dissenting:
"[Lack of knowledge] is one of the greatest barriers to understanding between different peoples. If we do not understand each other, if we do not know the culture and history of each other, it is difficult to see the value and dignity of each other’s societies. This is especially true in relations between Indians and non-Indians.” Chief Justice Robert Yazzie, Navajo Nation Supreme Court, as quoted in Comment, Tribal Jurisdiction Under Section 1911(b) of the Indian Child Welfare Act of [1978]: Are the States Respecting Indian Sovereignty?, 23 N.M. L. Rev. 479, 496 (1993).
In the late 1970s, Congress recognized that profound ignorance and misunderstanding of Native American Indian cultural values were prompting State social welfare agencies to engage in the wholesale removal of Indian children from their families and the placement of those children in non-Indian homes. Such removals worked a great hardship on the Native American Indian children, their families, and their tribes. Congress enacted the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq. (1988)), in an effort to prevent the placement of Indian children into non-Indian families, by restoring and preserving Native American Indian tribal court jurisdiction over custody proceedings involving Indian children.
In the present appeal, the majority misapprehends the central focus of the ICWA and ignores Congress’ plenary powers to give superior authority to a tribal court to assert jurisdiction over custody cases involving Native American Indian children. The unfortunate effect of the majority’s opinion is to revert to and perpetuate the regressive State policies and practices that led Congress to enact the ICWA.
The majority opinion misstates the issues presented in this appeal. This court was asked to decide whether it should adopt the "existing Indian family doctrine,” which limits application of the ICWA to Indian children who are members of an "existing Indian family.” The second issue involves the domicile of two Indian children upon the death of one parent. The majority acknowledges that under the ICWA and traditional principles of common law, the children in the instant cause would take the domicile of their mother, who is their surviving parent. Nevertheless, without the benefit of briefing and argument, the majority sua sponte raises the question of whether the ICWA can be superseded by State domicile law when a nonparent seeking custody alleges that the surviving parent has "abandoned” the children.
Because I believe that these questions should be answered in the negative, I respectfully dissent. The majority is remiss for its failure to address, consider, or resolve the primary issue raised by the parties and ruled upon by the appellate court, i.e., the validity and scope of the existing Indian family doctrine. In addition, the majority’s remand of the cause for an "abandonment” hearing in order to determine the children’s domicile strongly suggests that the circuit court should retain jurisdiction over the parties’ adoption dispute, in contradiction to the plain terms of the ICWA.
Background
The parties in this case are the petitioners, Leslie Scarlotte Tubridy and her husband, Patrick Tubridy (Tubridys), respondent Betty Jo Iron Bear (Betty Jo), respondents Fort Peck Assiniboine and Sioux tribes (Fort Peck tribe or tribe) and Betty Jo’s two children, S.S. and R.S.
Although parts of the majority’s recitation of the facts are accurate, the majority improperly supplements the record with matters that are unproven. In so doing, the majority attempts to justify its decision by indulging in unsubstantiated attacks upon the character and morality of Betty Jo, the children’s surviving Indian parent. For example, the record does not disclose the cause of Richard’s death. Nevertheless, the majority states that he died "of a disease he contracted from” Betty Jo (167 Ill. 2d at 252). The briefs to this cause contain arguments from the parties alleging that Richard suffered from acquired immune deficiency syndrome (AIDS), an illness from which Betty Jo also apparently suffers. However, there is nothing in the record to verify the claim that Richard died from AIDS, or that he contracted the illness from Betty Jo. There is no justifiable reason for the majority to make any reference to the nature or cause of Richard’s death. Moreover, the majority fails to explain the relevance of this alleged information with respect to the true issue in this cause, which is the tribe’s jurisdiction under the ICWA.
The majority is without support in its statement that the children have "visited the Fort Peck reservation only once” and that "neither child has had any significant interaction with an Indian tribe beyond their one visit to the reservation.” (167 Ill. 2d at 252-53.) The record does not establish how many times the children have visited the Fort Peck reservation. It is also significant, but undisclosed by the majority, that Betty Jo allegedly has had continuing contact with the children, thereby maintaining the children’s contact with their tribal heritage. Her claim that she has had repeated phone conversations with the children, and corresponded with them, stands unrefuted by the Tubridys.
The majority’s ruling also reflects a more fundamental error: a failure to appreciate that the ICWA is founded on recognizing and preserving the distinctive character of Indian cultural heritage, such as that of Betty Jo and the Fort Peck tribe. Unfortunately, the majority has devised a strategy, albeit legally unsupportable, to circumvent the requirements of the ICWA.
The Indian Child Welfare Act of 1978
Congress enacted the Indian Child Welfare Act in 1978 in response to extensive evidence indicating that large numbers of Indian children were being removed from their Indian families and their tribes and were being placed in non-Indian homes through State foster care placement, termination of parental rights and adoption proceedings. (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 32, 104 L. Ed. 2d 29, 36, 109 S. Ct. 1597, 1600.) It was revealed that such displacements were prompted by a profound misunderstanding of Indian child-rearing methods as well as a more generalized indifference or antipathy to Indian cultural values and beliefs. For example, State social workers often believed that Indian parents had abandoned their children, when in reality the parents were merely following the Indian custom of collective child-rearing by several members of the child’s extended family. The State social workers’ failure to acknowledge and appreciate this Indian custom played a role in many instances where children were separated from their Indian families. Only a small percentage of Indian children were placed in foster or adoptive care because of parental abuse; the great majority were removed from their Indian families based on allegations of parental neglect and abandonment. H.R. Rep. 95 — 1386, 95th Cong., 2d Sess. 10 (1978) (hereinafter House Report).
In fact, information submitted at the congressional hearings "disclosed what almost amounted] to a callous raid on Indian children” and indicated that the children were "removed from their parents and families by State agencies for the most specious of reasons in proceedings foreign to the Indian parents.” (124 Cong. Rec. 12532 (1978) (remarks of Rep. Udall).) It was also revealed that Indian children were placed for adoption and foster care at an alarmingly higher rate than were non-Indian children. (S. Rep. No. 95 — 597, 95th Cong., 1st Sess. 11 (1977) (hereinafter Senate Report); House Report at 9.) According to a sponsor of the ICWA,
"Studies *** revealed that about 25 percent of all Indian children [were] removed from their homes and placed in some foster care or adoptive home or institution. *** The most distressing and critical factor giving rise to this emerging crisis of Indian families [was] *** the inability or unwillingness of State agencies or officials to understand the different cultural and social norms prevailing in the Indian world. The record shows that, in all too many cases, Indian parents ha[d] their children forcibly taken from them not because they [were] unfit parents or because they [could not] adequately provide for their children as measured by the norms prevailing in the Indian community, but because they are Indians.” 124 Cong. Rec. 38102 (October 14, 1978) (remarks of Rep. Udall).
See also Myers, Gardner & Geary, Adoption of Native American Children and the Indian Child Welfare Act, 18 S. Ct. J. 17 (1994).
It was perceived that part of the reason for such widespread removal of Indian children from their families was to accomplish a "forced acculturation of Native American children into Euro-American society”; the ICWA was adopted in order to end such practices "by recognizing a predominantly tribal jurisdiction over tribal child welfare cases.” (Carriere, Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act, 79 Iowa L. Rev. 585, 589 (1994) (hereinafter Representing the Native American).) It was further recognized that the widespread practice of placing Indian children in non-Indian families caused serious harm to the Indian children, their parents and their tribes. As explained by Chief Calvin Isaac, a representative of the National Tribal Chairmen’s Association who testified before Congress, " '[culturally, the chances of Indian survival [and the transmission of tribal heritage] are significantly reduced [when Indian children are raised] *** in non-Indian homes and denied exposure to the ways of their People.’ ” He further testified that the practice of removing Indian children from the custody of their natural parents by nontribal authorities " 'seriously undercuts] the tribes’ ability to continue as self-governing communities.’ ” He opined that " '[p]robably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.’ ” Holyfield, 490 U.S. at 34, 104 L. Ed. 2d at 37, 109 S. Ct. at 1600-01 (quoting from the transcripts of the hearings before the Senate Select Committee on Indian Affairs, 95th Cong., 2nd Sess. 193 (1978)).
Although the majority acknowledges that the ICWA was adopted to remedy these problems, the majority ignores that these very issues are present in the instant cause. The majority refuses to confront and grapple with the reality that there can be significant and possibly irreparable harm that is inflicted on Indian children, Indian families, and Indian tribes when Indian tribes are wrongfully deprived of their rightful jurisdiction to determine custody disputes involving Indian children.
The majority also acknowledges, but fails to give content to, the statement of findings and policy adopted by Congress when it enacted the ICWA. Congress emphasized at length that the ICWA was consistent with the special duty that the United States has to preserve and protect Indian tribes. (See 25 U.S.C. § 1901 (1988).) In enacting the statute, Congress reiterated that it was intended to greatly reduce State involvement in Indian child custody disputes, inasmuch as Congress had determined that "the States, exercising their recognized jurisdiction over Indian child custody proceedings *** have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” (25 U.S.C. § 1901(5) (1988).) In order to prevent or reduce State involvement, Congress declared that it was the policy of the ICWA "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).
The majority’s decision eviscerates the ICWA’s requirement for consistent and uniform minimum Federal standards and replaces it with the peculiar vagaries of Illinois law with respect to whether alleged parental "abandonment” causes a change in a child’s domicile. Such was not the spirit or intent of Congress when it enacted the ICWA, and the majority’s disposition is a plain violation of the express terms of the Federal statute.
Under section 1911(a) of the ICWA, the tribal court possesses exclusive jurisdiction "over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe.” (25 U.S.C. § 1911(a) (1988).) In the case of Indian children not domiciled or residing within the reservation of the child’s tribe, section 1911(b) creates concurrent but presumptively tribal jurisdiction and requires State courts to transfer jurisdiction over the proceedings to the tribal court, except in cases of "good cause.” 25 U.S.C. § 1911(b) (1988).
Whether a child is "domiciled” on a reservation for purposes of a court’s jurisdiction under the ICWA was considered at length by the United States Supreme Court in Mississippi Band of Choctaw Indians v. Holyfteld (1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597. In Holyfield, Native American Indian parents who were domiciled on an Indian reservation in Mississippi travelled approximately 200 miles off the reservation for the birth of their twins. They executed consent-to-adoption forms immediately after the births and then returned to the reservation. The State courts of Mississippi validated the adoptions over the objections of the parents’ Indian tribe, which sought to intervene in the adoption proceeding. However, the United States Supreme Court held that the tribal court had exclusive jurisdiction over the custody proceeding, since the parents had been domiciled on the reservation and the children took the domicile of their parents upon their birth. The Court held that in. determining domicile, courts must look to uniform, Federal jurisprudence with respect to this term, and that courts cannot apply an inconsistent interpretation of domicile that might vary from State to State.
The majority acknowledges the general principles regarding domicile of a minor whose parent has died, leaving a surviving parent. As noted by the majority, under established common law, upon the death of Richard, the domicile of the children became that of Betty Jo, the surviving parent and legal custodian. (People ex rel. Noonan v. Wingate (1941), 376 Ill. 244, 249 (at common law upon the death of the father an infant took the domicile of its mother); 25 Am. Jur. 2d Domicil §§ 67, 70 (1966) (§ 67: upon the death of the parent to whom custody of a child has been awarded, the domicile of the child becomes that of the surviving parent; § 70: upon the death of the father, the domicile of the minor becomes the domicile of the mother); Restatement (Second) of Conflict of Laws § 22, Comment b, at 63 (1981) (upon the death of the parent who has been awarded legal custody of the child or with whom the child has been living, the child’s domicile shifts to that of the other parent even though the latter is domiciled in another State).) Applying these principles to the instant case, the domicile of R.S. and S.S. is the same as that of their mother, i.e., the Fort Peck reservation. Consequently, since this case is a child custody proceeding involving Indian children whose domicile is an Indian reservation, the express language of section 1911(a) of the ICWA mandates that the tribe have exclusive jurisdiction over this action.
The majority believes that the children’s domicile should not follow that of their mother, Betty Jo, because there are allegations that she has "abandoned” the children. However, under the terms of the ICWA and its jurisprudential interpretations by the United States Supreme Court, State laws pertaining to abandonment cannot be applied to determine a child’s domicile under the Indian Child Welfare Act.
The Supreme Court held in Holy field that a parent’s actions cannot alter tribal court power to assert jurisdiction over a custody proceeding involving an Indian child who is a member of, or is eligible for membership in, the Indian tribe. (Holyfield, 490 U.S. at 51-53, 104 L. Ed. 2d at 48-49, 109 S. Ct. at 1609-11.) As a result, the Court held that parental actions amounting to abandonment do not and cannot divest a tribal court of jurisdiction. In so ruling, the Holyfield Court agreed with the reasoning of the Supreme Court of Utah in In re Adoption of Halloway (Utah 1986), 732 P.2d 962, 969-70, that even a finding of parental abandonment cannot be determinative of jurisdiction under the ICWA. (Holyfield, 490 U.S. at 51 n.26, 52-53, 104 L. Ed. 2d at 48 n.26, 49, 109 S. Ct. at 1609 n.26, 1610.) The Court noted that the decision in Halloway was a "scholarly and sensitive opinion in what has become a leading case on the ICWA.” (Holyfield, 490 U.S. at 52, 104 L. Ed. 2d at 49, 109 S. Ct. at 1610.) Quoting Halloway, the Court further stated:
" '[State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents.’ ” Holyfield, 490 U.S. at 53, 104 L. Ed. 2d at 49, 109 S. Ct. at 1610, quoting Halloway, 732 P.2d at 97.
In Halloway, the court ruled that the domicile of the child born out of wedlock was that of his mother on the reservation and that under section 1911(a) of the ICWA the tribe therefore had exclusive jurisdiction over the adoption proceeding. The Halloway court refused to apply State law to defeat the tribe’s jurisdiction on the basis that the child had been, arguably, abandoned by the mother after the child’s removal from the reservation and placement in a non-Indian home. The court stated, "There certainly is nothing in the ICWA or its legislative history to suggest that state law controls if, in application, its subtleties bring it into conflict with the ICWA in ways that Congress apparently did not foresee. Under general supremacy principles, state law cannot be permitted to operate 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ [Citation.] If it does, state law is preempted. [Citation.]” Halloway, 732 P.2d at 967.
Based upon Holyfield’s endorsement of this reasoning in Halloway, it is readily apparent that Illinois’ State-abandonment rules cannot be used to deprive the Fort Peck tribal court of jurisdiction over this custody dispute, which involves two Indian children who are legally presumed to be domiciled on the tribal reservation. Yet this is precisely what the majority accomplishes in its opinion today.
In order to justify its position, the majority attempts to distinguish Holyfield. However, its reasoning does not withstand scrutiny. The majority suggests that Holyfield stands only for the rule that "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.” (167 Ill. 2d at 261-62.) However, the Supreme Court in Holyfield condemned the State court’s use of its own State-law abandonment principles in order to deprive the Indian tribe of its legitimate exercise of jurisdiction over the adoption dispute. Such efforts by a State-court system to use its own abandonment rules in order to oust the tribal court of jurisdiction are just as apparent in the instant cause as they were in Holyfield.
Application of abandonment principles in order to shift the children’s domicile from their mother, Betty Jo, is directly contrary to and entirely inconsistent with congressional intent in enacting the Indian Child Welfare Act. As the Supreme Court observed in Holyfield, Congress intended the term "domicile” to have a uniform Federal meaning in order to curtail State authority over child custody proceedings involving Indian children, because it was perceived that, in the past, "the States and their courts [were] partly responsible for the problem [the ICWA] intended to correct.” (Holyfield, 490 U.S. at 45, 104 L. Ed. 2d at 44, 109 S. Ct. at 1606.) Another congressional concern was the substantial number of instances where social workers misunderstood Indian child-rearing methods as "abandonment,” when in actuality the Indian parent’s actions were simply a reflection of extended family child-rearing practices. (See Holyfield, 490 U.S. at 34-36, 104 L. Ed. 2d at 37-38, 109 S. Ct. at 1601.) Permitting State courts to decide whether an Indian parent has abandoned her children, in order to determine whether the children are domiciled in the State for the purpose of ascertaining tribal court or State-court jurisdiction over the child custody proceeding, could lead to a recurrence of the very abuses which the ICWA was designed to prevent. Given these considerations, I do not believe that Congress intended a State court to decide whether an Indian parent’s so-called "abandonment” of her children should deprive the children from taking her domicile upon the death of their father.
Moreover, allowing the State court to decide whether Betty Jo has abandoned her children, in order to determine whether the Fort Peck tribe has exclusive jurisdiction over the Tubridys’ adoption petition, creates an anomaly in procedure that is nowhere provided for in the ICWA. Whether Betty Jo has abandoned the children is an issue that properly arises in the context of the Tubridys’ allegations that Betty Jo is not a fit parent. However, the majority essentially holds that Betty Jo’s alleged abandonment of the children may be considered twice — once in the context of a domicile hearing, and a second time in the context of a fitness hearing.
Under the ICWA, an allegation of parental unfitness must be proven beyond a reasonable doubt. (25 U.S.C. § 1912(f) (1988).) However, in a traditional unfitness hearing under Illinois law, the proper standard is proof by clear and convincing evidence. (750 ILCS 50/1(D) (West 1992); see, e.g., In re Adoption of Syck (1990), 138 Ill. 2d 255.) Thus it is unclear which burdens of proof would apply in the instant proceedings. The majority does not explain to the circuit court whether the standard of clear and convincing evidence should apply for the "domicile/abandonment hearing” and whether the standard of proof beyond a reasonable doubt would apply for the "adoption/abandonment hearing.” The majority has created an unwarranted, cumbersome, and illogical procedural course. There is nothing in the ICWA that demonstrates congressional intent to allow abandonment to be litigated on two separate occasions during the course of the proceeding, or to allow two different burdens of proof to apply to these proceedings.
In my view, Congress intended the concept of "domicile” to be a "well-defined operating system for effectuating tribal jurisdiction” even in instances where the Indian children lived a substantial distance from the tribal reservation and in all likelihood could not have either close, on-going physical contacts with their tribal relatives, or consistent, in-depth exposure to and education about their tribal heritage. (1976 Report on Federal, State, and Tribal Jurisdiction, reprinted in Senate Report at 51-52.) This congressional intent to ensure that domicile would be given a wide and uniform interpretation leads to the conclusion that Betty Jo’s children share her domicile upon the death of their father, and that principles of State law regarding "abandonment” cannot be utilized to shift the children’s domicile away from that of their biological mother.
In fact, the legislative history of the ICWA reveals that Congress rejected an earlier version of the statute that would have required, as a prerequisite to tribal-court jurisdiction, that an Indian child not living on the tribal reservation have "significant contacts” with the tribe. A review of the original version of the ICWA, initially introduced as Senate Bill 1214, included a provision stating the following:
"In the case of any Indian child who is not a resident of an Indian reservation or who is otherwise under the jurisdiction of a state, if said Indian child has significant contacts with an Indian tribe, no child placement shall be valid or given any legal force and effect, *** unless the Indian tribe with which such child has significant contacts has been accorded thirty days prior written notice of a right to intervene as an interested party in the child placement proceedings. In the event that the intervening tribe maintains a tribal court which has jurisdiction over child welfare matters, jurisdiction shall be transferred to such tribe upon its request unless good cause for refusal is affirmatively shown.” (Senate Bill 1214, § 102(c), quoted in Senate Report at 4.)
The bill further provided:
"For the purposes of this Act, whether or not a nonreservation resident Indian child has significant contacts with an Indian tribe shall be an issue of fact to be determined by the court on the basis of such considerations as: Membership in a tribe, family ties within the tribe, prior residency on the reservation for appreciable periods of time, reservation domicile, the statements of the child demonstrating a strong sense of self-identity as an Indian, or any other elements which reflect a continuing tribal relationship.” Senate Bill 1214, § 102(f), quoted in Senate Report at 5.
These provisions that required an Indian child to have "significant contacts” with the tribe were deleted in subsequent legislative action. No reference to "significant Indian contacts” appears in versions of the ICWA that were proposed after Senate Bill 1214, and no reference is made to it in subsequent hearings before the House of Representatives. Rather, Congress considered a version that defines "Indian child” in the same manner as the definition currently given under the ICWA (25 U.S.C. § 1903(4) (1988)), and contains no requirement of "significant contacts” with a tribe anywhere in subsequent legislation.
In light of this legislative history, it would appear that Congress considered, and rejected, a doctrine that would have required the Indian child to have "significant contacts” with his or her member tribe in order to invoke tribal jurisdiction under the ICWA. I believe congressional rejection of the "significant contacts” test is an important indicator that Congress did not intend the ICWA to be limited by a doctrine that would require that an Indian child, in order to take the domicile of his surviving parent, must have had "significant contacts” with the surviving parent and the tribe. Yet this is remarkably similar to the conclusion of the majority in the present cause. The majority suggests that the children’s domicile will follow that of their mother, in order to determine jurisdiction, only if the children have had significant contacts with their mother and their, tribe. However, according to the majority, Betty Jo has only had "sporadic” involvement in the children’s lives and the children have had virtually no contact with the Fort Peck.tribe. Construing this lack of significant contacts as evidence of parental abandonment, the majority attempts to bolster the circuit court’s jurisdiction over the parties’ adoption dispute. The effort is fruitless, however; Congress never intended parental abandonment, or lack of significant contacts, to operate as a means by which to determine State-court jurisdiction over a custody battle involving Native American Indian children.
The majority further tilts the scale in favor of State-court jurisdiction by holding that there is "good cause” under section 1911(b) to retain the adoption proceeding in this State, assuming the tribal court has concurrent jurisdiction over the adoption dispute. The majority’s ruling in this regard is particularly inappropriate and disturbing, since the parties have never had the opportunity to argue whether there is good cause to retain the matter in State court. The majority determines that the circuit court should retain jurisdiction under principles of "good cause,” notwithstanding the complete and total failure and absence of any hearing, argument, evidence or finding with respect to the issue of good cause. However, the question of "good cause” to retain jurisdiction in Illinois does not even arise until the issue of the children’s domicile has been resolved. Because this preliminary question of domicile has not yet been resolved, I disagree with the majority’s premature determination that there is "good cause” for the Illinois circuit court to retain jurisdiction over the parties’ adoption dispute.
I also depart from the majority’s decision because of its refusal to consider the primary argument raised by the parties: the validity and scope of the existing Indian family doctrine. The majority’s refusal to consider this question is particularly remiss because it has been extensively briefed before this court and was the primary issue resolved by the appellate court.
I believe the existing Indian family doctrine should be rejected by this court. The doctrine is actually a judicially created prerequisite to the applicability of the ICWA. It is premised upon the notion that application of the ICWA is limited to proceedings seeking the removal of an Indian child from a recognizable existing Indian family unit, home or culture. Proponents of the doctrine rely on the ICWA’s references to the removal of Indian children from their families and the breakup of Indian families as support for their position that the underlying purposes and goals of the ICWA are not served or advanced when there is no existing family to maintain or from which an Indian child is being removed. Opponents argue that the doctrine is directly contrary to the express language, purposes and goals of the ICWA, which include protecting Indian tribes as well as Indian families. See generally Davis, The Existing Indian Family Exception to the Indian Child Welfare Act, 69 N.D. L. Rev. 465 (1993).
I suggest that the better approach is to reject the existing Indian family doctrine. There is no provision in the ICWA requiring that an Indian child be born into or be living in an Indian family unit to be subject to its provisions. However much one might believe the ICWA should have been written that way, "[n]o amount of probing into what Congress 'intended’ can alter what Congress said.” (Emphasis omitted.) (In re N.S., 474 N.W.2d at 100 n.* (Sabers, J., specially concurring).) Congress explicitly granted Indian tribes exclusive jurisdiction over child custody proceedings involving Indian children who are domiciliaries of a reservation and granted tribes presumptive jurisdiction in situations where the Indian children are not so domiciled. 25 U.S.C. § 1911 (1988); accord Holyfield, 490 U.S. at 36, 104 L. Ed. 2d at 38-39, 109 S. Ct. at 1601-02; Tellinghuisen, The Indian Child Welfare Act of 1978: A Practical Guide with (Limited) Commentary, 34 S.D. L. Rev. 660, 671 (1989).
I also reject the doctrine because of its potential for abuse in those instances where a State court mistrusts the Indian tribal court’s ability to properly consider the "best interests” of the child in determining the child’s custody arrangement. As one commentator has noted,
"The notion that Native American tribal courts are more likely than state courts to neglect or inflict suffering on Native American children is grounded in suspicion, not in objective evidence. [With regard to the twin children whose adoption was at issue in Holyfield), the tribal court confirmed the placement of [the] *** twins with a non-tribal family [as did the tribal court which decided the adoption petition with respect to the Indian child in In re Adoption of Halloway (Utah 1986), 732 P.2d 962]. Moreover, the assumption that tragic outcomes will more likely occur when jurisdiction lies with tribal courts rather than with state courts bespeaks a blindness both to the values and to the level of efficiency attained by the Euro-American child welfare system.” Garriere, Representing the Native American, 79 Iowa L. Rev. at 629.
In conclusion, I strongly emphasize that I neither decide nor suggest where the placement of the children should ultimately be. The only question we have been called upon to resolve is the limited legal one of jurisdiction, viz., which tribunal is the proper forum to determine whether the Tubridys should be permitted to adopt Betty Jo’s children. Having established its right to exclusive jurisdiction to rule on the Tubridys’ adoption petition, "we [should] defer to the experience, wisdom and compassion of the [Fort Peck] tribal court” to make an appropriate decision regarding the children’s futures. (Holyfield, 490 U.S. at 54, 104 L. Ed. 2d at 50, 109 S. Ct. at 1611, quoting Halloway, 732 P.2d at 972.) I am confident that the tribal court would accord these proceedings the very serious consideration they deserve and would act with the utmost concern for the children’s best interests.
For the reasons stated, I would affirm the judgment of the appellate court.
JUSTICES FREEMAN and NICKELS join in this dissent.