Jennie Bell, a member of the Mississippi Band of Choctaw Indians, a federally recognized tribe, was facing some difficult decisions. She was twenty-four years old, a single mother of two, and she was pregnant with twins by a man who was married to another woman and had two children of his own. (1) 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.
TRIBAL INTERESTS AND PLACEMENTS OF TRIBAL CHILDREN
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...