(dissenting).
I disagree with the majority that Cecelia’s acts of abandonment did not deprive the Navajo tribe of jurisdiction.
The majority opinion concedes that the evidence supports the determination of the trial court that Cecelia intended to abandon her child, either when he left the reservation or shortly thereafter, but in any event before she appeared to sign the consent to adoption in May of 1980. Then the majority opinion proceeds to apply the “special provisions of the ICWA” to reverse the trial court and conclude that Cecelia’s acts of abandonment did not deprive the tribe of jurisdiction.
The majority opinion states that the ICWA does not expressly define how domicile is established under the act. It accepts the guideline of the Bureau of Indian Affairs for implementing the ICWA, which states that definitions of domicile were not included in the act because these terms are well-defined under existing state law. “There is no indication that these state law definitions tend to undermine, in any way, the purposes of the act.” However, contrary to the above statement, the majority then attempts to demonstrate how state definitions do undermine the act, and concludes that Utah’s common law of domicile is pre-empted by the ICWA. I cannot accept that reasoning. I believe that the BIA guideline means exactly what it says and that the trial court properly applied Utah case law on domicile.
It is frequently pointed out that America is a mobile nation. Our Indian people are no exception. Indian people are perhaps even more mobile because of the fact that it is increasingly difficult for them to make a living within the confines of their reservations. Many of the cities and towns in Utah have Indian residents who frequently return to the reservation to visit relatives and perhaps care for property there. Much like students and others who come and go, the domicile of Indians must be determined on an individual case basis. I find the majority opinion to be unpersuasive as to why special rules need to be applied to Indian people respecting their domicile. The purposes of the ICWA, much like our state laws on taxation and elections, will not be defeated because of the mobility of our nation.