third, it asserts that if the 

abandonment standard that I endorse “were correct, then the 

parents in Holyfield would have abandoned their children and 

shifted their children’s domicile off the reservation.” Supra ¶ 51.

1. The Majority Misinterprets the Second Restatement

¶117 The majority misinterprets section 22 of the Second 

Restatement in two key ways. First, it errs by concluding “that the 

domicile of a child born out of wedlock will transfer to the domicile 

of the biological father only in limited circumstances—such as 

when he marries the child’s biological mother.” Supra ¶ 26. Second, 

it errs by assuming that abandonment for the purposes of domicile 

doesn’t apply in the adoption context. Supra ¶ 25. These errors are 

intertwined, and so I discuss each of them throughout this section.

¶118 The majority correctly recognizes the general rule for the 

domicile of a child born out of wedlock, which is in comment c. 

Supra ¶ 26. But it doesn’t pay respect to a key exception that 

comment c scoops out of that general rule: the exception for 

abandoned children (comment e). SECOND RESTATEMENT § 22 

cmt. e. The majority discards comment e because it believes that “a

birth mother’s relinquishment of custody and signing away of 

parental rights in the formal adoption context does not amount to 

an ‘abandonment’ because it is not done with the ‘intention of 

relinquishing . . . parental rights and obligations’ immediately or 

unconditionally (let alone with an intent to surrender rights and 

obligations to an unmarried biological father who is not even a 
Cite as: 2020 UT 53

Himonas, J., dissenting

47

party to the adoption).”31 Supra ¶ 25 (footnote omitted) (alteration 

in original).

¶119 Practically speaking, under the majority’s standard, 

whenever an adoption looms in the background, comment e

doesn’t apply and a child’s domicile doesn’t change until an 

adoption is completed—even if a birth mother shows an intent to 

relinquish her parental rights and gives up custody of the child 

before the adoption petition’s filing. Supra ¶ 27 (“[A] mother taking 

a step toward an adoption that is not yet final cannot amount to an 

immediate and unconditional intent to relinquish her parental 

rights and obligations (an abandonment) . . . .”). The majority 

characterizes “birth mother’s surrender of custody and waiver of 

her parental rights and obligations in the context of a formal 

adoption” as “certainly evinc[ing] an intent to eventually turn over 

parental rights and obligations to a specific, state-vetted adoption 

agency or couple.” Supra ¶ 25. But it holds that those actions don’t 

qualify as abandonment because a birth mother doesn’t “intend[] 

to immediately and unconditionally relinquish parental rights and 

obligations—walk away from or ‘abandon’ her child—when she 

chooses to put her child up for formal adoption rather than simply 

leave him at the doorstep, daycare center, or family friend’s home.” 

Supra ¶ 25. By so holding, not only does the majority inject new 

qualifiers into the abandonment standard—“immediately and 

unconditionally”—it also ignores comment e’s directive to examine 

Birth Mother’s “intention” for giving up custody. See SECOND 

RESTATEMENT § 22 cmt. e. Under comment e, if Birth Mother gave 

custody of B.B. to the adoption agency “with the intention of 

relinquishing [her] parental rights and obligations,” she has 

abandoned the child for purposes of domicile. Id. It doesn’t matter 

whether she was successful in relinquishing those rights and 

obligations, as long as she intended to. By signing the 

relinquishment forms here (which provided that “[b]y signing this 

document you are giving up your rights as a parent” and that 

“[y]ou cannot revoke the consent to your child’s adoption once you 

sign this document”), Birth Mother clearly intended to relinquish 

______________________________________________________________________________

31 I don’t advocate that Birth Mother’s abandonment 

relinquished her parental rights to anyone. I’m merely saying that 

she gave custody of B.B. to another with the intention of 

relinquishing her parental rights, thereby effecting an 

abandonment under the Second Restatement, which changed B.B.’s 

domicile (but left her parental rights fully intact).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

48

her parental rights and obligations32—even though she didn’t 

accomplish that goal—and she, to that end, abandoned B.B. for 

purposes of domicile.

¶120 Besides holding that comment e doesn’t apply because 

Birth Mother didn’t abandon B.B., the majority makes it very hard 

for the domicile of a child born out of wedlock to change to that of 

the birth father, even if the birth mother has abandoned the child: 

“[T]he domicile of a child born out of wedlock will transfer to the 

domicile of the biological father only in limited circumstances—

such as when he marries the child’s biological mother.” Supra ¶ 26.

Under the majority’s reading of the Restatement, then, 

abandonment can never change the domicile of a child born out of 

wedlock to that of the birth father. See supra ¶ 36 (declining to apply 

comment e because the comment “starts from a place from which 

we know for a fact B.B. did not—a birth in wedlock” (emphasis 

added)). In the majority’s view, other than the presence of potential 

other unnamed “limited circumstances,” only marriage between 

the child’s biological parents can do so. Supra ¶ 26.

¶121 This interpretation is wrong, given that comment c—the 

comment about the domicile of a child born out of wedlock—points 

to abandonment under comment e as a way for the domicile of a 

child born out of wedlock to switch from that of the mother to that 

of someone else. SECOND RESTATEMENT § 22 cmt. c. Comment e, in 

turn, states that a “child domiciled with his mother and abandoned

by her takes the domicil of his father if he has not been abandoned 

by him.” Id. cmt. e. Read in conjunction with comment c, the 

reference to “father” in comment e logically refers to the father of 

the child born out of wedlock (at least when determining the 

domicile of a child born out of wedlock).

¶122 As supposed support for its conclusion, the majority 

relies first on comments a and c of section 22 of the Second 

Restatement—which are about the domicile of fathers and children 

born out of wedlock, respectively—and then on comment g, which 

is about adopted children. Supra ¶¶ 25–27. I now examine each of 

these comments.

¶123 I turn first to comments a and c. The majority recognizes 

that there are exceptions to when the domicile of a child born out 

______________________________________________________________________________

32 This is strong evidence that Birth Mother even intended to 

“immediately and unconditionally relinquish” her parental rights 

and obligations, if I were to apply the majority’s abandonment 

standard.
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Himonas, J., dissenting

49

of wedlock follows the domicile of the mother. Supra ¶ 26. Indeed, 

comment c announces that “[a]n illegitimate child has the domicil 

of his mother, except as stated in Comments e–i.” SECOND 

RESTATEMENT § 22 cmt. c. Comment c also says that “[u]pon a 

change of domicil by the mother during the child’s minority, the 

child takes the mother’s new domicil whether the child lives with 

the mother or not, except as stated immediately below and in 

Comments e–i.” Id. (emphasis added).

¶124 The majority latches onto the exceptions “stated 

immediately below” and doesn’t let go of them. Supra ¶ 26. There 

are two exceptions listed. First, “[t]he child’s domicil will not follow 

that of a stepfather.” SECOND RESTATEMENT § 22 cmt. c. Second, 

“[a]fter the mother’s marriage to a man who is not the child’s father, 

the child’s domicil will be that of the mother.” Id. The majority 

relies on these exceptions to conclude “that the domicile of a child 

born out of wedlock will transfer to the domicile of the biological 

father only in limited circumstances—such as when he marries the 

child’s biological mother.” Supra ¶ 26. This conclusion, says the 

majority, is reinforced by comment a, which says “that a child born 

in wedlock ‘is assigned the father’s domicil.’” Supra ¶ 26 (citing 

SECOND RESTATEMENT § 22 cmt. a).

¶125 This is flatly wrong. Not only does the majority ignore 

the relevant comment—comment e—neither exception in 

comment c “stated immediately below” applies here. No stepfather 

is involved, and B.B.’s domicile hasn’t changed because of a 

marriage. Although the exceptions imply that children born out of 

wedlock take their father’s domicile upon their father’s marriage to 

their mother, they do not say or imply that the only way for children 

born out of wedlock to take their father’s domicile is for their 

mother to marry him. And, as mentioned above, comment c—the 

comment about the domicile of children born out of wedlock—

incorporates abandonment under comment e, proving that the 

domicile of a child born out of wedlock can change as a result of an 

abandonment. SECOND RESTATEMENT § 22 cmt. c. And comment e

even tells us how the child’s domicile can change upon being 

abandoned by the mother: it switches to that of the father. Id. cmt. e.

¶126 Having discussed comments a and c, I now touch upon 

comment g—the comment about the effect of adoption on a child’s 

domicile. This comment is irrelevant to this case. Comment g

merely tells us the domicile of an adopted child: an adopted child 

“takes the domicil of the adoptive parent” but only at the “moment 

of adoption.” SECOND RESTATEMENT § 22 cmt. g. Discussing 

comment g, the majority asserts that the “shift in [the child’s] 
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

50

domicile does not take place until the adoption is final.” Supra ¶ 27. 

I agree. But here we aren’t concerned about whether B.B. has taken 

the domicile of adoptive parents; he isn’t an adopted child. We care, 

rather, only about whether B.B. took the domicile of his birth father 

before the adoption petition was filed. Halloway, 732 P.2d at 966 

(“[T]he propriety of the trial court’s assumption of jurisdiction 

turns on [the Indian child’s] domicile at the time these proceedings 

were initiated.”). But comment g doesn’t help us decide that issue. 

Under comment g, when an adoption is contemplated for a child, 

that child’s domicile doesn’t flip to that of the adoptive parents until 

the adoption is final. But comment g doesn’t say or imply that—

before an adoption petition is filed—the child’s domicile can’t 

change to that of the birth father, even when an adoption is 

contemplated. It most certainly can. Comments c and e allow that 

to happen through abandonment. SECOND RESTATEMENT § 22 

cmts. c, e. So, comments c and e—not comment g—are the relevant 

provisions here.

¶127 In all its discussion, the majority merely glosses over 

comment c’s reference to comment e—the comment about

abandonment. This, perhaps, is because the majority’s 

interpretation, practically speaking, doesn’t apply comment e’s 

provision on abandonment whenever the abandoning parent 

contemplates a future adoption. Supra ¶¶ 25, 27. That cannot be. In 

defining abandonment, comment e uses language about “the 

intention of relinquishing . . . parental rights and obligations.”

SECOND RESTATEMENT § 22 cmt. e. That language is a term of art that 

repeatedly appears in the adoption context.33 And it makes sense 

______________________________________________________________________________

33 See, e.g., In re Estate of Hannifin, 2013 UT 46, ¶ 13, 311 P.3d 1016

(discussing agreements in which “a child’s parents agree with the 

adoptive parents to relinquish all their rights to the child” (citation 

omitted)); State ex rel. N.M., 2018 UT App 141, ¶ 13, 427 P.3d 1239

(chronicling how a birth mother “advised the court that she wished 

to relinquish her parental rights to Child to allow Maternal 

Grandparents to adopt Child”); State ex rel. E.C., 2015 UT App 227, 

¶ 4, 359 P.3d 1264 (per curiam) (noting that the mother 

“relinquish[ed] her parental rights so that the children could be 

adopted”); State ex rel. J.C.R., 2011 UT App 263, ¶ 3, 259 P.3d 1076

(per curiam) (noting that a father had “confirmed that he wished to 

voluntarily relinquish his parental rights to his children, and 

acknowledged that he would have no further rights regarding the 

children’s future care, custody, visitation, or adoption”); State ex rel. 

(continued . . .)
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Himonas, J., dissenting

51

that adoption-like language appears in a section about 

abandonment and domicile, given that many courts have 

recognized that the actions a parent takes while contemplating an 

adoption can arise to an abandonment, thus changing the child’s 

domicile or otherwise affecting the court’s jurisdiction.34

Comment e thus suggests that abandonment applies in the 

adoption context and that events preceding an adoption petition’s 

______________________________________________________________________________

M.M., 2000 UT App 151U, para. 1 (dismissing a challenge to an 

adoption that alleged that the State “fraudulently misrepresented 

[the birth mother’s] competency to voluntarily relinquish her 

parental rights and consent to her child’s adoption”); In re Adoption 

of J.J., 1999 UT App 362, ¶ 1, 993 P.2d 257 (per curiam) (noting that 

a mother “signed a relinquishment of parental rights believing her 

children would be adopted by . . . relatives”); In re Adoption of Infant 

Anonymous, 760 P.2d 917, 918, 920 (Utah Ct. App. 1988) (holding 

that a consent to adoption—which stated, “I hereby relinquish all 

of my parental rights”—was knowing and voluntary).

34 See, e.g., Halloway, 732 P.2d at 967 (recognizing that “the trial 

court properly could find” that a child’s natural mother abandoned 

him before appearing in court and signing a consent to adoption 

when she “learned that [her child] was in an adoptive home and 

that an adoption was contemplated, yet she permitted him to 

remain there” and holding that “[u]nder traditional rules of law, 

[the child’s] domicile” would’ve changed at that time); In re 

Adoption of M.L.L., 810 N.E.2d at 1092 (holding that a birth mother 

abandoned her child for the purposes of jurisdiction when, before 

the filing of the adoption petition, she requested that others take 

the child “to live with them in [another state], signed a consent to 

guardianship and consent to adopt, and helped them pack [her 

child’s] belongings, including [her child’s] birth certificate and 

social security card”); In re Guardianship of Brazeal, 254 P.2d 886, 887

(Cal. Dist. Ct. App. 1953) (holding that birth parents abandoned 

their child for the purposes of the minor’s residence and 

jurisdiction when they gave custody of their child to another couple

shortly after the child’s birth with the “express understanding . . . 

that they should raise the child as their own child and that the child 

should not be informed as to her true parents” and the birth parents 

urged the couple to legally adopt the child).
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

52

filing can effect a change in the domicile of a child born out of 

wedlock. That’s what happened here.35

2. The Majority Confuses Abandonment in the Domicile Context 

with Abandonment in the Context of Termination of Parental 

Rights

¶128 Besides misinterpreting the Second Restatement, the 

majority jumbles abandonment in the domicile context with 

abandonment in the context of termination of parental rights. It 

holds that the “district court . . . erred in its determination that 

[Birth Mother’s] relinquishment forms in the formal adoption 

context constituted an ‘abandonment’ that resulted in the 

establishment of a perfected legal relationship between the child 

and his unwed biological father (and therefore a change in the 

child’s domicile).” Supra ¶ 30. Similarly, the majority asserts that to 

affirm the district court’s ruling, it would “have to hold . . . that her 

parental rights and obligations revert at the filing of the adoption 

petition to a third party whose parental rights are at best inchoate.” 

Supra ¶ 32. From these statements, it appears that the majority 

believes that if it were to find that Birth Mother abandoned B.B. 

before the adoption petition’s filing, then it would have to hold that 

her parental rights have been terminated and surrendered to Birth 

Father. Not so.

¶129 The majority confuses abandonment—as the term is 

used in the context of terminating parental rights—with 

abandonment as used in the context of establishing domicile. In 

cases that involve the termination of parental rights, the term 

abandonment is used in a pejorative sense and typically serves as a 

proxy for a total abdication of parental responsibilities. See, e.g., 

State ex rel. T.E., 2011 UT 51, ¶ 20, 266 P.3d 739 (“[A] showing of 

abandonment requires satisfaction of a two-part test. First, the 

petitioner must demonstrate that the respondent parent has 

______________________________________________________________________________

35 There are scenarios in which the tribe no longer has exclusive 

jurisdiction. For example, once Birth Mother moved to Utah, she 

became a Utah domiciliary. Because B.B. is a child born out of 

wedlock, he took her domicile (Utah) when he was born. Utah. So, 

if Birth Mother hadn’t abandoned B.B. before the petition’s filing, 

B.B. would’ve been a Utah domiciliary, giving Utah courts 

jurisdiction over the adoption petition. But because she did 

abandon him before the petition’s filing, B.B.’s domicile switched 

from that of Birth Mother (Utah) to that of Birth Father (the 

Cheyenne River Sioux Reservation), giving the tribal court 

exclusive jurisdiction.
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Himonas, J., dissenting

53

engaged in conduct that implies a conscious disregard for his or her 

parental obligations. Second, the petitioner must show that the 

respondent parent’s conduct led to the destruction of the parentchild relationship.” (citations omitted)). In those cases, it makes 

sense that abandonment would carry with it a negative 

connotation. Indeed, courts should not terminate parental rights—

in the absence of a voluntary relinquishment—without first finding 

by clear and convincing evidence that the parent is no longer 

deserving of that constitutionally protected right. See, e.g., In re K.S., 

737 P.2d 170, 172 (Utah 1987) (“The parent-child relationship is 

constitutionally protected, and termination of that relationship is a 

drastic measure to be used only when the evidence is clear and 

convincing that the parent is unable or unwilling to perform the 

duties and responsibilities of a parent.”).

¶130 But no parental rights are being adjudicated here. This 

appeal is purely about domicile and jurisdiction. Despite the 

majority’s characterization otherwise, we’re not deciding the 

adoption petition on the merits. All that’s to be decided today is 

which court gets to adjudicate the parties’ parental rights.36 And so 

our case law discussing abandonment in the context of terminating 

parental rights is generally inapposite here.

¶131 A finding of abandonment for purposes of establishing

an Indian child’s domicile doesn’t affect Birth Mother’s parental 

rights. See supra ¶ 127 n.33. Indeed, courts often decide whether a 

child has been abandoned for purposes of jurisdiction, without 

deciding whether the abandonment terminated the abandoning 

parent’s parental rights. See supra ¶ 127 n.33.

¶132 In sum, a finding of abandonment for purposes of 

domicile is separate from a finding of abandonment for purposes 

of adjudicating parental rights. While the two determinations may

turn on similar—if not identical—sets of facts, a finding of 

______________________________________________________________________________

36 We have done this before. In Halloway, we determined that 

the tribal court of the Navajo Nation had exclusive jurisdiction over 

an adoption proceeding and dismissed the adoption petition for 

lack of jurisdiction. 732 P.2d at 972. After picking up the baton, the 

Navajo tribal court adjudicated the Indian birth mother’s parental 

rights less than one year later. T.R. Reid, Mormon-Navajo Adoption 

Fight Settled, WASH. POST (Oct. 30, 1987), 

https://www.washingtonpost.com/archive/politics/1987/10/30

/mormon-navajo-adoption-fight-settled/21450d04-6b25-467e8e92-c5f5ba11ed6e/?noredirect=on&utm_term=.0829663044d1.
IN RE ADOPTION OF B.B.

Himonas, J., dissenting

54

abandonment in one context does not compel (or even influence) a 

finding of abandonment in the other. For that reason, the majority’s 

assertions that our decision today could somehow impact Birth 

Mother’s parental rights under ICWA are misguided.

3. The Majority Misapplies the Standard That I Endorse Today

¶133 Finally, the majority asserts that, to a certain extent, “[i]f 

the abandonment standard endorsed by . . . the dissent were 

correct, then the parents in Holyfield would have abandoned their 

children and shifted their children’s domicile off the reservation.” 

Supra ¶ 51. That conclusion is incorrect for three reasons.

¶134 First, the Holyfield parents relinquished custody and their 

parental rights at the same time. Holyfield, 490 U.S. at 37. Thus, even 

if they abandoned the children, the children’s domicile would’ve

still been the Choctaw Reservation because the children’s father 

was domiciled there. See SECOND RESTATEMENT § 22 cmt. e (“Except 

as stated in Comments f–i, . . . a child abandoned by both parents

simultaneously retains the domicil of the father at the time of the 

abandonment.” (emphasis added)); Id. cmt. g (explaining that, in 

the context of adoption, a child doesn’t take “the domicil of the 

adoptive parent” until “the moment of adoption”).

¶135 Second, I see nothing in the Holyfield opinion that 

suggests that the parents gave up custody of their children before 

the adoption petition was filed. See Holyfield, 490 U.S. at 37–38. And 

without a transfer of custody, there would’ve been no 

abandonment before filing the petition. See SECOND RESTATEMENT

§ 22 cmt. e (noting that one situation in which an abandonment 

occurs is “when the parent gives the custody of the child to another 

with the intention of relinquishing his parental rights and 

obligations.” (emphasis added)); accord Halloway, 732 P.2d at 966 

(“As a general matter, abandonment occurs when a parent . . . places 

a child with another with an intent to relinquish all parental rights 

and obligations.” (emphasis added)).

¶136 Third, under the standard I endorse today, “the doctrine 

of abandonment cannot be used by Native American Indian 

parents as part of a scheme to facilitate adoption of their children 

by non-Indians while they remain domiciliaries of the reservation.” 

Supra ¶ 98. For that reason, the parents in Holyfield—who were 

domiciliaries of the Choctaw Reservation—could not have used 

abandonment to evade the tribal court’s jurisdiction. The result of 

Holyfield, therefore, would’ve been the same under the 

abandonment standard that I endorse.
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Himonas, J., dissenting

55

IV. WE LACK JURISDICTION

¶137 Having established that B.B. was domiciled on the 

Cheyenne River Sioux Reservation when the adoption petition was 

filed, ICWA prescribes the outcome: the Cheyenne River Sioux 

tribal court has exclusive jurisdiction over this case. 25 U.S.C. § 1911 

(“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 . . . .” 

(emphasis added)). Thus, no Utah state court has jurisdiction and 

the case must be dismissed. See, e.g., Ramsay v. Kane Cty. Human Res. 

Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163.

CONCLUSION

¶138 Under the uniform federal standard of abandonment for 

establishing domicile in ICWA cases, Birth Mother abandoned B.B.

before the filing of this adoption petition. For that reason, B.B. had 

taken the domicile of Birth Father and was domiciled on the 

Cheyenne River Sioux Reservation at the time of filing. Thus, under 

ICWA, the Cheyenne River Sioux tribal court has exclusive 

jurisdiction over this case, and this case must be dismissed for lack 

of subject matter jurisdiction. Because the majority holds otherwise, 

I respectfully dissent.