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...own. Unemployed and not able to raise the twins herself, she turned to her family and other Choctaws on the reservation where she resided. Although her aunt offered to adopt one of the twins (the girl), (2) no one was able or willing to take both children. Reluctant to separate the twins, Jennie, now seven months pregnant, continued her search for an adoptive family.
Orrey Curtiss Holyfield, a Methodist minister, and his wife, Vivian Joan ("Joan"), had been trying to adopt for some time but had been repeatedly rejected by licensed adoption agencies because of their advanced age and Orrey's poor health. (3) At their attorney's suggestion, they decided to pursue an independent adoption--one in which the birth parents place the child directly with the adoptive family with the help of an attorney, doctor, or clergy official rather than through a licensed agency. (4) The Holyfields put the word out, and on Joan's forty-fifth birthday, a member of their church and teacher on the Choctaw reservation called to ask if they were interested in adopting Choctaw twins. They immediately said yes.
This Article uses the Supreme Court's seminal opinion in Mississippi Band of Choctaw Indians v. Holyfield, (5) best known for its affirmance of tribal sovereignty over adoptive placements of tribal children, to explore questions of racial and cultural identity and the meaning and role of race in adoptions. The Article proceeds in three parts. Part I focuses on the story behind the Supreme Court's decision as recounted by Joan Holyfield and the attorneys who represented the Holyfields, the Mississippi Band of Choctaw Indians (the Tribe), and the children. Specifically, Part I explores how Jennie's decision to place her children with the Holyflelds, a non-tribal, Caucasian family, led to a four-year litigation involving the Mississippi state courts, the U.S. Supreme Court, and the Choctaw Tribal Court. It analyzes the Supreme Court's interpretation of the Indian Child Welfare Act and its determination that tribal interests can trump individual tribal parents' interests in selecting an adoptive family for their children. This Part also examines the Choctaw Tribal Court's attempt to balance children's best interests against tribal interests.
Part II attempts to shed light on some of the most difficult questions faced by race and family law scholars. Drawing on Holyfield and its progeny, this Part explores how society and the law have defined race and examines how these definitions have changed over time. It then compares the law's treatment of non-Indian children with its treatment of Indian children in the context oftransracial adoption. (6) Part III briefly concludes and poses questions for future discourse.
I. TRIBAL INTERESTS AND PLACEMENTS OF TRIBAL CHILDREN
A. Parental Autonomy Prevails: The Mississippi Courts' Decisions
Once the Holyfields agreed to adopt her twins, Jennie left the Choctaw reservation and moved to the Holyfields' home in Long Beach, Mississippi, some two hundred miles from the reservation. Jennie's reasons for staying with the Holyfields were twofold. First, she wanted to get to know the family that would be raising her children. Second, Edward Miller, the Holyfields' attorney, had advised them that under the Indian Child Welfare Act of 1978 (ICWA), (7) the federal law governing adoptions and foster care placements of Native American children, state courts lacked jurisdiction to hear adoption petitions involving Native American children who resided on or were domiciled on a reservation. (8) State courts could, however, hear cases involving Native American children not residing or domiciled on a reservation. Since Jennie and the Holyfields wanted a Mississippi state court to grant the adoption, Jennie needed to leave the reservation.
In order to understand the reasons underlying ICWA's enactment, it is necessary to examine the unique legal status of Indian tribes in the United States. Indian tribes lived as independent, sovereign nations in the territories that are now known as the United States long before European settlers arrived in North America. (9) Although divested by conquest of the external attributes of sovereignty, such as the right to enter into treaties with other nations, Indian tribes retain their right of internal sovereignty--the right to make their own substantive law in matters of local self-government. (10) This authority derives from each tribe's original status as a sovereign entity and thus, predates the U.S. Constitution. (11) The U.S. Constitution, however, limits this authority by granting Congress plenary power to legislate on behalf of Indian tribes. (12)
The Supreme Court has long held that, as "distinct, independent political communities," (13) Indian tribes have sovereign authority to regulate the conduct of their members--including adoptions of tribal children--without state interference. (14) Congress codified this precedent by enacting ICWA in 1978. (15)
In the 1970s, Senate hearings preceding ICWA's enactment revealed that child welfare workers, most of whom were not Indian and had little or no knowledge of Indian cultural values, had unjustifiably removed thousands of Indian children from their families and tribes and placed them in non-Indian homes and institutions. (16) As a result, twenty-five to thirty-five percent of all Indian children had been permanently removed from their birth families. (17) In Minnesota, for example, from 1971 to 1972, nearly twenty-five percent of all Indian children under the age of one were placed for adoption and ninety percent of these children were placed with non-Indian families. (18) The Senate hearings, and ultimately ICWA, focused on the harm to the tribes, Indian parents, and Indian children resulting from the massive removal of Indian children from their homes. (19) The Chief of the Mississippi Band of Choctaw Indians testified in the 1978 Senate hearings that "culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People." (20) ICWA's sponsors similarly expressed concern that the removal of Indian children from tribal communities threatened tribal existence, stating that ICWA was "directed at conditions which ... threaten ... the future of American Indian tribes." (21)
Several experts' testimony focused on the harm experienced by Indian children themselves. (22) According to these child development experts, some Indian children raised in white homes developed "white" identities with no correlative understanding of Indian culture. (23) When these children reached adolescence, they learned that the community they considered their own did not accept them as white. (24) They became aware of the derogatory terms used to describe Indians and discovered that some white parents objected to Indians dating their white children. (25) In some cases, this rejection led to social and psychological adjustment problems during adolescence. (26)
In enacting ICWA, Congress further recognized that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." (27) Accordingly, ICWA served as a federal standard governing the removal of Indian children from their families and required placement in adoptive homes that would "reflect the unique values of Indian culture." (28) It demonstrated "a Federal policy that, where possible, an Indian child should remain in the Indian community." (29) However, a decade after ICWA's enactment, state courts continued to disregard its provisions, removing Indian children from their homes at disproportionately high rates and placing them in non-Indian homes. (30)
It is against this background that Jennie gave birth to the twins, who the Holyfields named Megan Beth ("Beth") and Samuel Seth ("Seth"), on December 29, 1985, in a hospital two hundred miles from the Choctaw reservation. Twelve days later, Jennie executed a consent form before the Chancery Court of Harrison County, Mississippi, relinquishing her parental rights. (31) The following day, Windell Jefferson, the twins' putative father, (32) did the same. (33) The Holyfields filed a petition to adopt and less than a month after the twins' birth, the chancellor issued the final decree of adoption. (34) The decree did not mention the children's Choctaw background or ICWA. (35)
Jennie, who had been staying with the Holyfields while she recuperated from childbirth and waited for the final adoption decree, returned to her home on the reservation with her other children, Scotty and Leah. On March 31, 1986, two months after the Chancery Court issued the final adoption decree, the Tribe filed a motion to vacate the adoption on the grounds that it violated ICWA. (36)
Under ICWA, an Indian child's tribe has standing to intervene in termination of parental rights proceedings and to file a petition to vacate an adoption if the proceedings or adoption violate certain sections of ICWA. (37) Preferably, a tribe should challenge an adoption before it is final, but in this case, the Tribe may not have been aware of the Holyfield's petition until after the adoption was final, when it received a courtesy copy of the final adoption decree. (38) ICWA does not expressly entitle a tribe to notice in "voluntary cases"--where the parents voluntarily relinquish the child for adoption. (39)
In its petition before the Chancery Court, the Tribe argued that the Holyfields' adoption of the twins violated ICWA's provision granting tribal courts exclusive jurisdiction over adoption proceedings involving an "Indian child" domiciled or residing on the reservation. (40) Under ICWA an "Indian child" is an unmarried person under the age of eighteen who is either "(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (41) Both Jennie and Windell were full-blooded Choctaws and both were enrolled members of the Tribe. (42) As their biological children, the twins were eligible for enrollment in the Tribe and thus were Indian children under ICWA.
The disputed issue was whether the twins were domiciled on the reservation. If they were, the tribal court had exclusive jurisdiction; if they were not, the state courts and tribal courts shared concurrent jurisdiction. (43) A child's domicile generally follows that of the parents, (44) and in the case of a nonmarital child, domicile has traditionally been that of the mother. (45) Since Jennie conceived the twins out of wedlock, under this rule the twins would take her domicile. In order to change domicile, a person must establish physical presence in a location as well as the "intent to remain there." (46) Since Jennie admitted that she left the reservation for the sole purpose of giving birth and always intended to return to the reservation, her domicile never changed; she remained at all times domiciled on the reservation. Consequently, if the twins' domicile followed hers, the tribal courts would have exclusive jurisdiction over any adoption proceedings involving them. The Holyfields, Jennie, and Windell argued, however, that because Jennie voluntarily surrendered the twins at birth they did not take her domicile. They further asserted that since the twins were born outside the reservation and had never been on the reservation, they were never domiciled there. (47) The Chancery Court agreed and held that the Mississippi state courts had jurisdiction under ICWA. (48)
The Tribe appealed to the Mississippi Supreme Court, arguing that, pursuant to the traditional rule of domicile of a nonmarital child, the twins were domiciled on the reservation, and thus the Chancery Court lacked jurisdiction over them. (49) Alternatively, the Tribe argued that the Chancery Court had not complied with section 1915(a) of ICWA. (50) This section provides that, "in the absence of good cause to the contrary," state courts must give preference "to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (51) The Mississippi Supreme Court rejected the Tribe's arguments and held that the twins had never been domiciled on the reservation. (52) In order to distinguish this case from Mississippi cases holding that a minor child's domicile is the same as that of the parents, the court emphasized that, here, Jennie and Windell had voluntarily surrendered the twins to the Holyfields, and Jennie had gone through "some efforts to prevent the children from being placed on the reservation." (53) Furthermore, the twins had never been on the reservation. (54) As to the Tribe's argument that the Chancery Court had disregarded section 19 15(a), the court merely stated that the Chancery Court had complied with the "minimum federal standards" governing the adoption of Indian children. (55)
The Tribe petitioned for certiorari review to the United States Supreme Court. One might wonder why. This was certainly not the first time that a state court had placed an Indian child with a non-Indian family and the tribe had not intervened. (56) Further, because the twins had been living with the Holyfields since birth, it seemed unlikely that the Supreme Court would hear this case. Indeed, when Edwin Smith, the attorney representing the Tribe, approached the Native American Rights Fund about appealing to the Supreme Court, he was told that the Court was unlikely to grant certiorari. (57) In addition, unlike cases where the Indian birth parents regretted relinquishing their parental rights and sought tribal assistance in getting their children back, (58) here, the birth parents sided with the Holyfields. Soon after the Tribe challenged the adoption, Jennie and Windell executed affidavits reaffirming their consent to the adoption and their desire that the twins remain with the Holyfields. (59) Jennie feared that if the Tribe were awarded custody, the children would end up in foster care on a reservation or would be placed in separate foster homes. (60)
So why would a tribe with limited resources, (61) uncooperative birth parents, and children who had bonded with their adoptive parents pursue this case? Recall that a decade after ICWA's enactment, state courts continued to ignore its mandate and repeatedly placed Indian children in non-Indian homes. (62) There are several explanations for this noncompliance. According to testimony before the Select Subcommittee on Indian Affairs, private attorneys were "frequently ignorant of ICWA law or chose not to follow it by instructing clients not to let the State social workers know the Indian heritage of the child up for adoption." (63) Tribes were frequently not provided with notice in involuntary cases (as required by ICWA), and state courts either disregarded ICWA or crafted exceptions limiting tribal rights. (64) Many tribes, including those submitting amicus briefs in support of the Choctaw Tribe, were parties in state court proceedings involving Indian children (65) and experienced widely different outcomes. (66) It was time for the Supreme Court to clarify when state courts could hear cases involving Indian children. Holyfield was not just about the rights of the Mississippi Band of Choctaw Indians to determine who could adopt these two children, but rather, as the amici suggested, (67) it implicated the rights of hundreds of tribes to self-preservation and sovereignty, rights which would be threatened if tribal children, "the only real means for the transmission of the tribal heritage," were legally placed in non-Indian homes. (68)
This still does not explain why this tribe chose to litigate this case. One reason may have been United States v. John, (69) a Supreme Court decision rendered a decade prior. In John, the Court unanimously held that Mississippi state courts lacked jurisdiction to prosecute a Choctaw for a crime committed on the Choctaw reservation. (70) The Tribe hoped that the rejection of state jurisdiction over criminal matters could be extended to imply a lack of jurisdiction over all matters involving Choctaws domiciled on the reservation. (71) Thus, the Tribe believed that the Mississippi Supreme Court was offending tribal sovereignty with its Holyfield ruling and potentially undermining the vigor of John. (72) It feared that if the Holyfield decision were allowed to stand, Mississippi state courts improperly exercising jurisdiction over tribal children would routinely place them in non-Indian homes, (73) thereby providing incentives for non-Indian families from all over the country to come to Mississippi for tribal children. In other words, the Tribe feared that Mississippi would become "a mecca for black marketeers in Indian children," (74) as independent adoption brokers seeking to maximize finder's fees would persuade Indian mothers to give up their children without regard for the interest of the mothers, the children, or the tribes. (75)
The Tribe was also concerned that allowing the twins to be adopted by a non-Choctaw family could compromise its ability to sustain itself. (76) The Tribe's requirements for tribal membership are stricter than those of most tribes. Tribal members must have at least fifty percent Mississippi Choctaw blood; (77) indeed, most enrolled members are, like Beth and Seth, full-blooded Choctaws. (78) As a result of its stringent enrollment requirements, the Tribe's membership is relatively small (less than 5000 members). (79) Not surprisingly, the Tribe believed it had more at stake than tribes with much larger memberships. (80) Specifically, the loss of two full-blooded Choctaws to a non-Indian family would have had a greater impact on the Choctaw Tribe than a similar loss to nations without...
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