concurring in the judgment:
Insofar as neither Justice Harrison nor the dissenters in this case will apply the existing Indian family exception to the Indian Child Welfare Act (ICWA), I concur in the judgment of this court as set forth by Justice Harrison: to wit, that the appellate court should be reversed and this matter remanded to the circuit court for an abandonment hearing to determine where the children are domiciled and thus whether the Illinois courts can retain jurisdiction over this custody dispute pursuant to the ICWA. I write separately, however, to express my view that this court should recognize that the ICWA does not apply where there is no existing Indian family.
Where, as with S.S. and R.S., there is no existing Indian family and the children have never been part of an Indian cultural setting or lived on a reservation, there is no justification for applying the ICWA. It is this rationale that constitutes the existing Indian family exception and Illinois should join the majority of jurisdictions that have adopted the exception and refused to apply the ICWA where children are not part of an existing Indian family. (See In re Adoption of Baby Boy L. (1982), 231 Kan. 199, 643 P.2d 168; S.A. v. E.J.P. (Ala. Civ. App. 1990), 571 So. 2d 1187; In re Termination of Parental Rights of D.S. (Ind. 1991), 577 N.E.2d 572; In re Adoption of Infant Boy Crews (1992), 118 Wash. 2d 561, 825 P.2d 305; In re S.C. (Okla. 1992), 833 P.2d 1249; In re T.S. (1990), 245 Mont. 242, 801 P.2d 77; In re C.E.H. (Mo. App. 1992), 837 S.W.2d 947; In re C.W. (1992), 239 Neb. 817, 479 N.W.2d 105.) Applying the exception in IIlinois would limit the ICWA’s scope to the issue Congress sought to remedy: namely, the attempts of third parties to remove Indian children from existing Indian families or reservations. 25 U.S.C. § 1902 (1988).
The underlying history and purpose of the ICWA evidence that Congress intended the Act to apply only where third parties seek to remove Indian children from their existing Indian families or cultural settings. Congress enacted the ICWA in recognition of the invasive nature of some State agencies vis-a-vis the custody of Indian children on Indian reservations. The intent underlying the ICWA is apparent in the Act’s statement of purpose, which reads as follows:
"to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ***.” (Emphasis added.) (25 U.S.C. § 1902 (1988).)
Indeed, the underlying thread that runs throughout the Act is the prevention of the removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family. (See 25 U.S.C. §§ 1901(4), (5) (1988); see also In re Adoption of Baby Boy L. (1982), 231 Kan. 199, 206, 643 P.2d 168; 168.) Stated otherwise, the ICWA attempts to ensure that, "where possible, an Indian child should remain in the Indian community.” H.R. Rep. 95 — 1386, 95th Cong., 2d Sess. 23 (1978).
In refusing to apply the existing Indian family exception, the dissent argues that the Supreme Court’s decision in Holyfield precludes adoption of the exception. (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597.) The Holyfield Court, however, never refers to the existing Indian family exception. The sole issue before the Court concerned the domicile of the twin children at issue. Indeed, the Supreme Court has never granted certiorari in any of the numerous cases where our sister State courts have employed the exception, including several cases decided after the Supreme Court’s 1988 decision in Holyfield. See In re Termination of Parental Rights of D.S. (Ind. 1991), 577 N.E.2d 572; In re Adoption of Infant Boy Crews (1992), 118 Wash. 2d 561, 825 P.2d 305; In re S.C. (Okla. 1992), 833 P.2d 1249; In re T.S. (1990), 245 Mont. 242, 801 P.2d 77; In re C.E.H. (Mo. App. 1992), 837 S.W.2d 947; In re C.W. (1992), 239 Neb. 817, 479 N.W.2d 105.
Moreover, the facts of Holyfield are wholly inapposite to those of the instant case. Holyfield concerned unmarried American Indian parents, both of whom resided and were domiciled on the reservation. (Holyfield, 490 U.S. at 37-39, 104 L. Ed. 2d at 39-40, 109 S. Ct. at 1602-03.) Immediately prior to their twins’ births, the parents drove off the reservation to a hospital 200 miles away and, upon the children’s delivery, placed them with an adoptive family. They then drove back to their reservation. Two months later, the tribe sought to have the adoption invalidated because the tribe had not received the requisite notice under the ICWA and the State court had not, as is mandated by the ICWA, made any effort to place the children with members of their extended family or with another American Indian family. The trial court ruled against the tribe and the Mississippi Supreme Court affirmed, ruling that the children had never been domiciled on the reservation and thus that Mississippi properly exercised jurisdiction over the adoption.
The Supreme Court in Holyfield reversed the Mississippi Supreme Court, holding that the ICWA could not be defeated by "individual reservation-domiciled tribal members” intentionally leaving the reservation in order that their children could be placed in an adoptive home off the reservation. (Holyfield, 490 U.S. at 53, 104 L. Ed. 2d at 49, 109 S. Ct. at 1610.) Rather, the Court held that the tribe had exclusive jurisdiction under the Act because the domicile of minors follows that of their parents and the parents at issue clearly never intended to be domiciled anywhere other than on the reservation.
In refusing to recognize the existing Indian family exception, the dissent contends that the reasoning of Holyfield suggests that the exception violates the ICWA. Specifically, the dissent opines that Holyfield stands for the proposition that the ICWA grants the tribes an interest in children separate from that of the children’s parents and thus that the existing Indian family exception is improper because it ignores the tribe’s interest. This, however, overstates the case.
Under the ICWA, the tribe has exclusive jurisdiction over custody disputes involving Indian children residing or domiciled on the reservation, and where neither of the parents objects. (25 U.S.C. § 1911(a) (1988).) Moreover, the ICWA requires that an effort be made to place these children with a member of their extended family or with another American Indian family. (25 U.S.C. § 1915 (1988).) This, however, is the extent of the tribe’s interest. The interest of the tribe is thus not ignored under the existing Indian family exception because, as in the instant case, the exception would only be applied where the children are not part of an existing Indian family. (For post -Holyfield cases employing the exception, see In re Termination of Parental Rights of D.S. (Ind. 1991), 577 N.E.2d 572; In re Adoption of Infant Boy Crews (1992), 118 Wash. 2d 561, 825 P.2d 305; In re S.C. (Okla. 1992), 833 P.2d 1249; In re T.S. (1990), 245 Mont. 242, 801 P.2d 77; In re C.E.H. (Mo. App. 1992), 837 S.W.2d 947.) Indeed, it is significant that S.S. and R.S. have never resided on the reservation with their mother, except for one summer visit. Rather, they have been raised and domiciled in Illinois for virtually their whole lives.
The dissent’s contention that the exception contravenes the intent of Congress in passing the ICWA also ignores Congress’ refusal to abolish the existing Indian family exception. A 1987 amendment to the ICWA presented to the Senate by the Committee for Indian Affairs would have made application of the ICWA mandatory regardless of whether the child had "previously lived in Indian Country, in an Indian cultural environment or with an Indian parent.” (See S. 1976, 100 Cong., 1st Rec. S18532, S18533 (daily ed. Dec. 19, 1987).) The amendment never made it to the floor of the Senate and has not been presented since. Congress is well aware of the existing Indian family exception and apparently has chosen not to change the statutory language of the ICWA to preclude application of the exception.
I note finally the dissent’s intimation that in favoring an abandonment hearing or the adoption of the existing Indian family exception prejudice against or distrust of the Fort Peck tribal court is evidenced. This is not the case and beside the point. S.S. and R.S., at least one-half Caucasian, have lived their whole lives in Illinois divorced from their Indian heritage as a result of their mother’s lack of involvement and arguable abandonment. Illinois has a complex set of statutes designed to ensure the best interests of its citizens, including children in situations such as S.S. and R.S. This court is familiar with and regularly called upon to interpret these statutes which are rooted in the common law and have withstood the test of time. My desire to apply Illinois law if possible stems from my confidence in these laws, all of which aim to achieve what is in the best interest of S.S. and R.S.
CONCLUSION
I would hold that the ICWA does not apply in the instant case because S.S. and R.S. are not part of an existing Indian family. Jurisdiction over the custody dispute would thus remain with the Illinois courts and there would be no need for an abandonment hearing to determine where the children are domiciled. Nevertheless, insofar as a majority of this court refuses to acknowledge the existing Indian family exception, I concur in the judgment set forth by Justice Harrison that the appellate court should be reversed and this matter remanded to the circuit court to determine where the children are domiciled and thus whether the Illinois courts can retain jurisdiction over this custody hearing pursuant to the ICWA.
CHIEF JUSTICE BILANDIC and JUSTICE MILLER join in this concurrence.