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'''United States v. Sokolow'''
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{{CaseCaption
| court = United States Supreme Court
| volume = 490
| reporter = U.S.
| page = 1
| party1 = UAITED STATES, Petitioner
| party2 = Andrew SOKOLOW.
| casename = United States v. Sokolow
| lowercourt =
| argued = Jan. 10, 1989.
| decided = April 3, 1989
| case no = 87-1295
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<div class='courtopinion'>
Syllabus
Drug Enforcement Administration (DEA) agents stopped respondent upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two round-trip plane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous durin his trip; and (6) he checked none of his luggage. Respondent was indicted for possession with intent to distribute cocaine. The District Court denied his motion to suppress the evidence, finding that the stop was justified by a reasonable suspicion that he was engaged in criminal activity, as required by the Fourth Amendment. The Court of Appeals disagreed and reversed respondent's conviction, applying a two-part test for determining reasonable suspicion. First, ruled the court, at least one fact describing "ongoing criminal activity"-such as the use of an alias or evasive movement through an airport-was always necessary to support a reasonable-suspicion finding. Second, "probabilistic" facts describing "personal characteristics" of drug couriers-such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage were only relevant if there was evidence of "ongoing criminal activity" and the Government offered "[e]mpirical documentation" that the combination of facts at issue did not describe the behavior of "significant numbers of innocent persons." The Court of Appeals held the agents' stop impermissible, because there was no evidence of ongoing criminal behavior in this case.
Held: On the facts of this case the DEA agents had a reasonable suspicion that respondent was transporting illegal drugs when they stopped him. Pp. 7-11.
(a) Under Terry v. Ohio, [[392 U.S. 1]], 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if they lack probable cause under the Fourth Amendment. Reasonable suspicion entails some minimal level of objective justification for making a stop-that is, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause. P. 7.
(b) The Court of Appeals' two-part test creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. Under this Court's decisions, the totality of the circumstances must be evaluated to determine the probability, rather than the certainty, of criminal conduct. United States v. Cortez, [[449 U.S. 411]], 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621. The Court of Appeals' test draws an unnecessarily sharp line between types of evidence, the probative value of which varies only in degree. While traveling under an alias or taking an evasive path through an airport may be highly probative, neither type of evidence has the sort of ironclad significance attributed to it by the Court of Appeals, because there are instances in which neither factor would reflect ongoing criminal activity. On the other hand, the test's "probabilistic" factors also have probative significance. Paying $2,100 in cash for airline tickets from a roll of $20 bills containing nearly twice that amount is not ordinary conduct for most business travelers or vacationers. The evidence that respondent was traveling under an alias, although not conclusive, was sufficient to warrant consideration. Of similar effect is the probability that few Honolulu residents travel for 20 hours to spend 48 hours in Miami during July. Thus, although each of these factors is not by itself proof of illegal conduct and is quite consistent with innocent travel, taken together, they amount to reasonable suspicion that criminal conduct was afoot. Pp. 7-10.
(c) The fact that the agents believed that respondent's behavior was consistent with one of the DEA's "drug courier profiles" does not alter this analysis, because the factors in question have evidentiary significance regardless of whether they are set forth in a "profile." P. 10.
(d) The reasonableness of the decision to stop does not, as respondent contends, turn upon whether the police used the least intrusive means available to verify or dispel their suspicions. Such a rule would unduly hamper the officers' ability to make on-the-spot decisions here, respondent was about to enter a taxicab-and would require courts to indulge in unrealistic second-guessing. Florida v. Royer, [[460 U.S. 491]], 495, 103 S.Ct. 1319, 1322-23, 75 L.Ed.2d 229, distinguished. Pp. 10-11.
[[831 F.2d 1413]] (CA9 1987), reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 11.
Paul J. Larkin, Jr., Washington, D.C., for petitioner.
Robert P. Goldberg, Honolulu, Hawaii, for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.
==Notes==
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'''Talk:United States v. Sokolow'''
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'''United States v. Sokolow/Opinion of the Court'''
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<div class='courtopinion'>
Respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. A divided panel of the United States Court of Appeals for the Ninth Circuit held that the DEA agents did not have a reasonable suspicion to stop respondent, as required by the Fourth Amendment. [[831 F.2d 1413]] (CA9 1987). We take the contrary view.
This case involves a typical attempt to smuggle drugs through one of the Nation's airports. {{ref|1}} On a Sunday in July 1984, respondent went to the United Airlines ticket counter at Honolulu Airport, where he purchased two round-trip tickets for a flight to Miami leaving later that day. The tickets were purchased in the names of "Andrew Kray" and "Janet Norian" and had open return dates. Respondent paid $2,100 for the tickets from a large roll of $20 bills, which appeared to contain a total of $4,000. He also gave the ticket agent his home telephone number. The ticket agent noticed that respondent seemed nervous; he was about 25 years old; he was dressed in a black jumpsuit and wore gold jewelry; and he was accompanied by a woman, who turned out to be Janet Norian. Neither respondent nor his companion checked any of their four pieces of luggage.
After the couple left for their flight, the ticket agent informed Officer John McCarthy of the Honolulu Police Department of respondent's cash purchase of tickets to Miami. Officer McCarthy determined that the telephone number respondent gave to the ticket agent was subscribed to a "Karl Herman," who resided at 348-A Royal Hawaiian Avenue in Honolulu. Unbeknownst to McCarthy (and later to the DEA agents), respondent was Herman's roommate. The ticket agent identified respondent's voice on the answering machine at Herman's number. Officer McCarthy was unable to find any listing under the name "Andrew Kray" in Hawaii. McCarthy subsequently learned that return reservations from Miami to Honolulu had been made in the names of Kray and Norian, with their arrival scheduled for July 25, three days after respondent and his companion had left. He also learned that Kray and Norian were scheduled to make stopovers in Denver and Los Angeles.
On July 25, during the stopover in Los Angeles, DEA agents identified respondent. He "appeared to be very nervous and was looking all around the waiting area." App. 43-44. Later that day, at 6:30 p.m., respondent and Norian arrived in Honolulu. As before, they had not checked their luggage. Respondent was still wearing a black jumpsuit and gold jewelry. The couple proceeded directly to the street and tried to hail a cab, where Agent Richard Kempshall and three other DEA agents approached them. Kempshall displayed his credentials, grabbed respondent by the arm, and moved him back onto the sidewalk. Kempshall asked respondent for his airline ticket and identification; respondent said that he had neither. He told the agents that his name was "Sokolow," but that he was traveling under his mother's maiden name, "Kray."
Respondent and Norian were escorted to the DEA office at the airport. There, the couple's luggage was examined by "Donker," a narcotics detector dog, which alerted on respondent's brown shoulder bag. The agents arrested respondent. He was advised of his constitutional rights and declined to make any statements. The agents obtained a warrant to search the shoulder bag. They found no illicit drugs, but the bag did contain several suspicious documents indicating respondent's involvement in drug trafficking. The agents had Donker reexamine the remaining luggage, and this time the dog alerted on a medium-sized Louis Vuitton bag. By now, it was 9:30 p.m., too late for the agents to obtain a second warrant. They allowed respondent to leave for the night, but kept his luggage. The next morning, after a second dog confirmed Donker's alert, the agents obtained a warrant and found 1,063 grams of cocaine inside the bag.
Respondent was indicted for possession with the intent to distribute cocaine in violation of [[21 U.S.C. § 841]](a)(1). The United States District Court for Hawaii denied his motion to suppress the cocaine and other evidence seized from his luggage, finding that the DEA agents had a reasonable suspicion that he was involved in drug trafficking when they stopped him at the airport. Respondent then entered a conditional plea of guilty to the offense charged.
The United States Court of Appeals for the Ninth Circuit reversed respondent's conviction by a divided vote, holding that the DEA agents did not have a reasonable suspicion to justify the stop. [[831 F.2d 1413|831 F.2d, at 1423]]. {{ref|2}} The majority divided the facts bearing on reasonable suspicion into two categories. In the first category, the majority placed facts describing "ongoing criminal activity," such as the use of an alias or evasive movement through an airport; the majority believed that at least one such factor was always needed to support a finding of reasonable suspicion. Id., at 1419. In the second category, it placed facts describing "personal characteristics" of drug couriers, such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage. Id., at 1420. The majority believed that such characteristics, "shared by drug couriers and the public at large," were only relevant if there was evidence of ongoing criminal behavior and the Government offered "[e]mpirical documentation" that the combination of facts at issue did not describe the behavior of "significant numbers of innocent persons." Ibid. Applying this two-part test to the facts of this case, the majority found that there was no evidence of ongoing criminal behavior, and thus that the agents' stop was impermissible. The dissenting judge took the view that the majority's approach was "overly mechanistic" and "contrary to the case-by-case determination of reasonable articulable suspicion based on all the facts." Id., at 1426.
We granted certiorari to review the decision of the Court of Appeals, [[486 U.S. 1042]], 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988), because of its serious implications for the enforcement of the federal narcotics laws. We now reverse.
The Court of Appeals held that the DEA agents seized respondent when they grabbed him by the arm and moved him back onto the sidewalk. [[831 F.2d 1413|831 F.2d, at 1416]]. The Government does not challenge that conclusion, and we assume-without deciding-that a stop occurred here. Our decision, then, turns on whether the agents had a reasonable suspicion that respondent was engaged in wrongdoing when they encountered him on the sidewalk. In Terry v. Ohio, [[392 U.S. 1]], 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause.
The officer, of course, must be able to articulate something more than an "inchoate and unparticularized suspicion or 'hunch.' " Id., at 27, 88 S.Ct., at 1883. The Fourth Amendment requires "some minimal level of objective justification" for making the stop. INS v. Delgado, [[466 U.S. 210]], 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," Illinois v. Gates, [[462 U.S. 213]], 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, [[473 U.S. 531]], 541, 544, 105 S.Ct. 3304, 3310, 3312, 87 L.Ed.2d 381 (1985).
The concept of reasonable suspicion, like probable cause, is not "readily, or even usefully, reduced to a neat set of legal rules." Gates, supra, [[462 U.S. 213|462 U.S., at 232]], 103 S.Ct., at 2329. We think the Court of Appeals' effort to refine and elaborate the requirements of "reasonable suspicion" in this case creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. In evaluating the validity of a stop such as this, we must consider "the totality of the circumstances the whole picture." United States v. Cortez, [[449 U.S. 411]], 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). As we said in Cortez:
"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same-and so are law enforcement officers." Id., at 418, 101 S.Ct., at 695.
The rule enunciated by the Court of Appeals, in which evidence available to an officer is divided into evidence of "ongoing criminal behavior," on the one hand, and "probabilistic" evidence, on the other, is not in keeping with the quoted statements from our decisions. It also seems to us to draw a sharp line between types of evidence, the probative value of which varies only in degree. The Court of Appeals classified evidence of traveling under an alias, or evidence that the suspect took an evasive or erratic path through an airport, as meeting the test for showing "ongoing criminal activity." But certainly instances are conceivable in which traveling under an alias would not reflect ongoing criminal activity: for example, a person who wished to travel to a hospital or clinic for an operation and wished to concealed that fact. One taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor. This is not to say that each of these types of evidence is not highly probative, but they do not have the sort of ironcl d significance attributed to them by the Court of Appeals.
On the other hand, the factors in this case that the Court of Appeals treated as merely "probabilistic" also have probative significance. Paying $2,100 in cash for two airplane tickets is out of the ordinary, and it is even more out of the ordinary to pay that sum from a roll of $20 bills containing nearly twice that amount of cash. Most business travelers, we feel confident, purchase airline tickets by credit card or check so as to have a record for tax or business purposes, and few vacationers carry with them thousands of dollars in $20 bills. We also think the agents had a reasonable ground to believe that respondent was traveling under an alias; the evidence was by no means conclusive, but it was sufficient to warrant consideration. {{ref|3}} While a trip from Honolulu to Miami, standing alone, is not a cause for any sort of suspicion, here there was more: surely few residents of Honolulu travel from that city for 20 hours to spend 48 hours in Miami during the month of July.
Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. See Florida v. Royer, [[460 U.S. 491]], 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983) (opinion of WHITE, J.); id., at 515-516, 103 S.Ct., at 1333-1334 (BLACKMUN, J., dissenting); id., at 523-524, 103 S.Ct., at 1337-38 (REHNQUIST, J., dissenting). {{ref|4}} We said in Reid v. Georgia, [[448 U.S. 438]], 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot." Id., at 441, 100 S.Ct., at 2754. {{ref|5}} Indeed, Terry itself involved "a series of acts, each of them perhaps innocent" if viewed separately, "but which taken together warranted further investigation." [[392 U.S. 1|392 U.S., at 22]], 88 S.Ct., at 1881; see also Cortez, supra, [[449 U.S. 411|449 U.S., at 417]]-419, 101 S.Ct., at 694-696. We noted in Gates, [[462 U.S. 213|462 U.S., at 243]]-244, n. 13, 103 S.Ct., at 2335 n. 13, that "innocent behavior will frequently provide the basis for a showing of probable cause," and that "[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." That principle applies equally well to the reasonable suspicion inquiry.
We do not agree with respondent that our analysis is somehow changed by the agents' belief that his behavior was consistent with one of the DEA's "drug courier profiles." {{ref|6}} Brief for Respondent 14-21. A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a "profile" does not somehow detract from their evidentiary significance as seen by a trained agent.
Respondent also contends that the agents were obligated to use the least intrusive means available to verify or dispel their suspicions that he was smuggling narcotics. Id., at 12-13, 21-23. In respondent's view, the agents should have simply approached and spoken with him, rather than forcibly detaining him. He points to the statement in Florida v. Royer, [[460 U.S. 491|460 U.S., at 500]], 103 S.Ct., at 1325-26 (opinion of WHITE, J.), that "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." That statement, however, was directed at the length of the investigative stop, not at whether the police had a less intrusive means to verify their suspicions before stopping Royer. The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions-here, respondent was about to get into a taxicab-and it would require courts to "indulge in 'unrealistic second-guessing.' " Montoya de Hernandez, [[473 U.S. 531|473 U.S., at 542]], 105 S.Ct., at 3311, quoting United States v. Sharpe, [[470 U.S. 675]], 686, 687, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985).
We hold that the agents had a reasonable basis to suspect that respondent was transporting illegal drugs on these facts. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with our decision.
It is so ordered.
==Notes==
{{note|1|1}} The facts in this case were developed at suppression hearings held in the District Court over three separate days. The parties also stipulated to certain facts.
{{note|2|2}} In an earlier decision, the Court of Appeals also reversed the District Court, but on the basis of different reasoning. [[808 F.2d 1366]], vacated, [[831 F.2d 1413]] (CA9 1987). The Court of Appeals' second decision was issued after the Government petitioned for rehearing on the ground that the court had erred in considering each of the facts known to the agents separately rather than in terms of the totality of the circumstances.
{{note|3|3}} Respondent also claims that the agents should have conducted a further inquiry to resolve the inconsistency between the name he gave the airline and the name, "Karl Herman," under which his telephone number was listed. Brief for Respondent 26. This argument avails respondent nothing; had the agents done further checking, they would have discovered not only that respondent was Herman's roommate but also that his name was "Sokolow" and not "Kray," the name listed on his ticket.
{{note|4|4}} In Royer, the police were aware, inter alia, that (1) Royer was traveling under an assumed name; (2) he paid for his ticket in cash with a number of small bills; (3) he was traveling from Miami to New York; (4) he put only his name and not an address on his checked luggage; and (5) he seemed nervous while walking through Miami airport. [[460 U.S. 491|460 U.S., at 493]], n. 2, 502, 103 S.Ct., at 1322, n. 2, 1326-27 (opinion of WHITE, J.).
{{note|5|5}} In Reid, the Court held that a DEA agent stopped the defendant without reasonable suspicion. At the time of the stop, the agent knew that (1) the defendant flew into Atlanta from Fort Lauderdale, a source city for cocaine; (2) he arrived early in the morning, when police activity was believed to be at a low ebb; (3) he did not check his luggage; and (4) the defendant and his companion appeared to be attempting to hide the fact that they were together. The Court held that the first three of these facts were not sufficient to supply reas nable suspicion, because they "describe a very large category of presumably innocent travelers," while the last fact was insufficient on the facts of that case to establish reasonable suspicion. [[448 U.S. 438|448 U.S., at 441]], 100 S.Ct., at 2754.
{{note|6|6}} Agent Kempshall testified that respondent's behavior "had all the classic aspects of a drug courier." App. 59. Since 1974, the DEA has trained narcotics officers to identify drug smugglers on the basis of the sort of circumstantial evidence at issue here.
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'''Talk:United States v. Sokolow/Opinion of the Court'''
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'''United States v. Sokolow/Dissent Marshall'''
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<div class='courtopinion'>
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and the guilty alike. Illinois v. Gates, [[462 U.S. 213]], 290, 103 S.Ct. 2317, 2359-60, 76 L.Ed.2d 527 (1983) (BRENNAN, J., dissenting). In the present case, the chain of events set in motion when respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents at Honolulu International Airport led to the discovery of cocaine and, ultimately, to Sokolow's conviction for drug trafficking. But in sustaining this conviction on the ground that the agents reasonably suspected Sokolow of ongoing criminal activity, the Court diminishes the rights of all citizens "to be secure in their persons," U.S.C.onst., Amdt. 4, as they traverse the Nation's airports. Finding this result constitutionally impermissible, I dissent.
The Fourth Amendment cabins government's authority to intrude on personal privacy and security by requiring that searches and seizures usually be supported by a showing of probable cause. The reasonable-suspicion standard is a derivation of the probable-cause command, applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigences such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations. Terry v. Ohio, [[392 U.S. 1]], 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). By requiring reasonable suspicion as a prerequisite to such seizures, the Fourth Amendment protects innocent persons from being subjected to "overbearing or harassing" police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irrelevant personal characteristics such as race. Id., at 14-15, and n. 11, 88 S.Ct., at 1876 and n. 11 (citation omitted).
To deter such egregious police behavior, we have held that a suspicion is not reasonable unless officers have based it on "specific and articulable facts." Id., at 21, 88 S.Ct., at 1880; see also United States v. Brignoni-Ponce, [[422 U.S. 873]], 880, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975). It is not enough to suspect that an individual has committed crimes in the past, harbors unconsummated criminal designs, or has the propensity to commit crimes. On the contrary, before detaining an individual, law enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a criminal act at that moment. See, e.g., Brown v. Texas, [[443 U.S. 47]], 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (to detain, officers must "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity"); Terry, supra, [[392 U.S. 1|392 U.S., at 30]], 88 S.Ct., at 1884-85 (reasonable suspicion exists only where policeman reasonably concludes, inter alia, "that criminal activity may be afoot"). The rationale for permitting brief, warrantless seizures is, after all, that it is impractical to demand strict compliance with the Fourth Amendment's ordinary probable-cause requirement in the face of ongoing or imminent criminal activity demanding "swift action predicated upon the on-the-spot observations of the officer on the beat." Terry, supra, at 20, 88 S.Ct., at 1879. Observations raising suspicions of past criminality demand no such immediate action, but instead should appropriately trigger routine police investigation, which may ultimately generate sufficient information to blossom into probable cause.
Evaluated against this standard, the facts about Andrew Sokolow known to the DEA agents at the time they stopped him fall short of reasonably indicating that he was engaged at the time in criminal activity. It is highly significant that the DEA agents stopped Sokolow because he matched one of the DEA's "profiles" of a paradigmatic drug courier. In my view, a law enforcement officer's mechanistic application of a formula of personal and behavioral traits in deciding whom to detain can only dull the officer's ability and determination to make sensitive and fact-specific inferences "in light of his experience," Terry, supra, at 27, 88 S.Ct., at 1883, particularly in ambiguous or borderline cases. Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's "chameleon-like way of adapting to any particular set of observations." [[831 F.2d 1413]], 1418 (CA9 1987). Compare, e.g., United States v. Moore, [[675 F.2d 802]], 803 (CA6 1982) (suspect was first to deplane), cert. denied, [[460 U.S. 1068]], 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983), with United States v. Mendenhall, [[446 U.S. 544]], 564, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980) (last to deplane), with United States v. Buenaventura-Ariza, [[615 F.2d 29]], 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, [[625 F.2d 9]], 12 (CA4 1980) (one-way tickets), with United States v. Craemer, [[555 F.2d 594]], 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, [[552 F.2d 717]], 720 (CA6 1977) (nonstop fligh ), with United States v. Sokolow, [[808 F.2d 1366]], 1370 (CA9), vacated, [[831 F.2d 1413]] (1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), withUnited States v. Sanford, [[658 F.2d 342]], 343 (CA5 1981) (gym bag), cert. denied, [[455 U.S. 991]], 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982), withSullivan, supra, at 12 (new suitcases); United States v. Smith, [[574 F.2d 882]], 883 (CA6 1978) (traveling alone), with United States v. Fry, [[622 F.2d 1218]], 1219 (CA5 1980) (traveling with companion); United States v. Andrews, [[600 F.2d 563]], 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, [[444 U.S. 878]], 100 S.Ct. 166, 62 L.Ed.2d 108 (1979), withUnited States v. Himmelwright, [[551 F.2d 991]], 992 (CA5) (acted too calmly), cert. denied, [[434 U.S. 902]], 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). In asserting that it is not "somehow" relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, ante, at 10, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case. {{ref|1}}
That the factors comprising the drug courier profile relied on in this case are especially dubious indices of ongoing criminal activity is underscored by Reid v. Georgia, [[448 U.S. 438]], 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), a strikingly similar case. There, four facts, encoded in a drug courier profile, were alleged in support of the DEA's detention of a suspect at the Atlanta Airport. First, Reid had arrived from Fort Lauderdale, Florida, a source city for cocaine. Second, he arrived in the early morning, when law enforcement activity is diminished. Third, he and his companion appeared to have no luggage other than their shoulder bags. And fourth, he and his companion appeared to be trying to conceal the fact that they were traveling together. Id., at 440-441, 100 S.Ct., at 2753-54.
This collection of facts, we held, was inadequate to support a finding of reasonable suspicion. All but the last of these facts, we observed, "describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Id., at 441, 100 S.Ct., at 2754. The sole fact that suggested criminal activity was that Reid "preceded another person and occasionally looked backward at him as they proceeded through the concourse." Ibid. This observation did not of itself provide a reasonable basis for suspecting wrongdoing, for inferring criminal activity from such evidence reflected no more than an " 'inchoate and unparticularized suspicion or "hunch." ' " Ibid., quoting Terry, [[392 U.S. 1|392 U.S., at 27]], 88 S.Ct., at 1883. {{ref|2}}
The facts known to the DEA agents at the time they detained the traveler in this case are scarcely more suggestive of ongoing criminal activity than those in Reid. Unlike traveler Reid, who sought to conceal the fact that he was travelin with a companion, and who even attempted to run away after being approached by a DEA agent, [[448 U.S. 438|448 U.S., at 439]], 100 S.Ct., at 2753, traveler Sokolow gave no indications of evasive activity. On the contrary, the sole behavioral detail about Sokolow noted by the DEA agents was that he was nervous. With news accounts proliferating of plane crashes, near collisions, and air terrorism, there are manifold and good reasons for being agitated while awaiting a flight, reasons that have nothing to do with one's involvement in a criminal endeavor.
The remaining circumstantial facts known about Sokolow, considered either singly or together, are scarcely indicative of criminal activity. Like the information disavowed in Reid as nonprobative, the fact that Sokolow took a brief trip to a resort city for which he brought only carry-on luggage also "describe[s] a very large category of presumably innocent travelers." Id., at 441, 100 S.Ct., at 2754. That Sokolow embarked from Miami, "a source city for illicit drugs," ante, at 3, is no more suggestive of illegality; thousands of innocent persons travel from "source cities" every day and, judging from the DEA's testimony in past cases, nearly every major city in the country may be characterized as a source or distribution city. See, e.g., Buenaventura-Ariza, [[615 F.2d 29|615 F.2d, at 31]], n. 5. That Sokolow had his phone listed in another person's name also does not support the majority's assertion that the DEA agents reasonably believed Sokolow was using an alias; it is commonplace to have one's phone registered in the name of a roommate, which, it later turned out, was precisely what Sokolow had done. {{ref|3}} That Sokolow was dressed in a black jumpsuit and wore gold jewelry also provides no grounds for suspecting wrongdoing, the majority's repeated and unexplained allusions to Sokolow's style of dress notwithstanding. Ante, at 4, 5. For law enforcement officers to base a search, even in part, on a "pop" guess that persons dressed in a particular fashion are likely to commit crimes not only stretches the concept of reasonable suspicion beyond recognition, but also is inimical to the self-expression which the choice of wardrobe may provide.
Finally, that Sokolow paid for his tickets in cash indicates no imminent or ongoing criminal activity. The majority "feel[s] confident" that "[m]ost business travelers . . . purchase airline tickets by credit card or check." Ante, at 8. Why the majority confines its focus only to "business travelers" I do not know, but I would not so lightly infer ongoing crime from the use of legal tender. Making major cash purchases, while surely less common today, may simply reflect the traveler's aversion to, or inability to obtain, plastic money. Conceivably, a person who spends large amounts of cash may be trying to launder his proceeds from past criminal enterprises by converting them into goods and services. But, as I have noted, investigating completed episodes of crime goes beyond the appropriately limited purview of the brief, Terry-style seizure. Moreover, it is unreasonable to suggest that, had Sokolow left the airport, he would have been gone forever and thus immune from subsequent investigation. Ante, at 11. Sokolow, after all, had given the airline his phone number, and the DEA, having ascertained that it was indeed Sokolow's voice on the answering machine at that number, could have learned from that information where Sokolow resided.
The fact is that, unlike the taking of patently evasive action, Florida v. Rodriguez, [[469 U.S. 1]], 6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984), the use of an alias, Florida v. Royer, [[460 U.S. 491]], 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983), the casing of a store, Terry, supra, 39 U.S., at 6, 88 S.Ct., at 1872, or the provision of a reliable report from an informant that wrongdoing is imminent, Illinois v. Gates, [[462 U.S. 213|462 U.S., at 225]]-227, 103 S.Ct., at 2325-2326, nothing about the characteristics shown by airport traveler Sokolow reasonably suggests that criminal activity is afoot. The majority's hasty conclusion to the contrary serves only to indicate its willingness, when drug crimes or antidrug policies are at issue, to give short shrift to constitutional rights. See, e.g., Skinner v. Railway Labor Executives Assn., [[489 U.S. 602]], 636, 109 S.Ct. 1402, 1423, 103 L.Ed.2d 639 (1989) (MARSHALL, J., dissenting). {{ref|4}} In requiring that seizures be based on at least some evidence of criminal conduct, [[831 F.2d 1413|831 F.2d, at 1419]], the Court of Appeals was faithful to the Fourth Amendment principle that law enforcement officers must reasonably suspect a person of criminal activity before they can detain him. Because today's decision, though limited to its facts, ante, at 11, disobeys this important constitutional command, I dissent.
==Notes==
{{note|1|1}} Even if such profiles had reliable predictive value, their utility would be short lived, for drug couriers will adapt their behavior to sidestep detection from profile-focused officers.
{{note|2|2}} Nor was Reid a close case: eight Members of the Court found the challenged detention insupportable, five of whom saw fit to dispose of the case by reversing the court below in a per curiam opinion. In a separate concurrence, Justice Powell, joined by Chief Justice Burger and Justice BLACKMUN, agreed that "the fragmentary facts apparently relied on by the DEA agents" provided "no justification" for Reid's detention. [[448 U.S. 438|448 U.S., at 442]], n. 1, 100 S.Ct., at 2755, n. 1. Only then-Justice REHNQUIST, the author of today's majority opinion, dissented, on the ground that the police conduct involved did not implicate Reid's constitutional rights. Id., at 442, 100 S.Ct., at 2754-55.
{{note|3|3}} That Sokolow was, in fact, using an alias was not known to the DEA agents until after they detained him. Thus, it cannot legitimately be considered as a basis for the seizure in this case.
{{note|4|4}} The majority also contends that it is not relevant that the DEA agents, in forcibly stopping Sokolow rather than simply speaking with him, did not "use the least intrusive means available." Ante, at 10. On the contrary, the manner in which a search is carried out-and particularly whether law enforcement officers have taken needlessly intrusive steps-is a highly important index of reasonableness under Fourth Amendment doctrine. See, e.g., Winston v. Lee, [[470 U.S. 753]], 760-761, 105 S.Ct. 1611, 1616-1617, 84 L.Ed.2d 662 (1985).
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'''City Of Dallas v. Stanglin'''
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| court = United States Supreme Court
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| party1 = CCTY OF DALLAS, et al., Petitioners
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| argued = March 1, 1989.
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<div class='courtopinion'>
Syllabus
For the express purpose of providing a place where teenagers can socialize with each other but not be subject to the potentially detrimental influences of older teenagers and adults, a Dallas ordinance authorizes the licensing of "Class E" dance halls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation. Respondent, whose roller-skating rink and Class E dance hall share a divided floorspace, filed suit in state court to enjoin the ordinance's age and hour restrictions, contending, inter alia, that they violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court upheld the ordinance, but the Texas Court of Appeals struck down the ordinance's age restriction, holding that it violated the First Amendment associational rights of minors.
Held:
1. The ordinance does not infringe on the First Amendment right of association. Respondent's patrons, who may number as many as 1,000 per night, are not engaged in a form of "intimate association." Nor do the opportunities of adults and minors to dance with one another, which might be described as "associational" in common parlance, involve the sort of "expressive association" that the First Amendment has been held to protect. The teenagers who congregate are not members of any organized association, and most are strangers to one another. The dance hall admits all who pay the admission fee, and there is no suggestion that the patrons take positions on public questions or perform other similar activities. Moreover, the Constitution does not recognize a generalized right of "social association" that includes chance encounters in dance halls. Griswold v. Connecticut, [[381 U.S. 479]], 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, distinguished. Pp. 23-25.
2. The ordinance does not violate the Equal Prot ction Clause because there is a rational relationship between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. Respondent's claims-that the ordinance does not meet the city's objectives because adults and teenagers can still associate with one another in places such as his skating rink and that there are other, less intrusive, alternatives to achieve the objectives-misapprehend the nature of rational-basis scrutiny, the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. Under this standard, a classification that has some reasonable basis does not offend the Constitution because it is imperfect. Here, the city could reasonably conclude that teenagers might be more susceptible to corrupting influences if permitted to frequent dance halls with older persons or that limiting dance-hall contacts between adults and teenagers would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, or promiscuous sex. While the city permits teenagers and adults to rollerskate together, skating involves less physical contact than dancing, a differentiation that need not be striking to survive rational-basis scrutiny. Pp. 25-28.
[[744 S.W.2d 165]] (Tex.App.1987), reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 28.
Craig Lee Hopkins, Dallas, Tex., for petitioners.
Daniel J. Sheehan, Jr., Dallas, Tex., for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.
==Notes==
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<div class='courtopinion'>
Petitioner city of Dallas adopted an ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18. Respondent, the owner of one of these "teenage" dance halls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside that age group. We now reverse, holding that the First Amendment secures no such right.
In 1985, in response to requests for dance halls open only to teenagers, the city of Dallas authorized the licensing of "Class E" dance halls. {{ref|1}} The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code § 14-8.1 (1985), restricts the ages of admission to Class E dance halls to persons between the ages of 14 and 18. {{ref|2}} This provision, as enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance's age restriction. The ordinance also limits the hours of operation of Class E dance halls to between 1 p.m. and midnight daily when school is not in session. § 14-5(d)(2).
Respondent operates the Twilight Skating Rink in Dallas and obtained a license for a Class E dance hall. He divided the floor of his roller-skating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while on the other side, persons of all ages skate to the same music-usually soul and "funk" music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5 per person for admission to the dance hall and between $2.50 and $5 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night.
Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket. {{ref|3}} The trial court upheld the ordinance, finding that it was rationally related to the city's legitimate interest in ensuring the safety and welfare of children.
The Texas Court of Appeals upheld the ordinance's time restriction, but it struck down the age restriction. [[744 S.W.2d 165]] (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of "social association," the court said that "the legislative body must show a compelling interest," and the regulation "must be accomplished by the least restrictive means." Id., at 168. The court recognized the city's interest in "protect[ing] minors from detrimental, corrupting influences," ibid., but held that the "City's stated purposes . . . may be achieved in ways that are less intrusive on minors' freedom to associate," id., at 169. The Court of Appeals stated that "[a] child's right of association may not be abridged simply on the premise that he 'might' associate with those who would persuade him into bad habits," and that "neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent." Ibid. We granted certiorari, [[488 U.S. 815]], 109 S.Ct. 51, 102 L.Ed.2d 30 (1988), and now reverse.
The dispositive question n this case is the level of judicial "scrutiny" to be applied to the city's ordinance. Unless laws "create suspect classifications or impinge upon constitutionally protected rights," San Antonio Independent School Dist. v. Rodriguez, [[411 U.S. 1]], 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973), it need only be shown that they bear "some rational relationship to a legitimate state purpose" id., at 44, 93 S.Ct., at 1302. Respondent does not contend that dance-hall patrons are a "suspect classification," but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment.
While the First Amendment does not in terms protect a "right of association," our cases have recognized that it embraces such a right in certain circumstances. In Roberts v. United States Jaycees, [[468 U.S. 609]], 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), we noted two different sorts of "freedom of association" that are protected by the United States Constitution:
"Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion." Id., at 617-618, 104 S.Ct., at 3249.
It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of "intimate human relationships" referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree.
The Dallas ordinance restricts attendance at Class E dance halls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors' ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as "associational" in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons "take positions on public questions" or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, [[481 U.S. 537]], 548, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987).
The cases cited in Roberts recognize that "freedom of speech" means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes-for example, walking down the street or meeting one's friends at a shopping mall-but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons-coming together to engage in recreational dancing-is not protected by the First Amendment. Thus this activity qualifies neither as a form of "intimate association" nor as a form of "expressive association" as those terms were described in Roberts.
Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of "social association" that includes chance encounters in dance halls. The Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, [[381 U.S. 479]], 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965), that "[t]he right to freely associate is not limited to 'political' assemblies, but includes those that 'pertain to the social, legal, and economic benefit' of our citizens." [[744 S.W.2d 165|744 S.W.2d, at 168]], quoting Griswold v. Connecticut, supra, [[381 U.S. 479|381 U.S., at 483]], 85 S.Ct., at 1681. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.
The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives "rational-basis" scrutiny under the Equal Protection Clause. The city has chosen to impose a rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city's Department of Planning and Development, testified:
" '[O]lder kids [whom the ordinance prohibits from entering Class E dance halls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general. . . . And we're concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured.' " [[744 S.W.2d 165|744 S.W.2d, at 168]], n. 3.
A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime.
Respondent claims that this restriction "has no real connection with the City's stated interests and objectives." Brief for Respondent 13. Except for saloons and teenage dance halls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id., at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id., at 15.
We think respondent's arguments misapprehend the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, [[397 U.S. 471]], 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said:
"[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., [[220 U.S. 61]], 78 [31 S.Ct. 337, 340, 55 L.Ed. 369 (1911) ].
'The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, [[228 U.S. 61]], 69-70 [33 S.Ct. 441, 443, 57 L.Ed. 730 (1913) ]. . . .
". . . . [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id., 397 U.S., at 485-486, 90 S.Ct., at 1162 (footnote omitted).
We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, [[427 U.S. 297]], 303-304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976): "[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." See als United States Railroad Retirement Board v. Fritz, [[449 U.S. 166]], 177, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980). The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons. See 7 E. McQuillin, Law of Municipal Corporations § 24.210 (3d ed. 1981) ("Public dance halls have been regarded as being in that category of businesses and vocations having potential evil consequences"). The city could properly conclude that limiting dance-hall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex. {{ref|4}} It is true that the city allows teenagers and adults to roller-skate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny.
We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
==Notes==
{{note|1|1}} Dallas also licenses Class A, B, and C dance halls, which differ in the number of days per week dancing is permitted; Class D is for dance instruction. Persons under 17 must be accompanied by a parent for admission to Class A, B, and C dance halls. Dallas City Code §§ 14-1, 14-8 (1985-1986). A dance-hall license is not needed if the dance is at any of the following locations: a private residence from which the general public is excluded; a place owned by the federal, state, or local government; a public or private elementary school, secondary school, college, or university; a place owned by a religious organization; or a private club. Ibid.
{{note|2|2}} Section 14-8.1 of the Dallas City Code provides:
"(a) No person under the age of 14 years or over the age of 18 years may enter a Class E dance hall.
"(b A person commits an offense if he is over the age of 18 years and:
"(1) enters a Class E dance hall; or
"(2) for the purposes of gaining admittance into a Class E dance hall, he falsely represents himself to be:
"(A) of an age from 14 years through 18 years;
"(B) a licensee or an employee of the dance hall;
"(C) a parent or guardian of a person inside the dance hall;
"(D) a governmental employee in the performance of his duties.
"(c) A licensee or an employee of a Class E dance hall commits an offense if he knowingly allows a person to enter or remain on the premises of a dance hall who is:
"(1) under the age of 14 years; or
"(2) over the age of 18 years.
"(d) It is a defense to prosecution under Subsections (b)(1) and (c)(2) that the person is:
"(1) a licensee or employee of a dance hall;
"(2) a parent or guardian of a person inside the dance hall; or
"(3) a governmental employee in the performance of his duties."
{{note|3|3}} The Court of Appeals held that respondent had standing to assert the associational rights of the teenage patrons of his establishment. [[744 S.W.2d 165]], 168 (1987). That issue has not been raised before us.
{{note|4|4}} The Court considered similar factors in Prince v. Massachusetts, [[321 U.S. 158]], 64 S.Ct. 438, 88 L.Ed. 645 (1944), where it upheld, over claims of infringement on religious freedom and equal protection, a statute prohibiting children under 12 from selling newspapers on the street. After noting that the statute would have been invalid if applied to adults, the Court said:
"The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. . . . Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power." Id., at 168-169, 64 S.Ct., at 443 (footnotes omitted).
See also Bellotti v. Baird, [[443 U.S. 622]], 635, 99 S.Ct. 3035, 3044, 61 L.Ed.2d 797 (1979) (plurality opinion), quoting McKeiver v. Pennsylvania, [[403 U.S. 528]], 550, 91 S.Ct. 1976, 1989, 29 L.Ed.2d 647 (1971) (plurality opinion) ("State is entitled to adjust its legal system to account for children's vulnerability and their need for 'concern, . . . sympathy, and . . . paternal attention' "); Ginsberg v. New York, [[390 U.S. 629]], 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding right of State to prohibit sale of "girlie" magazines to minors).
</div>
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'''Talk:City Of Dallas v. Stanglin/Opinion of the Court'''
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'''City Of Dallas v. Stanglin/Concurrence Stevens'''
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<div class='courtopinion'>
Justice STEVENS, with whom Justice BLACKMUN joins, concurring in the judgment.
In my opinion the opportunity to make friends and enjoy the company of other people-in a dance hall or elsewhere-is an aspect of liberty protected by the Fourteenth Amendment. For that reason, I believe the critical issue in this case involves substantive due process rather than the First Amendment right of association. Nonetheless, I agree with the Court that the city has adequately justified the ordinance's modest impairment of the liberty of teenagers. Indeed, I suspect that the ordinance actually gives teenagers greater opportunity to associate than they would have if the Class E dance-hall provision were invalidated. I therefore join the Court's judgment.
==Notes==
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'''490 U.S. 19'''
#REDIRECT [[City Of Dallas v. Stanglin]]
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'''109 S.Ct. 1591'''
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'''104 L.Ed.2d 18'''
#REDIRECT [[City Of Dallas v. Stanglin]]
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*490 U.S. 19
*109 S.Ct. 1591
*104 L.Ed.2d 18
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'''Mississippi Band Of Choctaw Indians v. Holyfield'''
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| court = United States Supreme Court
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| party1 = MOSSISSIPPI BAND OF CHOCTAW INDIANS, Appellant
| party2 = Orrey Curtiss HOLYFIELD, et ux., J.B., Natural Mother and W.J., Natural Father.
| casename = Mississippi Band Of Choctaw Indians v. Holyfield
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| argued = Jan. 11, 1989.
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<div class='courtopinion'>
Syllabus
On the basis of extensive evidence indicating that large numbers of Indian children were being separated from their families and tribes and were being placed in non-Indian homes through state adoption, foster care, and parental rights termination proceedings, and that this practice caused serious problems for the children, their parents, and their tribes, Congress enacted the Indian Child Welfare Act of 1978 (ICWA), which, inter alia, gives tribal courts exclusive jurisdiction over custody proceedings involving an Indian child "who resides or is domiciled within" a tribe's reservation. This case involves the status of twin illegitimate babies, whose parents were enrolled members of appellant Tribe and residents and domiciliaries of its reservation in Neshoba County, Mississippi. After the twins' births in Harrison County, some 200 miles from the reservation, and their parents' execution of consent-to-adoption forms, they were adopted in that county's Chancery Court by the appellees Holyfield, who were non-Indian. That court subsequently overruled appellant's motion to vacate the adoption decree, which was based on the assertion that under the ICWA exclusive jurisdiction was vested in appellant's tribal court. The Supreme Court of Mississippi affirmed, holding, among other things, that the twins were not "domiciled" on the reservation under state law, in light of the Chancery Court's findings (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. Therefore, the court said, the twins' domicile was in Harrison County, and the Chancery Court properly exercised jurisdiction over the adoption proceedings.
Held: The twins were "domiciled" on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. 42-54.
(a) Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. In fact, the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of "domicile," whereby different rules could apply from time to time to the same Indian child, simply as a result of his or her being moved across state lines. Pp. 43-47.
(b) The generally accepted meaning of the term "domicile" applies under the ICWA to the extent it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well-settled common-law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. This result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation. Pp. 47-53.
511 So.2d 918 (Miss.1987), reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, post, p. 54.
Edwin R. Smith, Meridian, Miss., for appellant.
Edward O. Miller, Gulfport, Miss., for appellees.
Justice BRENNAN delivered the opinion of the Court.
==Notes==
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'''Talk:Mississippi Band Of Choctaw Indians v. Holyfield'''
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'''Mississippi Band Of Choctaw Indians v. Holyfield/Opinion of the Court'''
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<div class='courtopinion'>
This appeal requires us to construe the provisions of the Indian Child Welfare Act that establish exclusive tribal jurisdiction over child custody proceedings involving Indian children domiciled on the tribe's reservation.
* A.
The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called "[t]he wholesale removal of Indian children from their homes, . . . the most tragic aspect of Indian life today." Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id., at 15; see also H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report), U.S.Code Cong. & Admin.News 1978, pp. 7530, 7531. Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and during the year 1971-1972 nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence, {{ref|1}} as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings.
Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the ICWA. {{ref|2}} While much of the testimony again focused on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves of the massive removal of their children. For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association, testified as follows:
"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. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships." 1978 Hearings, at 193.
See also id., at 62. {{ref|3}} Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:
"One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child." Id., at 191-192. {{ref|4}}
The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found:
"(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . .;
"(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
"(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, 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]].
At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe," as well as for wards of tribal courts regardless of domicile. {{ref|5}} Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court.
Various other provisions of ICWA Title I set procedural and substantive standards for those child custody proceedings that do take place in state court. The procedural safeguards include requirements concerning notice and appointment of counsel; parental and tribal rights of intervention and petition for invalidation of illegal proceedings; procedures governing voluntary consent to termination of parental rights; and a ful faith and credit obligation in respect to tribal court decisions. See §§ 1901-1914. The most important substantive requirement imposed on state courts is that of § 1915(a), which, absent "good cause" to the contrary, mandates that adoptive placements be made preferentially with (1) members of the child's extended family, (2) other members of the same tribe, or (3) other Indian families.
The ICWA thus, in the words of the House Report accompanying it, "seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society." House Report, at 23, U.S.Code Cong. & Admin.News 1978, at 7546. It does so by establishing "a Federal policy that, where possible, an Indian child should remain in the Indian community," ibid., and by making sure that Indian child welfare determinations are not based on "a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family." Id., at 24, U.S.Code Cong. & Admin.News 1978, at 7546. {{ref|6}}
This case involves the status of twin babies, known for our purposes as B.B. and G.B., who were born out of wedlock on December 29, 1985. Their mother, J.B., and father, W.J., were both enrolled members of appellant Mississippi Band of Choctaw Indians (Tribe), and were residents and domiciliaries of the Choctaw Reservation in Neshoba County, Mississippi. J.B. gave birth to the twins in Gulfport, Harrison County, Mississippi, some 200 miles from the reservation. On January 10, 1986, J.B. executed a consent-to-adoption form before the Chancery Court of Harrison County. Record 8-10. {{ref|7}} W.J. signed a similar form. {{ref|8}} On January 16, appellees Orrey and Vivian Holyfield {{ref|9}} filed a petition for adoption in the same court, id., at 1-5, and the chancellor issued a Final Decree of Adoption on January 28. Id., at 13-14. {{ref|10}} Despite the court's apparent awareness of the ICWA, {{ref|11}} the adoption decree contained no reference to it, nor to the infants' Indian background.
Two months later the Tribe moved in the Chancery Court to vacate the adoption decree on the ground that under the ICWA exclusive jurisdiction was vested in the tribal court. Id., at 15-18. {{ref|12}} On July 14, 1986, the court overruled the motion, holding that the Tribe "never obtained exclusive jurisdiction over the children involved herein. . . ." The court's one-page opinion relied on two facts in reaching that conclusion. The court noted first that the twins' mother "went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation" and that the parents had promptly arranged for the adoption by the Holyfields. Second, the court stated: "At no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation." Id., at 78.
The Supreme Court of Mississippi affirmed. 511 So.2d 918 (1987). It rejected the Tribe's arguments that the state court lacked jurisdiction and that it, in any event, had not applied the standards laid out in the ICWA. The court recognized that the jurisdictional question turned on whether the twins were domiciled on the Choctaw Reservation. It answered that question as follows:
"At no point in time can it be said the twins resided on or were domiciled within the territory set aside for the reservation. Appellant's argument that living within the womb of their mother qualifies the children's residency on the reservation may be lauded for its creativity; however, apparently it is unsupported by any law within this state, and will not be addressed at this time due to the far-reaching legal ramifications that would occur were we to follow such a complicated tangential course." Id., at 921.
The court distinguished Mississippi cases that appeared to establish the principle that "the domicile of minor children follows that of the parents," ibid.; see Boyle v. Griffin, 84 Miss. 41, [[36 So. 141]] (1904); Stubbs v. Stubbs, 211 So.2d 821 (Miss.1968); see also In re Guardianship of Watson, 317 So.2d 30 (Miss.1975). It noted that "the Indian twins . . . were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So.2d, at 921. Therefore, the court said, the twins' domicile was in Harrison County and the state court properly exercised jurisdiction over the adoption proceedings. Indeed, the court appears to have concluded that, for this reason, none of the provisions of the ICWA was applicable. Ibid. ("[T]hese proceedings . . . actually escape applicable federal law on Indian Child Welfare"). In any case, it rejected the Tribe's contention that the requirements of the ICWA applicable in state courts had not been followed: "[T]he judge did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc." Ibid. {{ref|13}}
Because of the centrality of the exclusive tribal jurisdiction provision to the overall scheme of the ICWA, as well as the conflict between this decision of the Mississippi Supreme Court and those of several other state courts, {{ref|14}} we granted plenary review. [[486 U.S. 1021]], 108 S.Ct.1993, 100 L.Ed.2d 225 (1988). {{ref|15}} We now reverse.
Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA. Indeed, some of the ICWA's jurisdictional provisions have a strong basis in pre-ICWA case law in the federal and state courts. See, e.g., Fisher v. District Court, Sixteenth Judicial District of Montana, [[424 U.S. 382]], 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam ) (tribal court had exclusive jurisdiction over adoption proceeding where all parties were tribal members and reservation residents); Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F.Supp. 719 (WD Mich.1973) (tribal court had exclusive jurisdiction over custody of Indian children found to have been domiciled on reservation); Wakefield v. Little Light, 276 Md. 333, [[347 A.2d 228]] (1975) (same); In re Adoption of Buehl, 87 Wash.2d 649, [[555 P.2d 1334]] (1976) (state court lacked jurisdiction over custody of Indian children placed in off-reservation foster care by tribal court order); see also In re Lelah-puc-ka-chee, [[98 F. 429]] (ND Iowa 1899) (state court lacked jurisdiction to appoint guardian for Indian child living on reservation). In enacting the ICWA Congress confirmed that, in child custody proceedings involving Indian children domiciled on the reservation, tribal jurisdiction was exclusive as to the States.
The state-court proceeding at issue here was a "child custody proceeding." That term is defined to include any " 'adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." [[25 U.S.C. § 1903]](1)(iv). Moreover, the twins were "Indian children." See [[25 U.S.C. § 1903]](4). The sole issue in this case is, as the Supreme Court of Mississippi recognized, whether the twins were "domiciled" on the reservation. {{ref|16}}
* The meaning of "domicile" in the ICWA is, of course, a matter of Congress' intent. The ICWA itself does not define it. The initial question we must confront is whether there is any reason to believe that Congress intended the ICWA definition of "domicile" to be a matter of state law. While the meaning of a federal statute is necessarily a federal question in the sense that its construction remains subject to this Court's supervision, see P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 566 (3d ed. 1988); cf. Reconstruction Finance Corporation v. Beaver County, 32 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946), Congress sometimes intends that a statutory term be given content by the application of state law. De Sylva v. Ballentine, [[351 U.S. 570]], 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956); see also Beaver County, supra; Helvering v. Stuart, [[317 U.S. 154]], 161-162, 63 S.Ct. 140, 144-145, 87 L.Ed. 154 (1942). We start, however, with the general assumption that "in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, [[318 U.S. 101]], 104, 63 S.Ct. 483, 485, 87 L.Ed. 640 (1943); NLRB v. Natural Gas Utility Dist. of Hawkins County, [[402 U.S. 600]], 603, 91 S.Ct. 1746, 1749, 29 L.Ed.2d 206 (1971); Dickerson v. New Banner Institute, Inc., [[460 U.S. 103]], 119, 103 S.Ct. 986, 995, 74 L.Ed.2d 845 (1983). One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. Jerome, supra, [[318 U.S. 101|318 U.S., at 104]], 63 S.Ct., at 485; Dickerson, supra, [[460 U.S. 103|460 U.S., at 119]]-120, 103 S.Ct., at 995-996; United States v. Pelzer, [[312 U.S. 399]], 402-403, 61 S.Ct. 659, 660-661, 85 L.Ed. 913 (1941). Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended. E.g., Beaver County, supra, 328 U.S., at 209, 66 S.Ct., at 995 (statute permitting States to apply their diverse local tax laws to real property of certain Government corporations). A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." Jerome, supra, [[318 U.S. 101|318 U.S., at 104]], 63 S.Ct., at 486; Dickerson, supra, [[460 U.S. 103|460 U.S., at 119]]-120, 103 S.Ct., at 995; Pelzer, [[312 U.S. 399|312 U.S., at 402]]-403, 61 S.Ct., at 661. For this reason, "we look to the purpose of the statute to ascertain what is intended." Id., at 403, 61 S.Ct., at 661.
In NLRB v. Hearst Publications, Inc., [[322 U.S. 111]], 64 S.Ct. 851, 88 L.Ed. 1170 (1944), we rejected an argument that the term "employee" as used in the Wagner Act should be defined by state law. We explained our conclusion as follows:
"Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no . . . patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is . . . intended to solve a national problem on a national scale. . . . Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by . . . varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems." Id., at 123, 64 S.Ct., at 857.
See also Natural Gas Utility Dist., supra, [[402 U.S. 600|402 U.S., at 603]]-604, 91 S.Ct., at 1749. For the two principal reasons that follow, we believe that what we said of the Wagner Act applies equally well to the ICWA.
First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities. {{ref|17}} More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to orrect. See [[25 U.S.C. § 1901]](5) (state "judicial bodies . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families"). {{ref|18}} Under these circumstances it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.
Second, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of domicile. An example will illustrate. In a case quite similar to this one, the New Mexico state courts found exclusive jurisdiction in the tribal court pursuant to § 1911(a), because the illegitimate child took the reservation domicile of its mother at birth-notwithstanding that the child was placed in the custody of adoptive parents 2 days after its off-reservation birth and the mother executed a consent to adoption 10 days later. In re Adoption of Baby Child, 102 N.M. 735, 737-738, [[700 P.2d 198]], 200-201 (App.1985). {{ref|19}} Had that mother traveled to Mississippi to give birth, rather than to Albuquerque, a different result would have obtained if state-law definitions of domicile applied. The same, presumably, would be true if the child had been transported to Mississippi for adoption after her off-reservation birth in New Mexico. While the child's custody proceeding would have been subject to exclusive tribal jurisdiction in her home State, her mother, prospective adoptive parents, or an adoption intermediary could have obtained an adoption decree in state court merely by transporting her across state lines. {{ref|20}} Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind. {{ref|21}}
We therefore think it beyond dispute that Congress intended a uniform federal law of domicile for the ICWA. {{ref|22}}
It remains to give content to the term "domicile" in the circumstances of the present case. The holding of the Supreme Court of Mississippi that the twin babies were not domiciled on the Choctaw Reservation appears to have rested on two findings of fact by the trial court: (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents. 511 So.2d, at 921; see Record 78. The question before us, therefore, is whether under the ICWA definition of "domicile" such facts suffice to render the twins nondomiciliaries of the Reservation.
We have often stated that in the absence of a statutory definition we "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, [[369 U.S. 1]], 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); Russello v. United States, [[464 U.S. 16]], 21, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983). We do so, of course, in the light of the " 'object and policy' " of the statute. Mastro Plastics Corp. v. NLRB, [[350 U.S. 270]], 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956), quoting United States v. Heirs of Boisdore, 8 How. 113, 122, 12 L.Ed. 1009 (1849). We therefore look both to the generally accepted meaning of the term "domicile" and to the purpose of the statute.
That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general state-law principles to determine "the ordinary meaning of the words used." Well-settled state law can inform our understanding of what Congress had in mind when it employed a term it did not define. Accordingly, we find it helpful to borrow established common-law principles of domicile to the extent that they are not inconsistent with the objectives of the congressional scheme.
"Domicile" is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. See generally Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 17-38 (4th ed. 1986); R. Weintraub, Commentary on the Conflict of Laws 12-24 (2d ed. 1980). "Domicile" is not necessarily synonymous with "residence," Perri v. Kisselbach, 34 N.J. 84, 87, [[167 A.2d 377]], 379 (1961), and one can reside in one place but be domiciled in another, District of Columbia v. Murphy, [[314 U.S. 441]], 62 S.Ct. 303, 86 L.Ed. 329 (1941); In re Estate of Jones, 192 Iowa 78, 80, [[182 N.W. 227]], 228 (1921). For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there. Texas v. Florida, [[306 U.S. 398]], 424, 59 S.Ct. 563, 576, 83 L.Ed. 817 (1939). One acquires a "domicile of origin" at birth, and that domicile continues until a new one (a "domicile of choice") is acquired. Jones, supra, 192 Iowa, at 81, [[182 N.W. 227|182 N.W., at 228]]; In re Estate of Moore, 68 Wash.2d 792, 796, [[415 P.2d 653]], 656 (1966). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Yarborough v. Yarborough, [[290 U.S. 202]], 211, 54 S.Ct. 181, 185, 78 L.Ed. 269 (1933). In the case of an illegitimate child, that has traditionally meant the domicile of its mother. Kowalski v. Wojtkowski, 19 N.J. 247, 258, [[116 A.2d 6]], 12 (1955); Moore, supra, 68 Wash.2d, at 796, [[415 P.2d 653|415 P.2d, at 656]]; Restatement § 14(2), § 22, Comment c; 25 Am.Jur.2d, Domicile § 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicile of origin will be in a place where the child has never been." Restatement § 14, Comment b.
It is undisputed in this case that the domicile of the mother (as well as the father) has been, at all relevant times, on the Choctaw Reservation. Tr. of Oral Arg. 28-29. Thus, it is clear that at their birth the twin babies were also domiciled on the reservation, even though they themselves had never been there. The statement of the Supreme Court of Mississippi that "[a]t no point in time can it be said the twins . . . were domiciled within the territory set aside for the reservation," 511 So.2d, at 921, may be a correct statement of that State's law of domicile, but it is inconsistent with generally accepted doctrine in this country and cannot be what Congress had in mind when it used the term in the ICWA.
Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. See 25 U.S.C. §§ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"), 1902 ("promote the stability and security of Indian tribes"). {{ref|23}} The numerous prerogatives accorded the tribes through the ICWA's substantive provisions, e.g., §§ 1911(a) (exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention), 1912(a) (notice), 1914 (right to petition for invalidation of state-court action), 1915(c) (right to alter presumptive placement priorities applicable to state-court actions), 1915(e) (right to obtain records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.
In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture. {{ref|24}} Congress determined to subject such placements to the ICWA's jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents. As the 1977 Final Report of the congressionally established American Indian Policy Review Commission stated, in summarizing these two concerns, "[r]emoval of Indian children from their cultural setting seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children." Senate Report, at 52. {{ref|25}}
These congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme is inconsistent with what Congress intended. {{ref|26}} See in RE adoption oF child oF indiaN heritage, 111 N.J. 155, 168-171, [[543 A.2d 925]], 931-933 (1988). The appellees in this case argue strenuously that the twins' mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields. But that was precisely part of Congress' concern. Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish. {{ref|27}} The Supreme Court of Utah expressed this well in its scholarly and sensitive opinion in what has become a leading case on the ICWA:
"To the extent that [state] abandonment law operates to permit [the child's] mother to change [the child's] domicile as part of a scheme to facilitate his adoption by non-Indians while she remains a domiciliary of the reservation, it conflicts with and undermines the operative scheme established by subsections [1911(a) ] and [1913(a) ] to deal with children of domiciliaries of the reservation and weakens considerably the tribe's ability to assert its interest in its children. The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize. It is precisely in recognition of this relationship, however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for nondomiciliary Indian children. [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." In re Adoption of Halloway, 732 P.2d 962, 969-970 (1986).
We agree with the Supreme Court of Utah that the law of domicile Congress used in the ICWA cannot be one that permits individual reservation-domiciled tribal members to defeat the tribe's exclusive jurisdiction by the simple expedient of giving birth and placing the child for adoption off the reservation. Since, for purposes of the ICWA, the twin babies in this case were domiciled on the reservation when adoption proceedings were begun, the Choctaw tribal court possessed exclusive jurisdiction pursuant to [[25 U.S.C. § 1911]](a). The Chancery Court of Harrison County was, accordingly, without jurisdiction to enter a decree of adoption; under ICWA § 104, [[25 U.S.C. § 1914]], its decree of January 28, 1986, must be vacated.
We are not unaware that over three years have passed since the twin babies were born and placed in the Holyfield home, and that a court deciding their fate today is not writing on a blank slate in the same way it would have in January 1986. Three y ars' development of family ties cannot be undone, and a separation at this point would doubtless cause considerable pain.
Whatever feelings we might have as to where the twins should live, however, it is not for us to decide that question. We have been asked to decide the legal question of who should make the custody determination concerning these children-not what the outcome of that determination should be. The law places that decision in the hands of the Choctaw tribal court. Had the mandate of the ICWA been followed in 1986, of course, much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to "reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation." Halloway, [[732 P.2d 962|732 P.2d, at 972]]. It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the Tribe-and perhaps the children themselves-in having them raised as part of the Choctaw community. {{ref|28}} Rather, "we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy." Ibid.
The judgment of the Supreme Court of Mississippi is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
==Notes==
{{note|1|1}} For example, Dr. Joseph Westermeyer, a University of Min esota social psychiatrist, testified about his research with Indian adolescents who experienced difficulty coping in white society, despite the fact that they had been raised in a purely white environment:
"[T]hey were raised with a white cultural and social identity. They are raised in a white home. They attended, predominantly white schools, and in almost all cases, attended a church that was predominantly white, and really came to understand very little about Indian culture, Indian behavior, and had virtually no viable Indian identity. They can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a historical figure but were not a viable contemporary social group.
"Then during adolescence, they found that society was not to grant them the white identity that they had. They began to find this out in a number of ways. For example, a universal experience was that when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from the parents not to date these Indian children. . . .
"The other experience was derogatory name calling in relation to their racial identity. . . .
* * * * *
"[T]hey were finding that society was putting on them an identity which they didn't possess and taking from them an identity that they did possess." 1974 Hearings, at 46.
{{note|2|2}} Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess. (1977) (hereinafter 1977 Hearings); Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978) (hereinafter 1978 Hearings).
{{note|3|3}} These sentiments were shared by the ICWA's principal sponsor in the House, Rep. Morris Udall, see 124 Cong.Rec. 38102 (1978) ("Indian tribes and Indian people are being drained of their children and, as a result, their future as a tribe and a people is being placed in jeopardy"), and its minority sponsor, Rep. Robert Lagomarsino, see ibid. ("This bill is directed at conditions which . . . threaten . . . the future of American Indian tribes . . .").
{{note|4|4}} One of the particular points of concern was the failure of non-Indian child welfare workers to understand the role of the extended family in Indian society. The House Report on the ICWA noted: "An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights." House Report, at 10, U.S.Code Cong. & Admin.News 1978, at 7532. At the conclusion of the 1974 Senate hearings, Senator Abourezk noted the role that such extended families played in the care of children: "We've had testimony here that in Indian communities throughout the Nation there is no such thing as an abandoned child because when a child does have a need for parents for one reason or another, a relative or a friend will take that child in. It's the extended family concept." 1974 Hearings, at 473. See also Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F.Supp. 719 (WD Mich.1973) (discussing custom of extended family and tribe assuming responsibility for care of orphaned children).
{{note|5|5}} Section 1911(a) reads in full:
"An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child."
{{note|6|6}} The quoted passages are from the House Report's discussion of § 1915, in which the ICWA attempts to accomplish these aims, in regard to nondomiciliaries of the reservation, through the establishment of standards for state-court proceedings. In regard to reservation domiciliaries, these goals are pursued through the establishment of exclusive tribal jurisdiction under § 1911(a).
Beyond its jurisdictional and other provisions concerning child custody proceedings, the ICWA also created, in its Title II, a program of grants to Indian tribes and organizations to aid in the establishment of child welfare programs. See 25 U.S.C. §§ 1931-1934.
{{note|7|7}} Section 103(a) of the ICWA, [[25 U.S.C. § 1913]](a), requires that any voluntary consent to termination of parental rights be executed in writing and recorded before a judge of a "court of competent jurisdiction," who must certify that the terms and consequences of the consent were fully explained and understood. Section 1913(a) also provides that any consent given prior to birth or within 10 days thereafter is invalid. In this case the mother's consent was given 12 days after the birth. See also n. 26, infra.
{{note|8|8}} W.J.'s consent to adoption was signed before a notary public in Neshoba County on January 11, 1986. Record 11-12. Only on June 3, 1986, however-well after the decree of adoption had been entered and after the Tribe had filed suit to vacate that decree-did the chancellor of the Chancery Court certify that W.J. had appeared before him in Harrison County to execute the consent to adoption. Id., at 12-A.
{{note|9|9}} Appellee Orrey Holyfield died during the pendency of this appeal.
{{note|10|10}} Mississippi adoption law provides for a 6-month waiting period between interlocutory and final decrees of adoption, but grants the chancellor discretionary authority to waive that requirement and immediately enter a final decree of adoption. See Miss.Code Ann. § 93-17-13 (1972). The chancellor id so here, Record 14, with the result that the final decree of adoption was entered less than one month after the babies' birth.
{{note|11|11}} The chancellor's certificates that the parents had appeared before him to consent to the adoption recited that "the Consent and Waiver was given in full compliance with Section 103(a) of Public Law 95-608" (i.e., [[25 U.S.C. § 1913]](a)). Record 10, 12-A.
{{note|12|12}} The ICWA specifically confers standing on the Indian child's tribe to participate in child custody adjudications. Title [[25 U.S.C. § 1914]] authorizes the tribe (as well as the child and its parents) to petition a court to invalidate any foster care placement or termination of parental rights under state law "upon a showing that such action violated any provision of sections 101, 102, and 103" of the ICWA. 92 Stat. 3072. See also § 1911(c) (Indian child's tribe may intervene at any point in state-court proceedings for foster care placement or termination of parental rights). "Termination of parental rights" is defined in § 1903(1)(ii) as "any action resulting in the termination of the parent-child relationship."
{{note|13|13}} The lower court may well have fulfilled the applicable ICWA procedural requirements. But see n. 8, supra, and n. 26, infra. It clearly did not, however, comply with or even take cognizance of the substantive mandate of § 1915(a): "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, 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." (Emphasis added.) Section 1915(e), moreover, requires the court to maintain records "evidencing the efforts to comply with the order of preference specified in this section." Notwithstanding the Tribe's argument below that § 1915 had been violated, see Brief for Appellant 20-22 and Appellant's Brief in Support of Petition for Rehearing 11-12 in No. 57,659 (Miss.Sup.Ct.), the Mississippi Supreme Court made no reference to it, merely stating in conclusory fashion that the "minimum federal standards" had been met. 511 So.2d, at 921.
{{note|14|14}} See, e.g., In re Adoption of Halloway, [[732 P.2d 962]] (Utah 1986); In re Adoption of Baby Child, 102 N.M. 735, [[700 P.2d 198]] (App.1985); In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, [[635 P.2d 187]] (App.1981), cert. denied sub nom. Catholic Social Services of Tucson v. P.C., [[455 U.S. 1007]], 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982).
{{note|15|15}} Because it was unclear whether this case fell within the Court's appellate jurisdiction, we postponed consideration of our jurisdiction to the hearing on the merits. Pursuant to the version of [[28 U.S.C. § 1257]](2) applicable to this appeal, we have appellate jurisdiction to review a state-court judgment "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." It is sufficient that the validity of the state statute be challenged and sustained as applied to a particular set of facts. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, [[489 U.S. 468]], 473-474, n. 4, 109 S.Ct. 1248, 1252, n. 4, 103 L.Ed.2d 488 (1989); Dahnke-Walker Milling Co. v. Bondurant, [[257 U.S. 282]], 288-290, 42 S.Ct. 106, 107-108, 66 L.Ed. 239 (1921). In practice, whether such an as-applied challenge comes within our appellate jurisdiction often turns on how that challenge is framed. See Hanson v. Denckla, [[357 U.S. 235]], 244, 78 S.Ct. 1228, 1234, 2 L.Ed.2d 1283 (1958); Memphis Natural Gas Co. v. Beeler, [[315 U.S. 649]], 650-651, 62 S.Ct. 857, 859-860, 86 L.Ed. 1090 (1942).
In the present case appellants argued below "that the state lower court jurisdiction over these adoptions was preempted by plenary federal legislation." Brief for Appellant in No. 57,659 (Miss.Sup.Ct.), p. 5. Whether this formulation "squarely" challenges the validity of the state adoption statute as applied, see Japan Line, Ltd. v. County of Los Angeles, [[441 U.S. 434]], 440-441, 99 S.Ct. 1813, 1817, 60 L.Ed.2d 336 (1979), or merely asserts a federal right or immunity, [[28 U.S.C. § 1257]](3), is a difficult question to which the answer must inevitably be somewhat arbitrary. Since in the near future our appellate jurisdiction will extend only to rare cases, see Pub.L. 100-352, 102 Stat. 662, it is also a question of little prospective importance. Rather than attempting to resolve this question, therefore, we think it advisable to assume that the appeal is improper and to consider by writ of certiorari the important question this case presents. See Spencer v. Texas, [[385 U.S. 554]], 557, n. 3, 87 S.Ct. 648, 650, n. 3, 17 L.Ed.2d 606 (1967). We therefore dismiss the appeal, treat the papers as a petition for writ of certiorari, [[28 U.S.C. § 2103]], and grant the petition. (For convenience, we will continue to refer to the parties as appellant and appellees.)
{{note|16|16}} "Reservation" is defined quite broadly for purposes of the ICWA. See [[25 U.S.C. § 1903]](10). There is no dispute that the Choctaw Reservation falls within that definition.
Section 1911(a) does not apply "where such jurisdiction is otherwise vested in the State by existing Federal law." This proviso would appear to refer to Pub.L. 280, 67 Stat. 588, as amended, which allows States under certain conditions to assume civil and criminal jurisdiction on the reservations. Title [[25 U.S.C. § 1918]] permits a tribe in that situation to reassume jurisdiction over child custody proceedings upon petition to the Secretary of the Interior. The State of Mississippi has never asserted jurisdiction over the Choctaw Reservation under Public Law 280. See F. Cohen, Handbook of Federal Indian Law 362-363, and nn. 122-125 (1982); cf. United States v. John, [[437 U.S. 634]], 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978).
{{note|17|17}} This conclusion is inescapable from a reading of the entire statute, the main effect of which is to curtail state authority. See especially §§ 1901, 1911-1916, 1918.
{{note|18|18}} See also 124 Cong.Rec. 38103 (1978) (letter from Rep. Morris K. Udall to Assistant Attorney General Patricia M. Wald) ("[S]tate courts and agencies and their procedures share a large part of the responsibility" for the crisis threatening "the future and integrity of Indian tribes and Indian families"); House Report, at 19, U.S.Code Cong. & Admin.News 1978, at 7541 ("Contributing to this problem has been the failure of State officials, agencies, and procedures to take into account the special problems and circumstances of Indian families and the legitimate interest of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own future"). See also In re Adoption of Halloway, [[732 P.2d 962|732 P.2d, at 969]] (Utah state court "quite frankly might be expected to be more receptive than a tribal court to [Indian child's] placement with non-Indian adoptive parents. Yet this receptivity of the non-Indian forum to non-Indian placement of an Indian child is precisely one of the evils at which the ICWA was aimed").
{{note|19|19}} Some details of the Baby Child case are taken from the briefs in Pino v. District Court, Bernalillo County, [[469 U.S. 1031]], 105 S.Ct. 501, 83 L.Ed.2d 393 (1984). That appeal was dismissed under this Court's Rule 53, [[472 U.S. 1001]], 105 S.Ct. 2693, 86 L.Ed.2d 709 (1985), following the appellant's successful collateral attack, in the case cited in the text, on the judgment from which appeal had been taken.
{{note|20|20}} Nor is it inconceivable that a State might apply its law of domicile in such a manner as to render inapplicable § 1911(a) even to a child who had lived several years on the reservation but was removed from it for the purpose of adoption. Even in the less extreme case, a state-law definition of domicile would likely spur the development of an adoption brokerage business. Indian children, whose parents consented (with or without financial inducement) to give them up, could be transported for adoption to States like Mississippi where the law of domicile permitted the proceedings to take place in state court.
{{note|21|21}} For this reason, the general rule that domicile is determined according to the law of the forum, see Restatement (Second) of Conflict of Laws § 13 (1971) (hereinafter Restatement), can have no application here.
{{note|22|22}} We note also the likelihood that, had Congress intended a state-law definition of domicile, it would have said so. Where Congress did intend that ICWA terms be defined by reference to other than federal law, it stated this explicitly. See § 1903(2) ("extended family member" defined by reference to tribal law or custom); § 1903(6) ("Indian custodian" defined by reference to tribal law or custom and to state law).
{{note|23|23}} See also supra, at 34, and n. 3.
{{note|24|24}} In large part the concerns that emerged during the congressional hearings on the ICWA were based on studies showing recurring developmental problems encountered during adolescence by Indian children raised in a white environment. See n. 1, supra. § e also 1977 Hearings, at 114 (statement of American Academy of Child Psychiatry); S.Rep. No. 95-597, p. 43 (1977) (hereinafter Senate Report). More generally, placements in non-Indian homes were seen as "depriving the child of his or her tribal and cultural heritage." Id., at 45; see also 124 Cong.Rec. 38102-38103 (1978) (remarks of Rep. Lagomarsino). The Senate Report on the ICWA incorporates the testimony in this sense of Louis La Rose, chairman of the Winnebago Tribe, before the American Indian Policy Review Commission:
"I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption courts, erase all of their records and send them off to some nebulous family that has a value system that is A-1 in the State of Nebraska and that child reaches 16 or 17, he is a little brown child residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think . . . they destroy him." Senate Report, at 43.
Thus, the conclusion seems justified that, as one state court has put it, "[t]he Act is based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected." In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz., at 204, [[635 P.2d 187|635 P.2d, at 189]].
{{note|25|25}} While the statute itself makes clear that Congress intended the ICWA to reach voluntary as well as involuntary removal of Indian children, the same conclusion can also be drawn from the ICWA's legislative history. For example, the House Report contains the following expression of Congress' concern with both aspects of the problem:
"One of the effects of our national paternalism has been to so alienate some Indian [parents] from their society that they abandon their children at hospitals or to welfare departments rather than entrust them to the care of relatives in the extended family. Another expression of it is the involuntary, arbitrary, and unwarranted separation of families." House Report, at 12, U.S.Code Cong. & Admin.News 1978, at 7534.
{{note|26|26}} The Bureau of Indian Affairs pointed out, in issuing nonbinding ICWA guidelines for the state courts, that the terms "residence" and "domicile" "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." 44 Fed.Reg. 67584, 67585 (1979). The clear implication is that state law that did tend to undermine the ICWA's purposes could not be taken to express Congress' intent. There is some authority for the proposition that abandonment can effectuate a change in the child's domicile, In re Adoption of Halloway, [[732 P.2d 962|732 P.2d, at 967]], although this may not be the majority rule. See Restatement § 22, Comment e (abandoned child generally retains the domicile of the last-abandoning parent). In any case, as will be seen below, the Supreme Court of Utah declined in the Halloway case to apply Utah abandonment law to defeat the purpose of the ICWA. Similarly, the conclusory statement of the Supreme Court of Mississippi that the twin babies had been "legally abandoned," 511 So.2d, at 921, cannot be determinative of ICWA jurisdiction.
There is also another reason for reaching this conclusion. The predicate for the state court's abandonment finding was the parents' consent to termination of their parental rights, recorded before a judge of the state Chancery Court. ICWA § 103(a), [[25 U.S.C. § 1913]](a), requires, however, that such a consent be recorded before "a judge of a court of competent jurisdiction." See n. 7, supra. In the case of reservation-domiciled children, that could be only the tribal court. The children therefore could not be made non-domiciliaries of the reservation through any such state-court consent.
{{note|27|27}} It appears, in fact, that all Choctaw women give birth off the reservation because of the lack of appropriate obstetric facilities there. See Juris.Statement 4, n. 2. In most cases, of course, the mother and child return to the reservation after the birth, and this would presumably be sufficient to make the child a reservation domiciliary even under the Mississippi court's theory. Application of the Mississippi domicile rule would, however, permit state authorities to avoid the tribal court's exclusive § 1911(a) jurisdiction by removing a newborn from an allegedly unfit mother while in the hospital, and seeking to terminate her parental rights in state court.
{{note|28|28}} We were assured at oral argument that the Choctaw court has the authority under the tribal code to permit adoption by the present adoptive family, should it see fit to do so. Tr. of Oral Arg. 17.
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'''Talk:Mississippi Band Of Choctaw Indians v. Holyfield/Opinion of the Court'''
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| edition = ''Mississippi Band Of Choctaw Indians v. Holyfield'', April 3, 1989 .
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'''Mississippi Band Of Choctaw Indians v. Holyfield/Dissent Stevens'''
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<div class='courtopinion'>
Justice STEVENS, with whom THE CHIEF JUSTICE and Justice KENNEDY join, dissenting.
The parents of these twin babies unquestionably expressed their intention to have the state court exercise jurisdiction over them. J.B. gave birth to the twins at a hospital 200 miles from the reservation, even though a closer hospital was available. Both parents gave their written advance consent to the adoption and, when the adoption was later challenged by the Tribe, they reaffirmed their desire that the Holyfields adopt the two children. As the Mississippi Supreme Court found, "the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So.2d 918, 921 (1987). Indeed, Appellee Vivian Holyfield appears before us today, urging that she be allowed to retain custody of B.B. and G.B.
Because J.B.'s domicile is on the reservation and the children are eligible for membership in the Tribe, the Court today closes the state courthouse door to her. I agree with the Court that Congress intended a uniform federal law of domicile for the Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, and that domicile should be defined with reference to the objectives of the congressional scheme. "To ascertain [the term's] meaning we . . . consider the Congressional history of the Act, the situation with reference to which it was enacted, and the existing judicial precedents, with which Congress may be taken to have been familiar in at least a general way." District of Columbia v. Murphy, [[314 U.S. 441]], 449, 62 S.Ct. 303, 307, 86 L.Ed. 329 (1941). I cannot agree, however, with the cramped definition the Court gives that term. To preclude parents domiciled on a reservation from deliberately invoking the adoption procedures of state court, the Court gives "domicile" a meaning that Congress could not have intended and distorts the delicate balance between individual rights and group rights recognized by the ICWA.
The ICWA was passed in 1978 in response to congressional findings that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies," and that "the States, exercising their recognized jurisdiction ov r Indian child custody proceedings through administrative and judicial bodies, 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(4), (5) (emphasis added). The Act is thus primarily addressed to the unjustified removal of Indian children from their families through the application of standards that inadequately recognized the distinct Indian culture. {{ref|1}}
The most important provisions of the ICWA are those setting forth minimum standards for the placement of Indian children by state courts and providing procedural safeguards to insure that parental rights are protected. {{ref|2}} The Act provides that any party seeking to effect a foster care placement of, or involuntary termination of parental rights to, an Indian child must establish by stringent standards of proof that efforts have been made to prevent the breakup of the Indian family, and that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. §§ 1912(d), (e), (f). Each party to the proceeding has a right to examine all reports and documents filed with the court, and an indigent parent or custodian has the right to appointment of counsel. §§ 1912(b), (c). In the case of a voluntary termination, the ICWA provides that consent is valid only if given after the terms and consequences of the consent have been fully explained, may be withdrawn at any time up to the final entry of a decree of termination or adoption, and even then may be collaterally attacked on the grounds that it was obtained through fraud or duress. § 1913. Finally, because the Act protects not only the rights of the parents, but also the interests of the tribe and the Indian children, the Act sets forth criteria for adoptive, foster care, and preadoptive placements that favor the Indian child's extended family or tribe, and that can be altered by resolution of the tribe. § 1915.
The Act gives Indian tribes certain rights, not to restrict the rights of parents of Indian children, but to complement and help effect them. The Indian tribe may petition to transfer an action in state court to the tribal court, but the Indian parent may veto the transfer. § 1911(b). {{ref|3}} The Act provides for a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones. §§ 1911(c), 1912(a). {{ref|4}} Finally, the tribe may petition the court to set aside a parental termination action upon a showing that the provisions of the ICWA that are designed to protect parents and Indian children have been violated. § 1914. {{ref|5}}
While the Act's substantive and procedural provisions effect a major change in state child custody proceedings, its jurisdictional provision is designed primarily to preserve tribal sovereignty over the domestic relations of tribe members and to confirm a developing line of cases which held that the tribe's exclusive jurisdiction could not be defeated by the temporary presence of an Indian child off the reservation. The legislative history indicates that Congress did not intend "to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits." House Report, at 19, U.S.Code Cong. & Admin.News 1978, at 7541; Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L.Rev. 413, 416 (1980). The apparent intent of Congress was to overrule such decisions as that in In re Cantrell, 159 Mont. 66, [[495 P.2d 179]] (1972), in which the State placed an Indian child, who had lived on a reservation with his mother, in a foster home only three days after he left the reservation to accompany his father on a trip. Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1129 (1979). Congress specifically approved a series of cases in which the state courts declined jurisdiction over Indian children who were wards of the tribal court, In re Adoption of Buehl, 87 Wash.2d 649, [[555 P.2d 1334]] (1976); Wakefield v. Little Light, 276 Md. 33, [[347 A.2d 228]] (1975), or whose parents were temporarily residing off the reservation, Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F.Supp. 719 (WD Mich.1973), but exercised jurisdiction over Indian children who had never lived on a reservation and whose Indian parents were not then residing on a reservation, In re Greybull, 23 Or.App. 674, [[543 P.2d 1079]] (1975); see House Report, at 21, U.S.Code Cong. & Admin.News 1978, at 7543. {{ref|6}} It did not express any disapproval of decisions such as that of the United States Court of Appeals for the Ninth Circuit in United States ex rel. Cobell v. Cobell, [[503 F.2d 790]] (9th Cir.1974), cert. denied, [[421 U.S. 999]], 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975), which indicated that a Montana state court could exercise jurisdiction over an Indian child custody dispute because the parents, "by voluntarily invoking the state court's jurisdiction for divorce purposes, . . . clearly submitted the question of their children's custody to the judgment of the Montana state courts." [[503 F.2d 790|503 F.2d, at 795]] (emphasis deleted).
The Report of the American Indian Policy Review Commission, an early proponent of the ICWA, makes clear the limited purposes that the term "domicile" was intended to serve:
"Domicile is a legal concept that does not depend exclusively on one's physical location at any one given moment in time, rather it is based on the apparent intention of permanent residency. Many Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment and educational opportunities. . . . In these situations, where family ties to the reservation are strong, but the child is temporarily off the reservation, a fairly strong legal argument can be made for tribal court jurisdiction." Report on Federal, State, and Tribal Jurisdiction 86 (Comm.Print 1976). {{ref|7}}
Although parents of Indian children are shielded from the exercise of state jurisdiction when they are temporarily off the reservation, the Act also reflects a recognition that allowing the tribe to defeat the parents' deliberate choice of jurisdiction would be conducive neither to the best interests of the child nor to the stability and security of Indian tribes and families. Section 1911(b), providing for the exercise of concurrent jurisdiction by state and tri al courts when the Indian child is not domiciled on the reservation, gives the Indian parents a veto to prevent the transfer of a state-court action to tribal court. {{ref|8}} "By allowing the Indian parents to 'choose' the forum that will decide whether to sever the parent-child relationship, Congress promotes the security of Indian families by allowing the Indian parents to defend in the court system that most reflects the parents' familial standards." Jones, 21 Ariz.L.Rev., at 1141. As Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians, stated in testimony to the House Subcommittee on Indian Affairs and Public Lands with respect to a different provision:
"The ultimate responsibility for child welfare rests with the parents and we would not support legislation which interfered with that basic relationship." Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess., 62 (1978). {{ref|9}}
If J.B. and W.J. had established a domicile off the reservation, the state courts would have been required to give effect to their choice of jurisdiction; there should not be a different result when the parents have not changed their own domicile, but have expressed an unequivocal intent to establish a domicile for their children off the reservation. The law of abandonment, as enunciated by the Mississippi Supreme Court in this case, does not defeat, but serves the purposes, of the Act. An abandonment occurs when a parent deserts a child and places the child with another with an intent to relinquish all parental rights and obligations. Restatement (Second) of Conflict of Laws § 22, Comment e (1971) (hereinafter Restatement); In re Adoption of Halloway, [[732 P.2d 962]], 966 (Utah 1986). If a child is abandoned by his mother, he takes on the d micile of his father; if the child is abandoned by his father, he takes on the domicile of his mother. Restatement § 22, Comment e; 25 Am.Jur.2d, Domicil § 69 (1966). If the child is abandoned by both parents, he takes on the domicile of a person other than the parents who stands in loco parentis to him. In re Adoption of Halloway, supra, at 966; In re Estate of Moore, 68 Wash.2d 792, 796, [[415 P.2d 653]], 656 (1966); Harlan v. Industrial Accident Comm'n, 194 Cal. 352, [[228 P. 654]] (1924); Restatement § 22, Comment i ; cf. In re Guardianship of D.L.L. and C.L.L., [[291 N.W.2d 278]], 282 (S.D.1980). {{ref|10}} To be effective, the intent to abandon or the actual physical abandonment must be shown by clear and convincing evidence. In re Adoption of Halloway, supra, at 966; C.S. v. Smith, [[483 S.W.2d 790]], 793 (Mo.App.1972). {{ref|11}}
When an Indian child is temporarily off the reservation, but has not been abandoned to a person off the reservation, the tribe has an interest in exclusive jurisdiction. The ICWA expresses the intent that exclusive tribal jurisdiction is not so frail that it should be defeated as soon as the Indian child steps off the reservation. Similarly, when the child is abandoned by one parent to a person off the reservation, the tribe and the other parent domiciled on the reservation may still have an interest in the exercise of exclusive jurisdiction. That interest is protected by the rule that a child abandoned by one parent takes on the domicile of the other. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act's substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm'n, [[411 U.S. 164]], 173, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973); Williams v. Lee, [[358 U.S. 217]], 219-220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1959); Felix v. Patrick, [[145 U.S. 317]], 332, 12 S.Ct. 862, 867, 36 L.Ed. 719 (1892).
The interpretation of domicile adopted by the Court requires the custodian o an Indian child who is off the reservation to haul the child to a potentially distant tribal court unfamiliar with the child's present living conditions and best interests. Moreover, it renders any custody decision made by a state court forever suspect, susceptible to challenge at any time as void for having been entered in the absence of jurisdiction. {{ref|12}} Finally, it forces parents of Indian children who desire to invoke state-court jurisdiction to establish a domicile off the reservation. Only if the custodial parent has the wealth and ability to establish a domicile off the reservation will the parent be able to use the processes of state court. I fail to see how such a requirement serves the paramount congressional purpose of "promot[ing] the stability and security of Indian tribes and families." [[25 U.S.C. § 1902]].
The Court concludes its opinion with the observation that whatever anguish is suffered by the Indian children, their natural parents, and their adoptive parents because of its decision today is a result of their failure to initially follow the provisions of the ICWA. Ante, at 53-54. By holding that parents who are domiciled on the reservation cannot voluntarily avail themselves of the adoption procedures of state court and that all such proceedings will be void for lack of jurisdiction, however, the Court establishes a rule of law that is virtually certain to ensure that similar anguish will be suffered by other families in the future. Because that result is not mandated by the language of the ICWA and is contrary to its purposes, I respectfully dissent.
==Notes==
{{note|1|1}} The House Report found that "Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole." H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report), U.S.Code Cong. & Admin.News 1978, p. 7531. The Senate Report similarly states that the Act was motivated by "reports that an alarmingly high percentage of Indian children were being separated from their natural parents through the actions of nontribal government agencies." S.Rep. No. 95-597, p. 11 (1977). See also 124 Cong.Rec. 12532 (1978) (remarks of Rep. Udall) ("The record developed by the Policy Review Commission, by the Senate Interior Committee in the 94th Congress;
and by the Senate Select Committee on Indian Affairs and our own Interior Committee in the 95th Congress has disclosed what almost amounts to a callous raid on Indian children. Indian children are removed from their parents and families by State agencies for the most specious of reasons in proceedings foreign to the Indian parents"); id., at 38102 (remarks of Rep. Udall) ("Studies have revealed that about 25 percent of all Indian children are removed from their homes and placed in some foster care or adoptive home or institution"); id., at 38103 (remarks of Rep. Lagomarsino) ("For Indians generally and tribes in particular, the continued wholesale removal of their children by nontribal government and private agencies constitutes a serious threat to their existence as ongoing, self-governing communities"); Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 1 (1977) ("It appears that for decades Indian parents and their children have been at the mercy of arbitrary or abusive action of local, State, Federal and private agency officials. Unwarranted removal of children from their homes is common in Indian communities").
{{note|2|2}} "The purpose of the bill (H.R. 12533), introduced by Mr. Udall et al., is to protect the best interests f Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture and by providing for assistance to Indian tribes and organizations in the operation of child and family service programs." House Report, at 8 (footnote omitted), U.S.Code Cong. & Admin.News 1978, at 7530. See also 124 Cong.Rec. 38102 (1978) (remarks of Rep. Udall) ("[The Act] clarifies the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the States. More importantly, it establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with child custody proceedings against them in State agencies or courts").
{{note|3|3}} The statute provides in part:
"(b) Transfer of proceedings; declination by tribal court
"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe." [[25 U.S.C. § 1911]].
{{note|4|4}} See 44 Fed.Reg. 67584, 67586 (1979) ("The Act mandates a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones").
{{note|5|5}} Significantly, the tribe cannot set aside a termination of parental rights on the ground that the adoptive placement provisions of § 1915, favoring placement with the tribe, have not been followed.
{{note|6|6}} None of the cases cited approvingly by Congress involved a deliberate abandonment. In Wakefield v. Little Light, 276 Md. 333, [[347 A.2d 228]] (1975), the court upheld exclusive tribal jurisdiction where it was clear that there was no abandonment. In Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F.Supp. 719 (WD Mich.1973), there was no abandonment, the children had lived on the reservation and were members of the Indian Tribe, and the children's clothing and toys were at a home on the reservation that continued to be available to them. Finally, in In re Adoption of Buehl, 87 Wash.2d 649, [[555 P.2d 1334]] (1976), the child was a ward of the tribal court and an enrolled member of the Tribe.
{{note|7|7}} In a letter to the House of Representatives, the Department of Justice explained its understanding that the provision was addressed to the involuntary termination of parental rights in tribal members by state agencies unaware of exclusive tribal jurisdiction:
"As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280. It is our understanding that this legal principle is often ignored by local welfare organizations and foster homes in cases where they believe Indian children have been neglected, and that S.1214 is designed to remedy this, and to define Indian rights in such cases." House Report, at 35, U.S.Code Cong. & Admin.News 1978, at 7558.
{{note|8|8}} The explanation of this subsection in the House Report reads as follows:
"Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected." Id., at 21, U.S.Code Cong. & Admin.News 1978, at 7544.
In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated:
"Section 101(b) should be amended to prohibit clearly the transfer of a child placement proceeding to a tribal court when any parent or child over the age of 12 objects to the transfer." Id., at 32, U.S.Code Cong. & Admin.News 1978, at 7554.
Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.
{{note|9|9}} Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen's Association) ("We believe the tribe should receive notice in all such cases but where the child is neither a resident nor domiciliary of the reservation intervention should require the consent of the natural parents or the blood relative in whose custody the child has been left by the natural parents. It seems there is a great potential in the provisions of section 101(c) for infringing parental wishes and rights").
{{note|10|10}} The authority of a State to exercise jurisdiction over a child in a child custody dispute when the child is physically present in a State and has been abandoned is also recognized by federal statute. See Parental Kidnaping Prevention Act of 1980, 94 Stat. 3569, [[28 U.S.C. § 1738]]A(c)(2); see also Uniform Child Custody Jurisdiction Act, 9 U.L.A. § 3 (1988).
{{note|11|11}} The Court suggests that there could be no legally effective abandonment because the parents consented to termination of their parental rights before a judge of the state court and not a tribal court judge. Ante, at 51, n. 26. That suggestion ignores the findings of the State Supreme Court that the natural parents did virtually everything they could do to abandon the children to persons outside the reservation: "[T]he Indian twins have never resided outside of Harrison County, Mississippi, and were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So.2d 918, 921 (1987). In any event, even a consent to adoption that does not meet statutory requirements may be effective to constitute an abandonment and change the minor's domicile. See Wilson v. Pierce, 14 Utah 2d 317, 321, [[383 P.2d 925]], 927 (1963); H. Clark, Law of Domestic Relations in the United States 633 (1968).
{{note|12|12}} The facts of In re Adoption of Halloway, [[732 P.2d 962]] (Utah 1986), which the Court cites approvingly, ante, at 52-53, vividly illustrate the problem. In that case, the mother, a member of an Indian Tribe in New Mexico, voluntarily abandoned an Indian child to the custody of the child's maternal aunt off the reservation with the knowledge that the child would be placed for adoption in Utah. The mother learned of the adoption two weeks after the child left the reservation and did not object and, two months later, she executed a consent to adoption. Nevertheless, some two years after the petition for adoption was filed, the Indian Tribe intervened in the proceeding and set aside the adoption. The Tribe argued successfully that regardless of whether the Indian parent consented to it, the adoption was void because she resided on the reservation and thus the tribal court had exclusive jurisdiction. Although the decision in Halloway, and the Court's approving reference to it, may be colored somewhat by the fact that the mother in that case withdrew her consent (a fact which would entitle her to relief even if there were only concurrent jurisdiction, see [[25 U.S.C. § 1913]](c)), the rule set forth by the majority contains no such limitation. As the Tribe acknowledged at oral argument, any adoption of an Indian child effected through a state court will be susceptible of challenge by the Indian tribe no matter how old the child and how long it has lived with its adoptive parents. Tr. of Oral Arg. 15.
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'''Talk:Mississippi Band Of Choctaw Indians v. Holyfield/Dissent Stevens'''
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| edition = ''Mississippi Band Of Choctaw Indians v. Holyfield'', April 3, 1989 .
| source = ''Mississippi Band Of Choctaw Indians v. Holyfield '' from http://bulk.resource.org/courts.gov/
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'''490 U.S. 30'''
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*490 U.S. 30
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'''Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury'''
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| court = United States Supreme Court
| volume = 490
| reporter = U.S.
| page = 66
| party1 = ADERADA HESS CORPORATION, et al., Appellants
| party2 = DIRECTOR, DIVISION OF TAXATION, NEW JERSEY DEPARTMENT OF THE TREASURY.
| casename = Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury
| lowercourt =
| argued = Nov. 29, 1988.
| decided = April 3, 1989
| case no = Nos 87-453, 87-464
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<div class='courtopinion'>
Syllabus
Appellant oil companies do business in New Jersey and are subject to that State's Corporation Business Tax. They are also subject to the federal windfall profit tax on their crude-oil product on, which does not occur in New Jersey. They each sought a deduction for the federal tax in calculating "entire net income" on their 1980 and 1981 state tax returns, but appellee, the Director of the New Jersey Division of Taxation, assessed deficiencies on the ground that the "add-back" provision of the state tax statute prohibited corporations from deducting a federal tax that is "on or measured by profits or income." The State Tax Court affirmed the assessments, but the Appellate Division of the State Superior Court reversed. The State Supreme Court in turn reversed and reinstated the Tax Court's judgment, holding that the windfall profit tax is measured by "profits or income" for the purposes of the add-back provision and that, as so construed, that provision did not violate the Commerce Clause or the Fourteenth Amendment to the Federal Constitution.
Held:
1. The New Jersey tax satisfies all four elements of the test set forth in Complete Auto Transit, Inc. v. Brady, [[430 U.S. 274]], 97 S.Ct. 1076, 51 L.Ed.2d 326, and therefore passes Commerce Clause scrutiny even though the add-back provision denies appellants deductions for windfall profit tax payments. Pp. 72-79.
(a) New Jersey has a "substantial nexus" with the activities that generate appellants' "entire net income," including oil production occurring entirely outside the State, since each appellant's New Jersey operations are part of an integrated "unitary business" that includes crude-oil production. P. 73.
(b) The tax is fairly apportioned, since the part of the "entire net income" to be taxed is determined according to the standard three-factor apportionment formula that this Court has expressly approved. See, e.g., Container Corp. of America v. Franchise Tax Board, [[463 U.S. 159]], 170, 103 S.Ct. 2933, 2943, 77 L.Ed.2d 545. The use of the formula as applied to appellants is not invalid on the ground that the windfall profit tax is an exclusively out-of-state expense, since the costs of a unitary business cannot be deemed confined to the locality in which they are incurred. Id., at 182, 103 S.Ct. at 2949. Pp. 73-75.
(c) The tax does not discriminate against interstate commerce. The add-back provision is not facially discriminatory, since there is no explicit discriminatory design to the tax. Nor does the provision apply exclusively to a localized industry, since it generally excludes any federal tax "on or measured by income or profits," including the nationwide federal income tax. Moreover, appellants concede that no discriminatory motive underlies the provision, which cannot be held to exert pressure on an interstate business to conduct more of its activities in New Jersey. Pp. 75-79.
(d) The tax is "fairly related" to the benefits the State provides appellants, including police and fire protection, a trained work force, and the advantages of a civilized society. P. 79.
2. The New Jersey tax does not violate the Fourteenth Amendment. Pp. 79-80.
107 N.J. 307, [[526 A.2d 1029]] (1987), affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, STEVENS, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 80. O'CONNOR, J., took no part in the consideration or decision of the cases.
Mark L. Evans, for appellants. Mary R. Hamill, Trenton, N.J., for appellees.
Justice BLACKMUN delivered the opinion of the Court.
==Notes==
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'''Talk:Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury'''
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'''Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury/Opinion of the Court'''
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<div class='courtopinion'>
Appellants in this litigation are 13 major oil companies that do business in the State of New Jersey. They are subject to New Jersey's Corporation Business Tax. They also are subject to the federal windfall profit tax imposed on producers of crude oil. None of appellants' oil production takes place in New Jersey.
Each appellant has sought to deduct its federal windfall profit tax in calculating "entire net income" for purposes of the New Jersey Corporation Business Tax. Under the applicable New Jersey statute, however, a corporation may not deduct a federal tax that is "on or measured by profits or income." The Supreme Court of New Jersey ruled that the windfall profit tax is a tax "on or measured by profits or income." The question before us is whether, as so construed, the New Jersey provision runs afoul of the Commerce Clause or of the Fourteenth Amendment to the United States Constitution.
* A.
In conjunction with the decontrol of oil prices, Congress enacted the Crude Oil Windfall Profit Tax Act of 1980, Pub.L. 96-223, Tit. I, 94 Stat. 230, now codified as 26 U.S.C. §§ 4986-4998 (Act). {{ref|1}} The Act imposes a tax on the "windfall profit" that a crude-oil producer receives from the oil it produces. The "windfall profit" for each barrel of oil is essentially the difference between (a) the deregulated price for the oil (that is, its actual sales price) {{ref|2}} and (b) the regulated price that would have applied had decontrol not taken place. {{ref|3}}
One significant provision of the Act, known as the "net income limitation," places a cap on the amount of a producer's windfall profit that may be taxed each year: "The windfall profit on any barrel of crude oil shall not exceed 90 percent of the net income attributable to such barrel." § 4988(b)(1). The net income attributable to each barrel is the taxable income derived from the oil removed from a particular property for a given year divided by the number of barrels from that property taken into account for that year. § 4988(b)(2). {{ref|4}}
Congress specifically has provided that, for federal income tax purposes, the windfall profit tax is deductible. [[26 U.S.C. § 164]](a)(4) (1982 ed., Supp. V). Although Congress may have assumed that "the windfall profit tax generally would be deductible under State income taxes," see H.R.Rep. No. 96-304, p. 9 (1979), U.S.Code Cong. & Admin.News 1980, p. 595, the Act does not require a State, in imposing a tax, to allow the deduction.
New Jersey's Corporation Business Tax Act, N.J.Stat.Ann. § 54:10A-1 et seq. (West 1986), imposes a tax on a portion of the "entire net income" of a corporation "for the privilege of doing business, employing or owning capital or property, or maintaining an office in this State." § 54:10A-2. For a corporation doing business both within and outside New Jersey, the portion of the "entire net income" to be taxed is determined according to a three-factor formula concerning property, receipts, and payroll. The formula calls for the average of three ratios: in-state property to total property; in-state to total receipts; and in-state to total wages, salaries, and other forms of employee compensation. § 54:10A-6. Cf. Moorman Mfg. Co. v. Bair, [[437 U.S. 267]], 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978).
Under the Corporation Business Tax Act, a corporation's "entire net income" is presumptively the same as its federal taxable income "before net operating loss deduction and special deductions." § 54:10A-4(k). The statute also provides: "Entire net income shall be determined without the exclusion, deduction, or credit of . . . [t]axes paid or accrued to the United States on or measured by profits or income." Ibid. The New Jersey Legislature adopted this "add-back" provision in 1958, long before Congress enacted the windfall profit tax in 1980. 1958 N.J. Laws, ch. 63. See 107 N.J. 307, 313, [[526 A.2d 1029]], 1032 (1987).
In reporting to New Jersey its "entire net income" for 1980 and 1981, each of the appellants did not "add back" the amount of its federal windfall profit tax. In effect, then, each appellant claimed a deduction for that tax from its "entire net income." As a result, appellee, the Director of the New Jersey Division of Taxation, assessed deficiencies. {{ref|5}} Appellants then brought suit against appellee in the Tax Court of New Jersey. {{ref|6}} They contended, first, that the windfall profit tax was not a "tax on or measured by profits or income," within the meaning of the add-back provision, and, second, that a contrary construction of the add-back provision would contravene the Federal Constitution.
The Tax Court rejected these contentions and affirmed the deficiency assessments. 7 N.J. Tax 51 (1984). A consolidated motion for reconsideration was denied. 7 N.J. Tax 275 (1985). The Appellate Division of the Superior Court of New Jersey reversed, holding that the windfall profit tax was not a tax on or measured by profits or income, and, therefore, that it could be deducted from entire net income. 208 N.J.Super. 201, [[505 A.2d 186]] (1986).
The Supreme Court of New Jersey, in its turn, reversed and reinstated the Tax Court's judgment. 107 N.J. 307, [[526 A.2d 1029]] (1987). The five participating justices in a unanimous opinion held that the windfall profit tax is a tax measured by "profits or income" for the purposes of the add-back provision. The court first observed that there obviously was no significant legislative intent on the point, given the fact that the add-back provision predated the windfall profit tax by over 20 years. Id., at 313, [[526 A.2d 1029|526 A.2d, at 1032]]. Lacking evidence of legislative intent, the court went on to reason that the windfall profit tax was a tax on "income" or "profits" as a matter of both ordinary usage and "economic sense." Id., at 324, 331, [[526 A.2d 1029|526 A.2d, at 1038]], 1042. The court noted that the windfall profit tax, by its terms, is limited to "that increment of [an oil producer's] income representing the excess of the uncontrolled price of oil over the controlled price." Id., at 326, [[526 A.2d 1029|526 A.2d, at 1040]]. Also, because of the net income limitation provision, the court concluded that the amount taxed under the windfall profit tax cannot exceed a producer's "net income per barrel." Id., at 328, [[526 A.2d 1029|526 A.2d, at 1041]]. For these reasons, the court found it appropriate to classify the windfall profit tax as measured by income or profits.
Having determined that the add-back provision applied to the windfall profit tax, the court rejected appellants' federal constitutional challenge. "Because the denial of a deduction or the [windfall profit tax] was not based on the interstate nature of [appellants'] businesses and did not burden out-of-state companies, consumers, or transactions while favoring in-state activities, the disallowance did not discriminate against interstate commerce." Id., at 338, [[526 A.2d 1029|526 A.2d, at 1046]].
Appellants now press their federal constitutional claims in this Court. After first seeking the views of the Solicitor General of the United States, [[484 U.S. 941]], 108 S.Ct. 325, 98 L.Ed.2d 353 (1987), we noted probable jurisdiction. [[486 U.S. 1004]], 108 S.Ct. 1726, 100 L.Ed.2d 191 (1988).
In Complete Auto Transit, Inc. v. Brady, [[430 U.S. 274]], 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), this Court sustained a state tax "against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." We repeatedly have applied this principle in subsequent cases, most recently this Term in Goldberg v. Sweet, [[488 U.S. 252]], 109 S.Ct. 582, 102 L.Ed.2d 607 (1989). See also id., at 260, n. 12, 109 S.Ct., at 588, n. 12 (citing other applications of the principle). Appellants do not dispute the soundness of the Complete Auto standard or the propriety of its application here. See Brief for Appellants 21. Rather, they argue that the New Jersey Corporation Business Tax, in denying them a deduction for windfall profit tax payments, fails each of the four prongs of the Complete Auto test. We disagree.
There can be no doubt that New Jersey has "a substantial nexus" with the activities that generate appellants' "entire net income," including oil production occurring entirely outside the State. Each appellant's New Jersey operations are part of an integrated "unitary business," which includes the appellant's crude-oil production. Reply Brief for Appellants 3. Consequently, there exists a "clear and sufficient nexus between [each] appellant's interstate activities and the taxing State." Exxon Corp. v. Wisconsin Dept. of Revenue, [[447 U.S. 207]], 225, 100 S.Ct. 2109, 2121, 65 L.Ed.2d 66 (1980). That New Jersey denies a deduction for windfall profit tax does not change this conclusion. Denying a deduction for a cost associated with the production of oil cannot alter the fact that New Jersey has a substantial connection to the oil-producing activity, by virtue of the determination that this activity is conducted by a unitary business.
Nor has New Jersey imposed upon appellants an unfairly apportioned tax. New Jersey employs an apportionment formula that averages the percentages of in-state property, receipts, and payroll. See Part I-B, supra. We have expressly approved this apportionment formula in the past. See, e.g., Container Corp. of America v. Franchise Tax Board, [[463 U.S. 159]], 170, 103 S.Ct. 2933, 2942, 77 L.Ed.2d 545 (1983). Indeed, this three-factor formula "has become . . . something of a benchmark against which other apportionment formulas are judged." Ibid.
The use of this formula is not invalid as applied to appellants simply because New Jersey denies a deduction for windfall profit tax payments. Appellants contend otherwise, asserting that the windfall profit tax is an exclusively out-of-state expense because it is associated with the production of oil outside New Jersey. They argue that the denial of a deduction for an out-of-state expense causes a State to tax more than its fair share of a unitary business' income. Brief for Appellants 4, 15.
Appellants, however, underestimate the fact that, for apportionment purposes, it is inappropriate to consider the windfall profit tax as an out-of-state expense. Rather, just as each appellant's oil-producing revenue-as part of a unitary business-is not confined to a single State, Exxon Corp., [[447 U.S. 207|447 U.S., at 226]], 100 S.Ct., at 2121; Brief for Appellants 3, so too the costs of producing this revenue are unitary in nature. See Container Corp., [[463 U.S. 159|463 U.S., at 182]], 103 S.Ct., at 2949 (the costs of a unitary business cannot be deemed confined to the locality in which they are incurred). Thus, when a State denies a deduction for a cost of a unitary business, the resulting net figure is still a unitary one, which a State may legitimately decide to apportion according to the standard three-factor apportionment formula. {{ref|7}}
It may be that the application of this formula to appellants results in a somewhat "imperfect" measure of the New Jersey component of their unitary net income. Id., at 183, 103 S.Ct., at 2950. But this fact alone does not render the tax on appellants unlawful. "The Constitution does not 'invalidat[e] an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State.' " Id., at 169-170, 103 S.Ct., at 2942, quoting Moorman Mfg. Co. v. Bair, [[437 U.S. 267|437 U.S., at 272]], 98 S.Ct., at 2344 (emphasis added in Container Corp.). On the contrary, as we have said repeatedly, in order to show unfair apportionment, a taxpayer "must demonstrate that there is no rational relationship between the income attributed to the State and the intrastate values of the enterprise" (internal quotation marks omitted). Container Corp., [[463 U.S. 159|463 U.S., at 180]], 103 S.Ct., at 2948. Given the unitary nature of appellants' oil-producing activities, coupled with New Jersey's use of the benchmark apportionment formula, appellants have not met this burden. {{ref|8}}
Even if a tax is fairly apportioned, it may discriminate against interstate commerce. Westinghouse Electric Corp. v. Tully, [[466 U.S. 388]], 398-399, 104 S.Ct. 1856, 1862-1863, 80 L.Ed.2d 388 (1984). As our precedents show, a tax may violate the Commerce Clause if it is facially discriminatory, has a discriminatory intent, or has the effect of unduly burdening interstate commerce. See generally Smith, State Discriminations against Interstate Commerce, 74 Calif.L.Rev. 1203, 1239 (1986). In Tully, for example, we considered a New York income tax provision that expressly provided a tax credit for shipping products from New York rather than other States. Although the tax was fairly apportioned, the tax credit, "on its face, [was] designed to have discriminatory economic effects" and thus was invalid under the Commerce Clause. [[466 U.S. 388|466 U.S., at 406]]-407, 104 S.Ct., at 1867-1868.
Of course, a tax provision need not be facially discriminatory in the Tully sense in order to violate the Commerce Clause. For example, in Bacchus Imports, Ltd. v. Dias, [[468 U.S. 263]], 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), a Hawaii statute exempted from the State's liquor tax a brandy distilled from the root of a shrub in igenous to Hawaii. Because this was a local product, the tax exemption did not need to be drafted explicitly along state lines in order to demonstrate its discriminatory design.
Bacchus Imports also involved a tax exemption for fruit wine. Although this exemption was general in nature and did not specify an indigenous product, there was evidence that it was enacted to promote the local pineapple-wine industry. Id., at 270-271, 104 S.Ct., at 3054-3055. Thus, because the exemption was motivated by an intent to confer a benefit upon local industry not granted to out-of-state industry, the exemption was invalid.
Finally, American Trucking Assns., Inc. v. Scheiner, [[483 U.S. 266]], 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987), concerned, among other things, an unapportioned Pennsylvania axle tax on the use of Pennsylvania highways by trucks over 26,000 pounds. Although this "flat" tax applied to both in-state and out-of-state trucks, it nonetheless had a discriminatory effect by exerting "an inexorable hydraulic pressure on interstate businesses to ply their trade within the State that enacted the measure rather than 'among the several States,' " id., at 287, 107 S.Ct., at 2842, quoting U.S.C.onst., Art. I, § 8, cl. 3. See also Halliburton Oil Well Co. v. Reily, [[373 U.S. 64]], 72, 83 S.Ct. 1201, 1205, 10 L.Ed.2d 202 (1963) (Louisiana statute had the discriminatory effect of imposing a greater tax on the same goods if they were manufactured outside Louisiana than if they were manufactured within the State, thereby creating an incentive to locate the manufacturing process within the State).
New Jersey's add-back provision, however, does not contravene any of the principles articulated in these cases. It obviously is not facially discriminatory in the Tully sense, as there is no explicit discriminatory design to the tax. Nor does it apply exclusively to a localized industry, as in Bacchus Imports. Instead, the add-back provision applies generally to any federal tax "on or measured by income or profits." Thus, it includes the federal income tax, as well as the windfall profit tax. {{ref|9}} The federal income tax, of course, applies to corporate activity throughout the Nation. Consequently, what could be said of the statute in Bacchus Imports cannot be said of the add-back provision: that it discriminates on the basis of geographic location. See [[468 U.S. 263|468 U.S., at 271]], 104 S.Ct., at 3055.
Appellants, it seems to us, miss this essential point. They argue: "The question here is whether a state may single out for special tax burdens a form of business activity that is conducted only in other jurisdictions." Brief for Appellants 44. But this question is not presented in this litigation. The add-back provision does not single out the windfall profit tax for a deduction denial, and we need not consider here whether a statute that did so would impermissibly discriminate against interstate commerce.
Moreover, appellants concede that no discriminatory motive underlies the add-back provision. Tr. of Oral Arg. 21. Nor does the add-back provision exert a pressure on an interstate business to conduct more of its activities in New Jersey. Denying a deduction for windfall profit tax payments cannot create oil reserves where none exist and therefore cannot be considered an incentive for oil producers to move their oil-producing activities to New Jersey. Given these attributes of the add-back provision, it is difficult to see how it unconstitutionally discriminates against interstate commerce.
Appellants nonetheless claim that the add-back provision, by denying a deduction for windfall profit tax payments, discriminates against oil producers who market their oil in favor of independent retailers who do not produce oil. But whatever disadvantage this deduction denial might impose on integrated oil companies does not constitute discrimination against interstate commerce. Appellants operate both in New Jersey and outside New Jersey. Similarly, nonproducing retailers may operate both in New Jersey and outside the State. Whatever different effect the add-back provision may have on these two categories of companies results solely from differences between the nature of their businesses, not from the location of their activities. See Exxon Corp. v. Governor of Maryland, [[437 U.S. 117]], 125-129, 98 S.Ct. 2207, 2213-2216, 57 L.Ed.2d 91 (1978) (prohibiting oil producers from retailing oil in Maryland does not impermissibly burden interstate commerce because independent interstate retailers still may compete with purely local retailers). In this respect, we agree with the analysis of the New Jersey Supreme Court. 107 N.J., at 337-338, [[526 A.2d 1029|526 A.2d, at 1046]]. {{ref|10}}
For all these reasons, we conclude that the add-back provision does not discriminate against interstate commerce.
There is also no doubt that New Jersey's Corporation Business Tax is "fairly related" to the benefits that New Jersey provides appellants, "which include police and fire protection, the benefit of a trained work force, and 'the advantages of a civilized society.' " Exxon Corp. v. Wisconsin Dept. of Revenue, [[447 U.S. 207|447 U.S., at 228]], 100 S.Ct., at 2123, quoting Japan Line, Ltd. v. County of Los Angeles, [[441 U.S. 434]], 445, 99 S.Ct. 1813, 1819, 60 L.Ed.2d 336 (1979). Appellants acknowledge, as they must, that New Jersey may impose a reasonable tax on a p rtion of their "unitary business" income. Brief for Appellants 3. That New Jersey denies a deduction for windfall profit tax payments "does not alter the fact that the . . . tax paid by [appellants] . . . is related to the advantages provided by the State which aid [each] appellant's business." D.H. Holmes Co. v. McNamara, [[486 U.S. 24]], 32, 108 S.Ct. 1619, 1624, 100 L.Ed.2d 21 (1988).
In sum, then, the Corporation Business Tax imposed on appellants satisfies all four elements of the Complete Auto test, even considering that the add-back provision denies a deduction for windfall profit tax payments.
Appellants also contend that, by denying a deduction for windfall profit tax payments, the add-back provision violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In light of the foregoing discussion, this contention is plainly meritless. First, appellants recognize that the Complete Auto test encompasses due process standards. Brief for Appellants 21; see also 1 J. Hellerstein, State Taxation ¶ 4.8, p. 123 (1983). Accordingly, having determined that the Corporation Business Tax passes all four prongs of the Complete Auto test, we also conclude that it does not violate due process.
Second, although some forms of discriminatory state taxation may violate the Equal Protection Clause even when they pose no Commerce Clause problem, see Metropolitan Life Ins. Co. v. Ward, [[470 U.S. 869]], 881, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985), the add-back provision is not among them. In contrast to Ward, there is no discriminatory classification underlying the add-back provision. Moreover, there is unquestionably a rational basis for the State's refusal to allow a deduction for federal windfall profit tax.
There being no constitutional infirmity to the add-back provision as authoritatively construed by the Supreme Court of New Jersey, the judgment of that court is affirmed.
It is so ordered.
Justice O'CONNOR took no part in the consideration or decision of these cases.
==Notes==
{{note|1|1}} See Joint Committee on Taxation, General Explanation of the Crude Oil Windfall Profit Tax Act of 1980 (Jt.Comm. Print 1981), 96th Cong., 2d Sess., 6 (Jt.Comm. Print 1981); S.Rep. No. 96-394, p. 6 (1979); H.R.Rep. No. 96-304, p. 4 (1979), U.S.Code Cong. & Admin.News 1980, pp. 410, 417, 591.
{{note|2|2}} If the oil is converted into a refined product before it is sold, or if it is removed from the producer's premises before it is sold, the oil is assigned a "constructive sales price," [[26 U.S.C. § 4988]](c)(3), which is "the representative market or [field] price of the oil . . . before conversion or transportation." 26 CFR § 1.613-3(a) (1988).
{{note|3|3}} The Act defines "windfall profit" as "the excess of the removal price of the barrel of crude oil over the sum of-(1) the adjusted base price of such barrel, and (2) the amount of the severance tax adjustment with respect to such barrel provided by section 4996(c)." [[26 U.S.C. § 4988]](a). The "adjusted base price" is derived from the price of the oil in 1979, adjusted for inflation. § 4989. The "severance tax adjustment" is the amount by which any severance tax imposed on the oil exceeds the severance tax that would have been imposed if the oil had been valued at its adjusted base price. § 4996(c).
{{note|4|4}} The annual taxable income for an oil-producing property is determined by reference to § 613(a) of the Internal Revenue Code of 1954, [[26 U.S.C. § 613]](a). See § 4988(b)(3)(A).
{{note|5|5}} At issue in these cases are the 1980 taxes of all 13 appellants and the 1981 taxes of 5 of them. Appellee has deferred action on the 1981 taxes of the other 8 appellants pending the final outcome of this litigation.
{{note|6|6}} The Tax Court consolidated 14 separate complaints raising identical issues. See 7 N.J.Tax. 51, 53 (1984). Thirteen of those fourteen original plaintiffs remain parties to this litigation.
{{note|7|7}} Appellee contends that the windfall profit tax is not "site-specific" because three essential attributes of the tax do not depend on any particular location: the calculation of "removal price" (which may be constructed from market price of the oil in places far from the site at which the oil was removed from the ground); the inflation-adjustment factor; and the net income limitation. See Brief for Appellee 26-33. Whatever the merits of these contentions, we think it is unnecessary to reach them. For fair-apportionment purposes, the relevant question is whether the windfall profit tax is a cost of a unitary business, rather than what the attributes of that cost may be.
{{note|8|8}} We note, too, that if every State denied a deduction for windfall profit tax payments while applying the three-factor formula, the result would not be equivalent to an unapportioned tax, imposed by a single State on an oil company's entire net income. In other words, "no multiple taxation would result" from more than one State's following New Jersey's lead. See Goldberg v. Sweet, [[488 U.S. 252]], 260-265, 109 S.Ct. 582, 589, 102 L.Ed.2d 607 (1989) (discussing a tax to which no apportionment formula was applied).
{{note|9|9}} Appellants also contend that the windfall profit tax is not "comparable" to the federal income tax. Brief for Appellants 35. But we certainly do not find the State's treatment of the windfall profit tax as "on or measured by income or profits" irrational or arbitrary. In significant respects, the windfall profit tax is similar to a tax on income. First, by taxing only the difference between the deregulated and regulated price for the oil, the windfall profit tax was intended to reach only the excess income derived from oil production as a result of decontrol. H.R.Rep. No. 96-304, p. 7 (1979), U.S.C.ode Cong. & Admin.News 1980, p. 594. Second, the net income limitation exists precisely to assure that the tax is imposed only upon above-cost receipts. S.Rep. No. 96-394, p. 29 (1979), U.S.C.ode Cong. & Admin.News 1980, p. 438. Moreover, although the Act itself characterizes the windfall profit tax as an "excise tax," [[26 U.S.C. § 4986]](a), the Internal Revenue Service states that the tax's "structure and computation bear more resemblance to an income tax." IRS Manual Supplement-Windfall Profit Tax Program, 42 RDD-57 (Rev. 3) ¬∂ 2.01 (Aug. 28, 1987), reprinted in 2 CCH Internal Revenue Manual-Audit, p. 7567 (1987). Because the IRS believes that the windfall profit tax resembles an income tax, it surely is not irrational for New Jersey to classify the windfall profit tax, along with the federal income tax, as part of a general provision relating to federal taxes "on or measured by income or profits."
{{note|10|10}} The Solicitor General of the United States has suggested that denying a deduction for windfall profit tax payments might impermissibly give appellants an incentive to shift operations from oil production, which does not occur in New Jersey, to activities that do occur in New Jersey. Brief for United States as Amicus Curiae 18. But even if this deduction denial caused appellants to shift from oil production, there is no evidence that appellants would shift to other New Jersey activities, rather than non-oil-producing activities outside New Jersey. Indeed, precisely because the deduction denial results in a larger New Jersey tax for appellants, it creates some incentive for appellants to move their operations out of that State. Thus, in the absence of discriminatory intent or a statute directed specifically at economic activity that occurs only in a particular location (as in Bacchus Imports ), a deduction denial does not unduly burden interstate commerce just because the deduction denied relates to an economic activity performed outside the taxing State.
</div>
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'''Talk:Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury/Opinion of the Court'''
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'''Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury/Concurrence Scalia'''
{{header
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<div class='courtopinion'>
Justice SCALIA, concurring in the judgment.
I agree with the Court's determination that the New Jersey Corporation Business Tax does not facially discriminate against interstate commerce. See ante, at 76-77. Since I am of the view that this conclusion suffices to decide a claim that a state tax violates the Commerce Clause, see American Trucking Assns., Inc. v. Scheiner, [[483 U.S. 266]], 304, 107 S.Ct. 2829, 2851, 97 L.Ed.2d 226 (1987) (SCALIA, J., dissenting), I would refrain from applying, for Commerce Clause purposes, the remainder of the analysis articulated in Complete Auto Transit, Inc. v. Brady, [[430 U.S. 274]], 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977). To the extent, however, that the Complete Auto analysis pertains to the due process requirements that there be "a 'minimal connection' between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the intrastate values of the enterprise," Mobil Oil Corp. v. Commissioner of Taxes of Vermont, [[445 U.S. 425]], 436-437, 100 S.Ct. 1223, 1231-1232, 63 L.Ed.2d 510 (1980) (citation omitted), I agree with the Court's conclusion that those requirements have been met. See ante, at 79-80. Finally, for the reasons set forth in Part III of the Court's opinion, I agree that the tax in this case does not violate the Equal Protection Clause.
==Notes==
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'''Talk:Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury/Concurrence Scalia'''
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'''490 U.S. 66'''
#REDIRECT [[Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury]]
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'''109 S.Ct. 1617'''
#REDIRECT [[Amerada Hess Corporation v. Director Division Of Taxation New Jersey Department Of The Treasury]]
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'''104 L.Ed.2d 58'''
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'''Federal Savings And Loan Insurance Corporation v. Ticktin'''
{{header2
| title = {{subst:PAGENAME}}
| author = John Paul Stevens
| section = Syllabus
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{{CaseCaption
| court = United States Supreme Court
| volume = 490
| reporter = U.S.
| page = 82
| party1 = FHDERAL SAVINGS AND LOAN INSURANCE CORPORATION, as Receiver For Manning Savings and Loan Association, Petitioner
| party2 = Harold J. TICKTIN et al.
| casename = Federal Savings And Loan Insurance Corporation v. Ticktin
| lowercourt =
| argued = Feb. 27, 1989.
| decided = April 3, 1989
| case no = 87-1865
}}
<div class='courtopinion'>
Syllabus
The Federal Savings and Loan Insurance Corp. (FSLIC), in its capacity as receiver of a state-chartered savings and loan association, brought an action in Federal District Court against former directors of the association for breach of their fiduciary duties under Illinois law. The District Court held that it had jurisdiction pursuant to [[28 U.S.C. § 1345]], which specifies that, except as "otherwise provided" by federal law, district courts have jurisdiction of all civil actions "commenced by" a federal agency "expressly authorized to sue" by Act of Congress. The Court of Appeals reversed, holding that a proviso in [[12 U.S.C. § 1730]](k)(1) withdraws federal jurisdiction in cases in which the FSLIC "is a party in its capacity as . . . receiver . . . of an insured State-chartered institution" if the suit "involves only the rights or obligations of investors, creditors, stockholders, and such institution under State law."
Held: The District Court has jurisdiction over the FSLIC's action. Pp. 1627-1629.
(a) In view of the fact that this case was "commenced by" a federal agency "expressly authorized to sue" under [[12 U.S.C. § 1725]](c), § 1345 supports the District Court's jurisdiction unless § 1730(k)(1) "otherwise provide[s]." Pp. 84-85.
(b) A limitation on § 1345's jurisdictional grant is not "otherwise provided" by § 1730(k)(1), the proviso of which declares that FSLIC receivership cases involving specified parties and state-law rights "shall not be deemed to arise under the laws of the United States." The proviso does not apply to clause (A) of § 1730(k)(1)-which states that the FSLIC "shall be deemed to be an agency of the United States" and thereby confirms that § 1345's party-based jurisdiction is applicable in cases brought by the FSLIC-since that clause does not rely on the presence of a federal question as a jurisdictional prerequisite. Rather, the proviso imposes a limit on the grant of federal-question jurisdiction set forth in clauses (B) and (C) of § 1730(k)(1), which declare respectively that any civil suit in which the FSLIC is a party "shall be deemed to arise under the laws of the United States," and that the FSLIC has the right to remove "any such action" from state to federal court. Pp. 85-87.
[[832 F.2d 1438]] (CA 7 1987), reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
Richard G. Taranto, for petitioner.
James B. Koch, Chicago, Ill., for respondents.
Justice STEVENS delivered the opinion of the Court.
==Notes==
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'''Talk:Federal Savings And Loan Insurance Corporation v. Ticktin'''
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'''Federal Savings And Loan Insurance Corporation v. Ticktin/Opinion of the Court'''
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<div class='courtopinion'>
The Federal Savings and Loan Insurance Corporation (FSLIC), in its capacity as receiver of a state-chartered savings and loan association (Association), brought this action in Federal District Court against former directors of the Association claiming damages for breach of their fiduciary duties under Illinois law. The District Court, relying on Circuit precedent, {{ref|1}} held that it had jurisdiction of the case pursuant to [[28 U.S.C. § 1345]] because the FSLIC is an agency of the United States. App. 38-46. However, observing that there was substantial ground for difference of opinion on this controlling question of law, the court certified the jurisdictional question for interlocutory appeal. Id., at 39-46. The Court of Appeals for the Seventh Circuit reversed because it concluded that a proviso included in 20 Stat. 1042, [[12 U.S.C. § 1730]](k)(1), withdraws federal jurisdiction in cases in which the FSLIC "is a party in its capacity as . . . receiver . . . of an insured State-chartered institution" if the suit "involves only the rights or obligations of investors, creditors, stockholders, and such institution under State law." {{ref|2}} [[832 F.2d 1438]] (1987). Since that ruling, if correct, will require dismissal of a large number of cases concerning the integrity of our financial institutions, we granted certiorari. [[488 U.S. 815]], 109 S.Ct. 52, 102 L.Ed.2d 30 (1988).
We resolve the jurisdictional issue by first considering the meaning of [[28 U.S.C. § 1345]] and then asking whether [[12 U.S.C. § 1730]](k)(1) enlarges or contracts the grant of federal jurisdiction in cases commenced by the FSLIC.
* Federal jurisdiction over cases commenced by federal agencies is conferred by [[28 U.S.C. § 1345]]. That section provides: "Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."
Three limits on this grant of jurisdiction are plain from its text. It applies only to civil litigation "commenced" by the federal party; it requires that the agency be "expressly authorized to sue"; and it is subject to such exceptions as may be "otherwise provided by Act of Congress." In view of the fact that this case was commenced by the FSLIC, and the fact that the FSLIC is expressly authorized to sue and be sued, {{ref|3}} § 1345 supports federal jurisdiction unless another statute otherwise provides. The question, then, is whether [[12 U.S.C. § 1730]](k)(1) is such a statute.
The text of § 1730(k)(1) {{ref|4}} indicates that it is a statute that confirms and enlarges federal-court jurisdiction over cases to which the FSLIC is a party. It does so in two ways.
Prior to the enactment of § 1730(k)(1) in 1966, at least one court had expressed some doubt concerning the FSLIC's status as an agency of the United States for purposes of asserting jurisdiction under § 1345. See Acron Investments, Inc. v. FSLIC, [[363 F.2d 236]] (CA9), cert. denied, [[385 U.S. 970]], 87 S.Ct. 506, 17 L.Ed.2d 434 (1966). Clause (A) of the statute removed that doubt. The manifest purpose of enacting clause (A) was to forec ose the possible argument that § 1345 does not confer federal agency jurisdiction in cases brought by the FSLIC. Thus, clause (A) lends added support to the jurisdictional basis found in § 1345.
In addition, clause (B) enlarges the category of FSLIC litigation over which federal courts have jurisdiction because it covers all civil cases in which the FSLIC "shall be a party," whereas § 1345 applies only to those "commenced" by the FSLIC. Thus, the grant of federal jurisdiction in § 1345 is expanded to include cases in which the FSLIC is named as a defendant as well as those in which it intervenes after proceedings are underway. Clause (C) further enlarges federal jurisdiction in cases involving the FSLIC by giving the agency the right to remove civil proceedings from state court to the appropriate federal district court. Thus, placing the proviso to one side for the moment, it is evident that each of the three clauses of § 1730(k)(1) was intended to buttress the FSLIC's access to a federal forum.
There is no doubt that the proviso imposes a limit on this broad grant of federal jurisdiction. It is equally clear, however, that the proviso does not extend to clause (A) and the agency jurisdiction conferred by § 1345. Clause (B) provides that any civil suit in which the FSLIC is a party "shall be deemed to arise under the laws of the United States." Clause (C), in turn, permits the FSLIC to remove "any such action" to federal court. Accordingly, these jurisdictional grants are predicated on the congressional finding that actions to which the FSLIC is a party "shall be deemed to arise under the laws of the United States." The proviso qualifies this finding by describing a subcategory of cases to which the FSLIC is a party that "shall not be deemed to arise under the laws of the United States." (Emphasis supplied.) Clause (A), however, does not rely on the presence of a federal question as a jurisdictional prerequisite, but rather confirms that the party-based jurisdiction of § 1345 is applicable in cases brought by the FSLIC. As a result, the proviso's partial retraction of federal-question jurisdiction has no effect on clause (A), and, a fortiori, no effect on § 1345. {{ref|5}}
The Court of Appeals suggested that notwithstanding the plain language of the statute, Congress must have intended that the proviso apply to clause (A). [[832 F.2d 1438|832 F.2d, at 1443]]-1444. The court reasoned that because clause (B) applies to all civil cases in which the FSLIC is a party-whether as plaintiff or defendant-and because Congress intended to limit this grant of jurisdiction in the manner set out in the proviso, Congress must have intended that the proviso apply to clause (A) as well. To read the proviso otherwise, the court explained, would allow clause (A) "to grant jurisdiction indirectly in those cases that were deliberately and specifically excluded from the jurisdiction granted by part B." Id., at 1444. The problem with this argument is that in an attempt to give the proviso full effect as applied to each class of cases that might fall within clause (B), the court renders clause (A) entirely redundant. Moreover, reading the proviso so as not to apply to clause (A) does not fail to give the proviso full effect as applied to clause (B). Clause (B) provides federal-question jurisdiction in any case in which the FSLIC is a party and the proviso limits this grant. The fact that clause (A) and § 1345 may provide agency jurisdiction in some of these same cases does not change the fact that the proviso has a real effect it removes one basis of jurisdiction. We thus conclude that the language of § 1730(k)(1) not only plainly provides that the proviso does not ap ly to clause (A), but also is given its fullest effect by so reading the statute.
Because the proviso does not apply to clause (A), § 1730(k)(1) is not an Act of Congress that has "otherwise provided" a limitation on the jurisdictional grant in § 1345. Accordingly, the District Court has federal agency jurisdiction over the FSLIC's action. {{ref|6}}
The judgment of the Court of Appeals is reversed.
It is so ordered.
==Notes==
{{note|1|1}} The District Court relied on the Seventh C rcuit's opinion in FSLIC v. Krueger, [[435 F.2d 633]] (1970). On appeal, the Seventh Circuit overruled the pertinent holding of Krueger. [[832 F.2d 1438]] (1987).
{{note|2|2}} Title [[12 U.S.C. § 1730]](k)(1) provides:
"Notwithstanding any other provision of law, (A) the Corporation shall be deemed to be an agency of the United States within the meaning of section 451 of title 28; (B) any civil action, suit, or proceeding to which the Corporation shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy; and (C) the Corporation may, without bond or security, remove any such action, suit, or proceeding from a State court to the United States district court for the district and division embracing the place where the same is pending by following any procedure for removal now or hereafter in effect: Provided, That any action, suit, or proceeding to which the Corporation is a party in its capacity as conservator, receiver, or other legal custodian of an insured State-chartered institution and which involves only the rights or obligations of investors, creditors, stockholders, and such institution under State law shall not be deemed to arise under the laws of the United States. No attachment or execution shall be issued against the Corporation or its property before final judgment in any action, suit, or proceeding in any court of any State or of the United States or any territory, or any other court." (Emphasis supplied.)
Title [[28 U.S.C. § 451]], in turn, provides in relevant part:
"The term 'agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense."
{{note|3|3}} Title [[12 U.S.C. § 1725]](c) provides that the FSLIC "shall have power . . . [t]o sue and be sued, complain and defend, in any court of competent jurisdiction in the United States. . . ."
{{note|4|4}} See n. 2, supra.
{{note|5|5}} Had Congress intended to limit not only the federal-question jurisdiction of clauses (B) and (C) but also the party-based jurisdiction of § 1345, it could easily have drafted a more general proviso asserting that the defined subclass of cases "shall not fall within the federal jurisdiction."
{{note|6|6}} Because we conclude that the proviso does not modify clause (A) and that jurisdiction was thus properly asserted under § 1345, we need not address the FSLIC's alternative arguments that the proviso is inapplicable because this suit does not involve "only . . . rights or obligations . . . under State law" and does not involve "only the rights or obligations" of parties listed in the proviso.
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{{textinfo
| edition = ''Federal Savings And Loan Insurance Corporation v. Ticktin'', April 3, 1989 .
| source = ''Federal Savings And Loan Insurance Corporation v. Ticktin '' from http://bulk.resource.org/courts.gov/
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'''490 U.S. 82'''
#REDIRECT [[Federal Savings And Loan Insurance Corporation v. Ticktin]]
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'''109 S.Ct. 1626'''
#REDIRECT [[Federal Savings And Loan Insurance Corporation v. Ticktin]]
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'''104 L.Ed.2d 73'''
#REDIRECT [[Federal Savings And Loan Insurance Corporation v. Ticktin]]
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*490 U.S. 82
*109 S.Ct. 1626
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