William H. Rehnquist: We'll hear argument next in No. 87-980, the Mississippi Band of Choctaw Indians v. Orrey Curtiss Holyfield, et ux. Mr. Smith, you may proceed whenever you're ready.
Edwin R. Smith: Mr. Chief Justice, and may it please the Court: Only ten years have passed since this Court's ruling in United States v. John, where the Mississippi courts were attempting to apply state laws to Indians within the territorial jurisdiction of the... of the Choctaw Indian reservation. At stake in that case was not simply the Indian country status of the reservation lands, but ultimately the legal existence of the Mississippi Band of Choctaw Indians as a tribal government. Despite this Court's unanimous ruling in John vindicating the tribe's rights to a separate jurisdiction, now a decade later, Mississippi courts are once again seeking to apply state laws to Choctaw Indians of the Choctaw reservation. At stake this time is potentially not simply the future existence of the Appellant, Mississippi Band of Choctaw Indians, but the future existence of Indian tribes nationwide as identifiable cultural entities. The issues before this Court arose within the context of the state adoption proceeding, a non-Indian white couple from down on the coast petitioned a state court to adopt twin full-blooded Choctaw Indian babies immediately following their birth at an off-reservation hospital. Both the natural mother and the putative father in this case were and still are resident and domiciled on the Choctaw Indian reservation. Quite simply, the mother left for the short period of approximately ten days for the purpose of giving birth, signing over the children for adoption and returning to the reservation.
William H. Rehnquist: Mr. Smith, I'm troubled a little bit by what might be a standing problem here. The only petitioner is the Choctaw Band, isn't it?
Edwin R. Smith: Yes, Your Honor.
William H. Rehnquist: Well, supposing this were a case that didn't involve Indian tribes, but involved people in California, say, getting a divorce from one another and the State of Nevada felt very strongly, since they had been both domiciled in Nevada, that Nevada courts should have had jurisdiction rather than the California courts, do you think the State of Nevada by itself could come before us and say, well, the California courts had no jurisdiction here, they should have done it in Nevada?
Edwin R. Smith: No, sir, Chief Justice Rehnquist. But there is a crucial distinction here in that the standing of the Mississippi Band of Choctaw Indians has been vested by statute, and--
William H. Rehnquist: Well, does the statute say in so many words that the Mississippi Band shall have a standing to raise this sort of a question?
Edwin R. Smith: --The... the statute provides a vested interest in the tribe in the placement of its Indian children, and that is precisely what's at stake here. We're alleging that the children were wrongfully taken from the tribe, and therefore they... they have suffered a wrong. They have suffered an injury.
Antonin Scalia: Well, I suppose you could say the Tenth Amendment gives the State of Nevada a vested interest, too. I mean, does the tribe have any more interest in the ability to apply its laws by virtue of this statute than the states do by virtue of... of our constitutional structure?
Edwin R. Smith: Yes, sir, Your Honor, I believe they do. The distinction would be that the... the Tenth Amendment provides that all powers not vested are reserved to the states. Now, in this particular case the powers were specifically... or the power to regulate Indian affairs was vested by the Constitution in Congress. And Congress, in turn, has by statute conferred a protected interest in the tribe in the future of its children. As the statute says that they are of paramount importance to the future of the tribe itself.
Sandra Day O'Connor: Mr. Smith, I guess the statute in section 1911 says the Indian child's tribe shall have a right to intervene at any point in the proceeding, in a state court proceeding, involving termination of parental rights. Is that right?
Edwin R. Smith: Yes, Your Honor.
Sandra Day O'Connor: And the tribe did intervene pursuant to that statute?
Edwin R. Smith: The tribe filed a motion to dismiss, alleging that the state court lacked jurisdiction over this proceeding. It is our contention--
Sandra Day O'Connor: Is that tantamount to an intervention in the proceeding?
Edwin R. Smith: --Yes, I would say it was tantamount to--
Sandra Day O'Connor: And what was the timing of that motion by the tribe?
Edwin R. Smith: --The motion was filed as soon as the tribe learned that the adoption had gone on through. I think it's--
Sandra Day O'Connor: Was that after the adoption had become final?
Edwin R. Smith: --That was after the adoption became final, but important to this case I think to understand is that even before the children were born, the tribe had become aware that the adoption was going to take place and had notified the proposed adopting couple, as well as their counsel, that there was this federal law that did govern, and that the... the natural mother was resident, domiciled on the reservation, and that therefore 1911(a) would vest exclusive jurisdiction in the tribal court.
Anthony M. Kennedy: Well, how long after the adoption decree was issued by the trial court did the tribe intervene?
Edwin R. Smith: I am not certain, but I believe it was something like three or four weeks. We had... we... the opposing... or the counsel handling--
John Paul Stevens: Wasn't it between January 28 and March 31 or the two months?
Edwin R. Smith: --Yes.
Speaker: Yes.
Edwin R. Smith: We had been making repeated attempts to try and notify opposing counsel and tried to keep abreast of what was going on and were not able to learn until after the adoption was in place. We received a copy of the decree.
Sandra Day O'Connor: Do you think that this Court has appellate jurisdiction of this claim of the tribe?
Edwin R. Smith: Yes, Your Honor, I do. I believe that in many respects this case is a carbon copy of the John v. Mississippi portion of the U.S. v. John case.
Sandra Day O'Connor: I thought the court below just didn't deal with the constitutionality of the statute at all.
Edwin R. Smith: I... I think that it's a matter of interpretation and that there is a lot of guesswork that has to take place on this case as to precisely what the court did and did not do in here. Under one theory they are, in effect, enacting, or they are legislating, the residence and domicile under a new set of rules that they... they adopted for this specific case. And in doing so, they are imputing these rules of residency and domicile to the Choctaw reservation as well to say that they are not residents and domiciliaries of the reservation. To the extent that they try and do this--
Sandra Day O'Connor: Well, I thought the state court was just applying it own state law to determine the domicile of the child. Isn't that what happened, and isn't that a fair reading of what the court below did?
Edwin R. Smith: --I believe, Your Honor, that both readings are consistent, that under... on the one hand, they could have been saying that the rules of residence and domicile are that they have to, one, be physically present within the jurisdiction and, two, that it has to be consistent with the... the expressed intent of the natural mother. And then they are taking these... these two newly fashioned rules, these departures from the previous rule that the State of Mississippi had on residence and domicile, and they are applying them onto the reservation to say quite simply this mother was not a resident and domiciliary.
Sandra Day O'Connor: Well, I thought it was a fair reading of the court opinion that we're being asked to review here, that it was applying a matter... as a matter of state law in Mississippi a determination that this child was domiciled in Mississippi.
Edwin R. Smith: But it is--
Sandra Day O'Connor: And so, I have difficulty knowing how we have appellate jurisdiction. Now, perhaps we could grant certiorari, but it's very difficult for me to understand how we have appellate jurisdiction here. For what's it worth, I share Justice O'Connor's concern.
Edwin R. Smith: --Yes, sir. Because it is necessary in this case to make a determination that these children... or that the natural mother... or note that these children were not residents at law and domiciliaries at law of the Choctaw reservation. And the only way that this could have possibly taken place was to apply these newly fashioned standards onto the reservation to, in effect, expatriate these children, because otherwise 1911(a), I believe is quite obvious, would apply and would make it clear that the state court did not have jurisdiction, which is our contention here. As to the matter of the certiorari jurisdiction, I believe that opposing counsel has failed--
Sandra Day O'Connor: Well, 1911(a) just says that an Indian tribe shall have exclusive jurisdiction over a child custody proceeding involving a child who resides or is domiciled within the reservation.
Edwin R. Smith: --That's correct, Your Honor.
Sandra Day O'Connor: Now you have a child that was born off the reservation, and a state court saying as a matter of state law, it isn't domiciled on the reservation. That's what we have, isn't it?
Edwin R. Smith: That's... that's true, Your Honor.
Sandra Day O'Connor: Yes.
Edwin R. Smith: But I believe that to the... I think that there are two crucial things here. One of them is that that was not the state law up until this particular case. In 1975 the Mississippi Supreme Court said that it was unquestioned that the residence of... of a minor was that of its parent or guardian... of its natural parent. And this was in the In re Watson case. So, first of all, this was a newly fashioned rule, which I think is--
Sandra Day O'Connor: Well, generally speaking we accept the determination of state laws that's determined by the state's highest court. You just want us to say that that's preempted by federal law. I mean, I think it's very difficult for us to say that isn't the state law of Mississippi.
Edwin R. Smith: --We have... we have no dispute with Mississippi's right to create such a law, but we do have a dispute with their right to be able to apply that in a manner such as here to divest the tribe of its rights to adjudicate over these minor children. As far as the certiorari jurisdiction of the Court goes, I would note that the Appellant in his reply brief raised no objection to the certiorari jurisdiction. So, Justice Blackmun, I would... I too am in agreement that the certiorari jurisdiction of this Court would lie in this case.
Sandra Day O'Connor: In your view of... of the federal law, you apparently take the position that an Indian parent who would like to place an... an... that parent's illegitimate child with a non-Indian family would have to permanently leave the reservation to do it and establish domicile outside the reservation. Is that right?
Edwin R. Smith: That's correct.
Sandra Day O'Connor: Do you think that's what Congress intended?
Edwin R. Smith: Yes, I... I believe that Congress intended through this legislation to make it less easy for the state courts to be able to come in and to remove these children from their... from their homes. I think that the legislative history makes it clear that there is a very major problem within Indian tribes.
William H. Rehnquist: What if... what if both parents want their child to be adopted through the state system?
Edwin R. Smith: Then I would maintain that both parents would have to go into that state and legitimately establish residence and domicile. And once they have done that, then they could avail themselves of the state court's jurisdiction in a basis like this.
William H. Rehnquist: Well, how... supposing these people decided to move from the reservation... was the baby born in Gulfport?
Edwin R. Smith: Yes, Your Honor.
William H. Rehnquist: How long would they have had to live in Gulfport in order to be able to have the child adopted through state proceedings?
Edwin R. Smith: The state statutes do not establish any specific time period.
William H. Rehnquist: Well, but I thought... I thought you're suggesting there's some federal rule because of the Indian Child Welfare Act but... that... their intention is apparently not relevant in your view because they obviously wanted the child adopted in the state proceeding. You say federal law prohibits them from doing it unless they've independently established some domicile. Now, is... does the federal principle that you deduce from the statute require some period of residence in Gulfport?
Edwin R. Smith: No, the federal statute doesn't. I believe it would be appropriate for the state to make that determination once they had legitimately gone off reservation with the specific intent to establish--
William H. Rehnquist: Well, these people legitimately... I mean, unless they need some sort of a permit to get off the reservation, they went into Gulfport to have the baby born. The... Gulfport isn't on the reservation.
Edwin R. Smith: --That's correct, but as a practical matter--
William H. Rehnquist: Why doesn't this meet... why... why doesn't their act here meet your test?
Edwin R. Smith: --Because they never left, they never abandoned their residence and domicile on the reservation. They are still residents and domiciliaries... the natural parents are... of the reservation. Under normal common law, the residence of a minor child is that of its natural parent or parents.
William H. Rehnquist: Now, the Mississippi court disagreed with you here at least as to Mississippi law.
Edwin R. Smith: The Mississippi court disagreed and made the departure on this one specific case. Prior to this in all other cases, the Mississippi court has followed that rule.
William H. Rehnquist: But you--
Edwin R. Smith: And virtually all states in the Union do follow that rule.
William H. Rehnquist: --You... you say that the... the parents here would have had... if the have a house on the reservation, they would have had to sell the house and rent a place in Gulfport and establish a home there before they could be... have their child adopted in the state proceedings.
Edwin R. Smith: Yes, Your Honor.
Speaker: Mr. Smith?
Edwin R. Smith: And I don't think that's unreasonable. If you live in a jurisdiction, you're subject to their laws. And the pattern of laws in this country is such that they do impute certain legal statuses to certain situations. In the case of a minor, the pattern of law throughout has invariably been that a minor acquires the residence and domicile of its natural parent. I don't frankly see what the problem is with allowing that to be a federal rule of residence and domicile for purposes of this Act. As far as--
John Paul Stevens: This would be a problem I suppose. You're making... making a jurisdictional argument basically that that court had no jurisdiction. And I know the tribe acted very promptly here. But supposing the children were 15 years old, they could still come in and challenge the adoption under your theory. There's no waiver of a jurisdictional claim like this. I mean, that... that's a tough rule if you have to apply it that far.
Edwin R. Smith: --Yes, Justice Stevens.
John Paul Stevens: And I think that's where your theory takes you.
Edwin R. Smith: I think that that... that is an extreme extension of it, yes.
John Paul Stevens: But... say the tribe didn't find out about this until... the child apparently was not born to married parents. It was an unusual situation. Say the tribe found out about it after the child was three or four years old. They could still have... the tribe would have exactly the same interest.
Edwin R. Smith: I believe--
John Paul Stevens: And you think Congress probably intended that, well, that's just one of those tough situations.
Edwin R. Smith: --Yes, that... that is one of those tough situations. But I believe too that in the majority of cases there would be some other types of supervening factors that would come into play. I think, for example, that there could well be a matter of abandonment that would... would come in and would... would--
John Paul Stevens: But no, it's not what the tribe abandons, but your position is the court... the Mississippi court simply had no power to act. So, that... that decree is basically a nullity because the federal statute says the exclusive jurisdiction right resides with the tribe.
Edwin R. Smith: --Yes.
Anthony M. Kennedy: Does the Indian tribal court have the authority to grant adoptive status to the present parents?
Edwin R. Smith: To the--
Anthony M. Kennedy: To the present adoptive parents.
Edwin R. Smith: --To Mrs. Holyfield?
Anthony M. Kennedy: Yes.
Edwin R. Smith: Yes, it does.
Anthony M. Kennedy: Based on the best interests of the child?
Edwin R. Smith: Yes, that's true. And--
Anthony M. Kennedy: So, if the Indian--
Edwin R. Smith: --[inaudible] were to--
Anthony M. Kennedy: --So... so, it's open to the present adoptive parents to argue that it's in the best interest of the child because of the bonding that has taken place over the last few years, that they should be given custody of the child?
Edwin R. Smith: --Yes, Your Honor. And that certainly would be a factor that would come into play. I feel... I feel that the tribal court, in the event this case were to be--
Antonin Scalia: Let's go back earlier and suppose that the tribal court had had jurisdiction at the outset, and the... and the mother and the... and the putative father both expressed their desire that this child be adopted by these same people who are not Indians and off the reservation. Could the tribal court say we will not allow that adoption simply because these people are not Indians and the child will not be brought up off the reservation... will not be brought up on the reservation?
Edwin R. Smith: --The--
Antonin Scalia: Even those the mother wants the child... the mother says I've lived on the reservation. I know what's it like. I don't want my child to... to be brought up on the reservation. I would like him to be adopted by people off the reservation. Can the tribal court over rule that?
Edwin R. Smith: --The tribal court I believe would follow the preference placement standards of the Indian Child Welfare Act, and if they were able to pass through the various tiers down in their examination... or in the compiling of the evidentiary record, if they could pass down through the various levels of preference to that situation successfully, yes, they could.
Antonin Scalia: But if... if you could find Indians on the reservation who were willing to adopt the child, they would have to say that they must adopt the child, despite the wishes of the child's parents? Well, doesn't the statute require that? The statute says that preference must be given to a member of the Indian child's extended family or a... an Indian foster home or institution in preference to a private placement off the reservation with non-Indians? Isn't that what the statute says?
Edwin R. Smith: Yes, that's in essence what the statute says, but--
Sandra Day O'Connor: So, there's just no way, as a practical matter, that the child would be placed off the reservation with non-Indian parents?
Edwin R. Smith: --I disagree because I believe that the court could work its way through in an appropriate situation. Now, if this were an arbitrary placement with a non-Indian family where, for instance, the facts were very bad or the... the suitability of the non-Indian family was very weak, no, I don't believe that the tribal court would ever approach that. But on the other hand,--
Speaker: xxx.
Edwin R. Smith: --if the... the--
John Paul Stevens: I don't think it's appropriate to predict what they might do. The only question is the tribal court clearly would have the power to say we do not... we are not going to permit this child to be placed in a non-Indian family. It clearly would have that power. It might decide not to do it, but it's clear that the... the mere fact that the natural parents want the child adopted by a non-Indian couple in Gulfport doesn't mean that they will have their wishes prevail in the tribal court.
Edwin R. Smith: --That's true.
Harry A. Blackmun: Mr. Smith, as a matter curiosity, how large is the Choctaw Band in Mississippi now, and are they all clustered around Philadelphia?
Edwin R. Smith: The Choctaw reservation has grown somewhat since the John decision, Justice Blackmun. It is now around 23,000 acres, and I believe it was around 20,000 at the time of the John decision. But they... they are now--
Sandra Day O'Connor: But how many people? You said acres.
Edwin R. Smith: --Yes. How many people? According to a 1981 enumeration of the Choctaw population, there were 4,361. In 1986 there were 4,478, but there is a possibility of an under-count of approximately 150 on the latter number. Of this, one-seventh of the tribe lives off reservation. The other six-sevenths live on reservation. And they are in the... in seven predominant communities that--
Harry A. Blackmun: Say that again. The other six-sevenths is where?
Edwin R. Smith: --Is on reservation.
Harry A. Blackmun: On the reservation?
Edwin R. Smith: Yes. One-seventh off reservation.
Harry A. Blackmun: Are there more in Oklahoma than there are in... in Mississippi?
Edwin R. Smith: I don't really know the answer to that, Justice Blackmun. I think the one thing that might come into play here is that with the Mississippi Band of Choctaw Indians membership, blood quantum requirements are one-half or more degree; and if I'm not mistaken, in Oklahoma it's considerably less, but it's either one-fourth or lower than that. And--
Speaker: The statutory standard is not the best interest of the child?
Edwin R. Smith: --Yes. The statutory standard is the best interest of the tribe... of the child.
Sandra Day O'Connor: Where does it say that? I don't find it in the statute, and I'd be interested to know where you find it in the statute. I... I was looking at 915 and did not see it there.
Edwin R. Smith: Section 1902, Congress hereby declares as the policy of this nation to protect the best interests of Indian children.
Sandra Day O'Connor: Well, it was Congress' policy in adopting the Act. Where does it say that the best interests of the child is the standard to be used by a court or the tribe in placing the child?
Edwin R. Smith: I read it and I infer it through 1902.
William H. Rehnquist: Well, it goes on... 1902 goes on and says the Congress hereby declares that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establish a minimum federal standards for the removal of Indian children. I would think a court looking at that would feel there are several policies there, not just the best interests of Indian children.
Edwin R. Smith: That's true.
Byron R. White: xxx I would think to give Congress' judgment about what the best interests of the Indian child is.
Edwin R. Smith: Yes, it does.
Byron R. White: Yes. Well, I don't think courts have any... have any independent, open-ended authority to, to decide what the best interests of the child is, contrary to what Congress says they are.
Edwin R. Smith: I believe that all of these interests can be read as being compatible with the best interests of the child. And I think that that is one of the problems that Congress is trying to address in this legislation is the fact that the social studies have... have proven that the children who are removed from their Indian homes and Indian environments and Indian culture invariably, as they reach the teenage years, the overwhelm... a disproportionately large number of these children suffer extreme identity problems. The rate of suicide among these Indian children is double what it is children at the reservation. And the incidence of violence and drug abuse and so forth are likewise far in excess with the... with the children who are placed in non-Indian homes as compared with those who are born and reared... are reared on the reservation in an Indian environment. So, I believe that Congress and the legislative history of the legislation shows that there was a thorough inquiry made into this area and that this was a reasoned decision on the part of Congress for the protection of these various interests involved here.
Sandra Day O'Connor: But there is some indication in the legislative history that Congress intended to leave to state law the question of determination of domicile.
Edwin R. Smith: I--
Sandra Day O'Connor: Because it clearly contemplated some proceedings in state courts. It does that expressly in the statute. And there's some indication in the legislative history that Congress was leaving the question of domicile to be determined by state law. Isn't that so?
Edwin R. Smith: --I don't believe so, Justice O'Connor. I... I believe that you get that indication--
Sandra Day O'Connor: It certainly didn't define domicile.
Edwin R. Smith: --Pardon?
Sandra Day O'Connor: It did not choose to define domicile in the statute.
Edwin R. Smith: It did not expressly define... define domicile in the final craft of the statute, but in the--
Sandra Day O'Connor: And the cases cited in the--
Edwin R. Smith: --Initial draft--
Sandra Day O'Connor: --And the cases cited in the House report certainly indicated some satisfaction with the operation of state law on that question.
Edwin R. Smith: --It expressed the satisfaction with the operation of the state laws that applied that accepted the notion that a minor child acquires the residence and domicile of its natural parent. And I believe that that's why they were citing the Wakefield v. Littlelight decision and the Greybull case and the Potowatomy case. As far as the legislative history on this goes, the initial draft of the Indian Child Welfare Act with the section which is comparable now to 101(a) of the Act or 1911 stated... and I'll quote... "For purposes of this Act, an Indian child shall be deemed to be a resident of the reservation where his parent or parents is resident. " And that's in 124 Cong. Rec. , Part 19, at Page 37, 224 of November 4, 1977. So, at least in the very initial draft of this statute, it was very clearly intended by Congress that a minor child would acquire at law the residence and domicile of its Indian parent. And there is nothing in the legislative history elsewhere that ever indicates a conscious decision to depart from this rule. In addition, the legislative history said that it can... in reference to the Wisconsin Potowatomies case and the Wakefield and the Greybull decision, stated that they can form the developing federal and state case law holding that the tribe has exclusive jurisdiction when the child is residing or domiciled on the reservation. And again, all of these cases entailed the application of the rule that a minor would acquire the residence and domicile at law of its natural parent. And in some of these cases, the children were off the reservation and the parents were on reservation, and the court in those decisions did affix the on-reservation residence and domicile to the natural child and did so... and in the process of doing so, they divested the state of its jurisdiction. So, we're not coming in here with a unique or a novel rule of law. We're simply saying that this is an old standard. This is a practice standard in all other states. This has been the practice standard in the State of Mississippi up until this specific case, and I submit that the decision of the Mississippi court was an attempt to divest the tribe of jurisdiction expressly conferred by Section 1911(a) of the Indian Child Welfare Act. It was also an attempt to imply... to apply their standard of law to the reservation and to Indians of the reservation. And I believe and I maintain that this is simply in so many... all too many respects a rehash of the John decision. Mississippi courts are once again trying to divest the tribes of their lawful jurisdiction over their citizens of their reservation. And I submit that this is precluded by the Indian Child Welfare Act, and I believe that this Court has also indicated that it was precluded by the Fisher v. District Court decision. I might note that in the Fisher v. District Court decision, this Court noted such things as the birth of a child off reservation were minimal and that therefore they would be disregarded in determining that the... the reservation did have exclusive jurisdiction. And I submit that the... the simple act... the Mississippi court makes such a big point of these children having... or of this mother having gone to what they call great lengths to give birth to these children off reservation, when the reality is that all children of the Choctaw reservation and approximately 90 percent of the Indian children of this nation are born off of reservation.
William H. Rehnquist: How far is it from Philadelphia to Gulfport?
Edwin R. Smith: Less than 200 miles, I believe.
William H. Rehnquist: I take it they could have picked at hospital at which to give birth closer to Philadelphia than Gulfport.
Edwin R. Smith: Yes, about 50 to 70 miles is the norm.
William H. Rehnquist: Thank you, Mr. Smith. We'll hear now from you, Mr. Miller.
Edward O. Miller: Mr. Chief Justice, and may it please the Court: I'm Edward Miller, counsel for Appellees. The Appellees are four parties: the adoptive parents, the Holyfields, and also the natural Indian parents, both the father and the mother. If I have lapses here, I apologize. My father was buried Monday, and he died Friday night during a conversation with me. So, I've had... It's been a real struggle for me to keep my mind on the right track. Hopefully, I can do that today. I would first like to say that the reason for the ICWA, the Indian Child Welfare Act, was a good one. It was designed, as the preamble states, to prevent the breakup of Indian families. And it was designed also to prevent the involuntary taking of Indian children by non-Indian parents. And the statute recognizes this, and Congress recognized this and... by establishing two proceedings under the Act. Under Section 1911, which surely will be mentioned several more times before this proceeding ends... under 1911, the Indian tribe has exclusive jurisdiction over Indian children who are residing or domiciled on the reservation. The facts are not disputed that the Indian children in this case never resided on the reservation. The Indian mother left the reservation and had these children in Harrison County Hospital, where they were taken subsequent to that by the adoptive parents and they were... entered their petition for adoption.
Sandra Day O'Connor: Well, I take it you concede, however, that the mother never changed her lawful domicile from the reservation. She simply left it to have the children.
Edward O. Miller: That's correct, Your Honor. Now--
Sandra Day O'Connor: And the court below made the issue of domicile turn on a theory of abandonment, I take it.
Edward O. Miller: --That was one of the issues. Yes, ma'am. Justice O'Connor, that was a legal abandonment, which has also been upheld In... in a recent case, an 1986 case, by the Alaskan Supreme Court. And our court found that there was a legal abandonment when the mother traveled to Harrison County and had these children and placed them with adoptive parents. These adoptive parents did not go to the reservation and take... and remove these children from the reservation. The mother went to great lengths to see that these children were born in Harrison County and that they were placed with adoptive parents. This is reiterated by the reaffirmations of the consent which our state court noted and I think which you have copies of. Subsequent to the adoption petition being filed, they reaffirmed their consent... both parents... and also in this reaffirmation stated that they specifically wanted the Holyfields, who are the adoptive parents, to have these children and to adopt these children. And they specifically wanted the state court or the lower state court in Harrison County, Mississippi, to handle this proceeding. Under Section 1911, which is the first section of the Act, it gives the tribal court exclusive jurisdiction over children who are domiciled or residing on the reservation. Number one, the children have never resided on the reservation. And our state court decided in their opinion the definition of domicile. Now, I think it has been incorrectly stated that they completely reversed their position on the issue of domicile in the definition of domicile. And I would like to speak to that briefly. The cases being referred to are a Watson case, which was decided almost ten years ago. In that particular case, in the watson case, the children, minors, were removed from the county of their domicile by a grandparent after their parents were killed in an automobile accident in that county. They were removed and a guardianship was attempted to be open in the county in which the grandparent lived, and the court says you have to go back to where those children and the parents resided. Those children resided in the county with their parents, their natural parents, up until the death of their parents. So, there is no conflict there with our state court opinion. Now, the... the case which followed that was the case of Stubbs v. Stubbs, and in that case, our court set its definition of determining domicile. In... number one, they said that domicile... when we talk about domicile and residence, I think we enter into the area of intent. And the court stated that the intent was very important. So, as their criteria in Stubbs, they said these are the things that we will use to establish domicile. Number one is the physical presence. Number two is the intent, and number three, other facts and circumstances surrounding the particular case. So, when it came to this case, they said that the domicile of the child was the domicile of the adoptive parents, that the mother went great lengths to bring these children to Harrison County and leave them with adoptive parents. Also, they used this other principle, Justice O'Connor, which you have referred to, and that is they voluntarily invoked the jurisdiction of the lower state court. Now, we contend under Section 1913, we have a voluntary proceeding. In... in that regard, Congress... if Congress had not wanted Indian children to be adopted By anyone other than Indian parents, they could have stated in one sentence our intention is that Indian children in no circumstances are to be adopted by non-Indian parents. Congress did not--
Sandra Day O'Connor: Well, Mr. Miller--
Edward O. Miller: --Yes, ma'am?
Sandra Day O'Connor: --What Congress did say in Section 1915 was that in any adoptive placement of an Indian child under state law, a preference shall be given, in the absence of good cause to the contrary, to placement with a member of the child's extended family, other members of the Indian child's tribe and other Indian families. Now, presumably that section is binding on even the state court. Isn't that so?
Edward O. Miller: Yes, ma'am, I would say so.
Sandra Day O'Connor: And did the state court here follow that preference?
Edward O. Miller: Justice O'Connor, they did not because they looked at the part which deals with the good cause. The good cause was the parents' being adamant about these children be adopted by the Holyfields and bringing these children to Harrison County and invoking the jurisdiction of this court. They were actually petitioners in this case. The adoptive parents were not the only petitioners. All four, the adoptive parents and the natural parents, were petitioners in this case.
Antonin Scalia: Well, Mr. Miller, whether you're under this... this Indian law or not, whether you're an Indian or not, it's... it's simply not the case that if you choose not to keep a child yourself, you have the right to place that child where you like. I mean, it is... when you decide you want the child adopted, the state can say where that adoption will be, can it not?
Edward O. Miller: Yes, sir, that's correct. I would certainly think that it would be, Your Honor, because if we were to say to an Indian woman or an Indian father that you are not able to allow these children to be adopted by persons other than non-Indians and you're not allowed to invoke the jurisdiction of the court in the state within which you live, then I think we would be denying to an Indian woman the rights that all other women enjoy.
Antonin Scalia: Well, but the statute clearly says that with... with respect to... with respect to a married couple on the Indian reservation, for example, even if they had a child off the reservation, there is no doubt where the child's domicile would be. On would that be an abandonment too? Could you... could a married Indian couple put up... decide they will have the child off the reservation and offer it to parents off the reservation and say we're abandoning the child? I suppose--
Edward O. Miller: Well, that is a good question, Justice Scalia.
Antonin Scalia: --That would put a big hole in the statute, wouldn't it?
Edward O. Miller: I agree it would. However, I think Section 1911 goes back and takes care of that problem. And the statute says under Section 1911 for any child who is resided or domiciled on the reservation. In this case at hand, this is not the case. In the instance that you're speaking of, I believe... or maybe I'm inferring it from your comments... the children would have resided at some point in their life on the reservation.
Antonin Scalia: No, I'm talking about the same situation as we have here except that the Indian couple are married, as opposed to what was the case here that they were not.
Edward O. Miller: I don't think that that would change it, Your Honor.
Antonin Scalia: It wouldn't change it. I agree.
Edward O. Miller: In my opinion.
Harry A. Blackmun: Mr. Miller, when I practiced law 100 years ago and got in the adoption courts now and then, private placements were definitely frowned upon. Is that true in Mississippi?
Edward O. Miller: No, sir, it is not. It is not.
Anthony M. Kennedy: Isn't there substantial law to the effect that on abandonment, the child takes the domicile of the parent?
Edward O. Miller: The adoptive parent or the persons with whom it's--
Anthony M. Kennedy: The natural parents.
Edward O. Miller: --Oh, Your Honor, not to my knowledge. This, this legal abandonment in this particular case, in Alaskan case--
Anthony M. Kennedy: So, the abandonment... whenever there's an abandonment, the child takes the domicile of the place where the abandonment takes place?
Edward O. Miller: --That's correct according to our court and according to Alaska's Supreme Court in an '86 decision which is mentioned in--
Anthony M. Kennedy: The restatement is contrary, is it not?
Edward O. Miller: --Well, I think that--
Anthony M. Kennedy: Restatement on Conflicts?
Edward O. Miller: --Yes, sir, I would think. However, the legal abandonment is one of the exceptions to domicile, or the common law definition of domicile which is the domicile of the parent being in this case the natural parent would be the domicile of the child. And that was recognized by the Alaskan Supreme Court in a 1984 or 1986 decision, which we've submitted in our briefs. And again, this was a voluntary proceeding, and I wanted to touch on Section 1913. Section 1913 sets forth certain criteria which the court... and I would anticipate a state court because I infer from reading that that... it mentions state courts, and I would infer that there is concurrent jurisdiction with both the tribal court and the state court. And Congress sets forth in that Act or that section of the Act, 1913, certain criteria which has to be met in order for the adoption to be valid. And I might also state an Alaskan case which I was referring to, Section 1911, that court stated that there is a distinction between 1911 and 1913 and that 1911 does not refer to adoptions, merely child custody cases. Section 1913 is the only section that refers to the adoptive placement of children. And this is the section which we followed. And our state supreme court stated that they felt the lower court followed the... the minimum requirements required by standard law. This was not an attempt by any means to usurp or to bypass or to find a loophole in the Indian Child Welfare Act. This was not an attempt to involuntarily take Indian children from a reservation and place them in the custody of non-Indians. This was a case where the mother and father sought adoptive parents out. These children were born in Harrison County. The mother went to great efforts to see that they were and then placed with these non-Indian parents. We feel that this is a voluntary proceeding. We feel that we have compiled with Section 1913. And if you notice, there is a safeguard that Congress gave us in 1913, or gave Indian parents. In Section 1913--
William H. Rehnquist: Where is Section 1913? Is it in the petition for cert? Do you know where it is in the briefs? It's in the supplement to your brief.
Edward O. Miller: --It's in the supplement [inaudible]... Justice Scalia.
William H. Rehnquist: The... okay. Go ahead.
Edward O. Miller: In Section 1913, there is a safeguard even in the voluntary proceeding. And this safeguard is that if at any stage of the proceeding the natural parent objects before the final decrees have been entered in this cause, the court, being the state court, must immediately transfer the custody of that child back to the Indian parent. So, there are even safeguards within Section 1913 which is a voluntary proceeding.
Antonin Scalia: They... they don't trump the... the requirement as to which courts have jurisdiction. As I understand them, they apply even when the state court has proper jurisdiction. Right?
Edward O. Miller: That's correct.
Speaker: All right.
Edward O. Miller: That's correct, Justice Scalia.
Antonin Scalia: You're not asserting that... that it--
Edward O. Miller: No, sir. No, we're asserting that if these--
Antonin Scalia: --You're just pointing out that there are protections for the... for the Indians--
Edward O. Miller: --For the Indian parents to prevent this breakup which the Act was designed to prevent. In other words, under that voluntary section, the state court can transfer... and... and the Act says they must transfer... the children back to the Indian parent if during that proceeding and prior to the entry of the final decree they change their mind, for no reason. And after the decree has been entered and the children have been... the adoption decree has been granted, they still have up until two years after the entry of decree a chance to come back and allege fraud or duress. That has not been done.
Byron R. White: --What is it... do I... I take it you submit that 1911 has nothing to do with this case?
Edward O. Miller: Your Honor, I'll be quite truthful with you. I'm not sure.
Byron R. White: Well--
Edward O. Miller: And the reason I say that is--
Byron R. White: --I thought you said that 1911 just didn't even refer to adoptions and I thought you meant that--
Edward O. Miller: --Yes, sir.
Byron R. White: --that... it's beside the point, then, in this case.
Edward O. Miller: Well, I would have to... I would have to take that position--
Byron R. White: Well--
Edward O. Miller: --because, number one, we would--
Byron R. White: --But you just... you seemed to give it away just a minute ago. You seemed to agree with Justice Scalia that... that... these provisions in 1913 didn't trump the exclusive jurisdiction of the tribe.
Edward O. Miller: --Well, okay, Your Honor. I think up until the time they assumed the jurisdiction. I think once the jurisdiction was assumed, that the... the... the proceeding could continue through the state court.
Byron R. White: Well, what about... if you're right, of course, then there's nothing in 1911 that would give the tribe exclusive jurisdiction over the adoption of children that are Indian children that are born on the reservation.
Edward O. Miller: Well, again, I was quoting the Alaskan Supreme Court, but you're making a very good point. It does not speak to adoption. It speaks to the child custody. It speaks to both of those in Section 1913. But again, I still think even under the adoption proceeding under 1913, the parent has a right to change his or her mind and to enter an objection. And... and according to the Act, the court must transfer it immediately back to the tribe.
Byron R. White: What do you think the rule is if a... when there's an adoption proceeding in the tribal court on the reservation? Can the tribal court agree to an adoption by non-Indian... by non-Indians off the reservation?
Edward O. Miller: I would think that they could, but I think there is a preference list which would have to be followed.
Byron R. White: Well, but that's... that's... the preference list refers to... refers to adoptions under state law and any adoptive placement of an Indian child under state law.
Edward O. Miller: Yes, sir.
Byron R. White: Well, what about an adoption under tribal law? Does this... does this preference list apply there?
Edward O. Miller: I would think that it would, Your Honor. And... and the reason I would answer that in that... in that manner would be that because of the Indian Child Welfare Act, it would... it would be required in a tribal proceeding. These children are three years old. They've been with these parents since they were a few days old. I think someone suggested a bonding. I believe Justice Kennedy, and I certainly think a bonding has taken place here. And I might add there was a real concern here that both of these children would be placed in the same home. These are twins. These are twin... this is a twin boy and girl. And there was some concern that they could be placed in a home... in the same home.
Sandra Day O'Connor: How old are the children now?
Edward O. Miller: The children are three years old, Justice O'Connor, on Jan... on December 29 of 1988.
John Paul Stevens: Mr. Miller, can I go back a minute to the relationship between 1911 and 1913?
Edward O. Miller: Yes, sir.
John Paul Stevens: Nineteen eleven relates to child custody proceedings.
Edward O. Miller: Yes, sir.
John Paul Stevens: And was one of the arguments you make that this is not a child custody proceeding? The child custody proceeding is generally ancillary to a divorce or something of that kind?
Edward O. Miller: Ancillary to a divorce and probably to an involuntary termination of parental rights, which Section 1912 is devoted to.
John Paul Stevens: And that's not... this is not involuntary. This, of course, is a voluntary--
Edward O. Miller: Yes, sir, that's correct.
John Paul Stevens: --So, you're... what you're saying is that 1913 is the governing statute in this case--
Edward O. Miller: Yes, sir.
John Paul Stevens: --which is quite a different theory than the Mississippi court. And... and 1913 by its terms really assumes that there will state... be state court jurisdiction of some of these cases, doesn't it?
Edward O. Miller: That's correct, Your Honor.
John Paul Stevens: So that if it's a... if it's an adoption proceeding, it cannot... you cannot read 1911 as having exclusive jurisdiction... the tribe having exclusive jurisdiction of all cases or else you'd have no room for 1913 to operate.
Edward O. Miller: Well, I think there is a little confusion there. I think there is a little confusion. In the Alaskan--
Byron R. White: Well, 1911 just applied to... to children that are... that are domiciled on the reservation.
Edward O. Miller: --Yes, sir, or residing. That's correct, sir.
Sandra Day O'Connor: Well, that isn't correct, is it? Under Subsection B it says that an Indian child not domiciled or residing within the reservation of the tribe, that the state court will transfer the proceeding to the jurisdiction of the tribal court on request of the parent or the tribe.
Edward O. Miller: That's correct. And it further says, Justice O'Connor... if you continue, it says absent objection by either parent. So, if the... if the state--
Sandra Day O'Connor: Your position here is the parents have objected in effect to that.
Edward O. Miller: --Well, they specifically stated that in their reaffirmations of consent. They said they specifically object to the transfer of the matter to the tribal court.
Sandra Day O'Connor: Yes, but it does mean that Section 1911 applies in state court proceedings--
Edward O. Miller: Yes, ma'am.
Sandra Day O'Connor: --to children not domiciled on the reservation.
Edward O. Miller: Yes, ma'am. That's correct.
John Paul Stevens: Yes, but only in state court child custody proceedings, not necessarily adoption proceedings.
Edward O. Miller: Well, there again, the Alaskan Supreme Court in an '84/'86 decision drew this distinction. I'll be truthful with you, Your honor. I don't know. I guess We--
John Paul Stevens: Well, I suppose that's what we're here to decide.
Edward O. Miller: --Yes.
John Paul Stevens: It's a federal statute, isn't it?
Edward O. Miller: But I was not sure we were here to decide on that issue. I think a child custody case and an adoption proceeding can... are very similar.
John Paul Stevens: Yes, they're very similar. But 1913, as I read it, certainly contemplates that there would be some adoption proceedings over which a state court would have jurisdiction.
Edward O. Miller: Yes, sir.
John Paul Stevens: Unless one reads 1913 as applying only to Indians who don't live on reservations.
Edward O. Miller: Yes, sir.
John Paul Stevens: And I don't think that's a natural reading of that section.
Edward O. Miller: No, sir. I don't either.
Speaker: Now, wait a minute. Does... does 1913 say adoption? Does it use the term "adoption"? I don't think it does.
Edward O. Miller: Yes, sir, it does, Your honor.
Antonin Scalia: Where? It says termination of parental rights... oh, it does say "or adoptive placement of". I see.
Edward O. Miller: Yes, sir.
Antonin Scalia: Whereas 1911 does use termination of parental rights but not adoptive placement, just foster care placement.
Edward O. Miller: That's why we proceeded, Your Honor--
Antonin Scalia: It's a mess.
Edward O. Miller: --and we would... we would suggest to you that we proceeded under Section 1913.
William H. Rehnquist: Section 1903 is the definitional section, and it says child custody proceeding, using that term in quotes, shall mean and include... down in the Roman numeral... adoptive placement which shall mean the permanent placement of an Indian child for adoption including any action resulting in a final decree of adoption.
Edward O. Miller: Yes, sir. And I mentioned--
Speaker: xxx.
Edward O. Miller: --Yes, sir. And that was a very good question by Justice Stevens. And again, I... I was a little confused. I should have been better prepared, Your Honor. I apologize. Again, this was a case in which non-Indian parents did not go on to a reservation and remove these children. It was a case where the Indian father and Indian mother came to Harrison County and went to great efforts to see that these children were adopted by the Holyfields. And we again would... would suggest that this was a voluntary proceeding. They proceeded under Section 1913. They followed the guidelines. As the supreme court of our state said to the lower court, they said they have followed the minimum federal standards. And we feel at this time these children have been with the parents for three years. We feel like we've compiled with the law. We do not attempt... the parents did not attempt to usurp this Act or to get around this Act. But we do feel that Congress, when it enacted it, certainly conceived and thought that there would be instances where these children would be adopted through our state courts. And this was one of those cases. And we feel that we're not in conflict and this was a... we feel that our state law and our... our Act, the ICWA, is not in conflict with each other. And we also feel like that... that the tribe lacks standing. The one person... the parents... the only persons we feel that would be adversely affected by this Act would be the natural parents themselves. And these children are eligible for membership at this time because they are full-blood Choctaw Indians. That... that does not change or this case would not change that. And they will be eligible for membership for the rest of their lives. At any time they can receive full membership in this Choctaw tribe. And the adoptive parents would certainly not deny that. I'm finished unless you have further questions.
William H. Rehnquist: Thank you, Mr. Miller. The case is submitted.