(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ADOPTIVE COUPLE v. BABY GIRL, A MINOR CHILD
UNDER THE AGE OF FOURTEEN YEARS, ET AL.
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 12–399. Argued April 16, 2013—Decided June 25, 2013
The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences . . . of abusive
child welfare practices that [separated] Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v.
Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened
showing that serious harm to the Indian child is likely to result from
the parent’s “continued custody” of the child, 25 U. S. C. §1912(f);
conditions involuntary termination of parental rights with respect to
an Indian child on a showing that remedial efforts have been made to
prevent the “breakup of the Indian family,” §1912(d); and provides
placement preferences for the adoption of Indian children to members
of the child’s extended family, other members of the Indian child’s
tribe, and other Indian families, §1915(a).
While Birth Mother was pregnant with Biological Father’s child,
their relationship ended and Biological Father (a member of the
Cherokee Nation) agreed to relinquish his parental rights. Birth
Mother put Baby Girl up for adoption through a private adoption
agency and selected Adoptive Couple, non-Indians living in South
Carolina. For the duration of the pregnancy and the first four
months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after
Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological
Father sought custody and stated that he did not consent to the adoption. Following a trial, which took place when Baby Girl was two 2 ADOPTIVE COUPLE v. BABY GIRL
Syllabus
years old, the South Carolina Family Court denied Adoptive Couple’s
adoption petition and awarded custody to Biological Father. At the
age of 27 months, Baby Girl was handed over to Biological Father,
whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding
related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his
parental rights; and that had his rights been terminated, §1915(a)’s
adoption-placement preferences would have applied.
Held:
1. Assuming for the sake of argument that Biological Father is a
“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the
termination of his parental rights. Pp. 6–14.
(a) Section 1912(f) conditions the involuntary termination of parental rights on a heightened showing regarding the merits of the
parent’s “continued custody of the child.” The adjective “continued”
plainly refers to a pre-existing state under ordinary dictionary definitions. The phrase “continued custody” thus refers to custody that a
parent already has (or at least had at some point in the past). As a
result, §1912(f) does not apply where the Indian parent never had
custody of the Indian child. This reading comports with the statutory
text, which demonstrates that the ICWA was designed primarily to
counteract the unwarranted removal of Indian children from Indian
families. See §1901(4). But the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. Nonbinding
guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate
that the BIA envisioned that §1912(f)’s standard would apply only to
termination of a custodial parent’s rights. Under this reading, Biological Father should not have been able to invoke §1912(f) in this
case because he had never had legal or physical custody of Baby Girl
as of the time of the adoption proceedings. Pp. 7–11.
(b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active
efforts have been made to provide remedial services . . . designed to
prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to
“[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s
Third New International Dictionary 273 (1961). But when an Indian
parent abandons an Indian child prior to birth and that child has
never been in the Indian parent’s legal or physical custody, there is Cite as: 570 U. S. ____ (2013) 3
Syllabus
no “relationship” to be “discontinu[ed]” and no “effective entity” to be
“end[ed]” by terminating the Indian parent’s rights. In such a situation, the “breakup of the Indian family” has long since occurred, and
§1912(d) is inapplicable. This interpretation is consistent with the
explicit congressional purpose of setting certain “standards for the
removal of Indian children from their families,” §1902, and with BIA
Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which
both condition the outcome of proceedings on the merits of an Indian
child’s “continued custody” with his parent, strongly suggests that
the phrase “breakup of the Indian family” should be read in harmony
with the “continued custody” requirement. Pp. 11–14.
2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt
the child. No party other than Adoptive Couple sought to adopt Baby
Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek to
adopt Baby Girl; instead, he argued that his parental rights should
not be terminated in the first place. And custody was never sought
by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16.
398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion.
SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE ALITO delivered the opinion of the Court.
This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.
Because Baby Girl is classified in this way, the South
Carolina Supreme Court held that certain provisions of
the federal Indian Child Welfare Act of 1978 required her
to be taken, at the age of 27 months, from the only parents
she had ever known and handed over to her biological
father, who had attempted to relinquish his parental
rights and who had no prior contact with the child. The
provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court’s ruling, we hold
that 25 U. S. C. §1912(f )—which bars involuntary termination of a parent’s rights in the absence of a heightened
showing that serious harm to the Indian child is likely to
result from the parent’s “continued custody” of the child—
does not apply when, as here, the relevant parent never
had custody of the child. We further hold that §1912(d)—
which conditions involuntary termination of parental 2 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
rights with respect to an Indian child on a showing that
remedial efforts have been made to prevent the “breakup
of the Indian family”—is inapplicable when, as here, the
parent abandoned the Indian child before birth and never
had custody of the child. Finally, we clarify that §1915(a),
which provides placement preferences for the adoption of
Indian children, does not bar a non-Indian family like
Adoptive Couple from adopting an Indian child when no
other eligible candidates have sought to adopt the child.
We accordingly reverse the South Carolina Supreme Court’s
judgment and remand for further proceedings.
I
“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 In-
dian 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.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Congress found
that “an alarmingly high percentage of Indian families
[were being] broken up by the removal, often unwarranted,
of their children from them by nontribal public and
private agencies.” §1901(4). This “wholesale removal of
Indian children from their homes” prompted Congress to
enact the ICWA, which establishes federal standards that
govern state-court child custody proceedings involving
Indian children. Id., at 32, 36 (internal quotation marks
omitted); see also §1902 (declaring that the ICWA establishes “minimum Federal standards for the removal of
Indian children from their families”).1
——————
1
It is undisputed that Baby Girl is an “Indian child” as defined by the
ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
Three provisions of the ICWA are especially relevant to
this case. First, “[a]ny party seeking” an involuntary
termination of parental rights to an Indian child under
state law must demonstrate that “active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.”
§1912(d). Second, a state court may not involuntarily
terminate parental rights to an Indian child “in the absence of a determination, supported by evidence beyond a
reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” §1912(f ).
Third, with respect to adoptive placements for 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.” §1915(a).
II
In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the
Cherokee Nation) became engaged in December 2008.
One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father
——————
Indian tribe,” §1903(4)(b). See Brief for Respondent Birth Father 1, 51,
n. 22; Brief for Respondent Cherokee Nation 1; Brief for Petitioners 44
(“Baby Girl’s eligibility for membership in the Cherokee Nation depends solely upon a lineal blood relationship with a tribal ancestor”).
It is also undisputed that the present case concerns a “child custody
proceeding,” which the ICWA defines to include proceedings that
involve “termination of parental rights” and “adoptive placement,”
§1903(1). 4 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
asked Birth Mother to move up the date of the wedding.
He also refused to provide any financial support until after
the two had married. The couple’s relationship deteriorated,
and Birth Mother broke off the engagement in May 2009.
In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded
via text message that he relinquished his rights.
Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted
the Cherokee Nation to determine whether Biological
Father was formally enrolled. The inquiry letter misspelled Biological Father’s first name and incorrectly
stated his birthday, and the Cherokee Nation responded
that, based on the information provided, it could not verify
Biological Father’s membership in the tribal records.
Working through a private adoption agency, Birth
Mother selected Adoptive Couple, non-Indians living in
South Carolina, to adopt Baby Girl. Adoptive Couple
supported Birth Mother both emotionally and financially
throughout her pregnancy. Adoptive Couple was present
at Baby Girl’s birth in Oklahoma on September 15, 2009,
and Adoptive Father even cut the umbilical cord. The
next morning, Birth Mother signed forms relinquishing
her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl.
After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby
Girl.
It is undisputed that, for the duration of the pregnancy
and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother
or Baby Girl, even though he had the ability to do so. Indeed, Biological Father “made no meaningful attempts Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
to assume his responsibility of parenthood” during this
period. App. to Pet. for Cert. 122a (Sealed; internal quotation marks omitted).
Approximately four months after Baby Girl’s birth,
Adoptive Couple served Biological Father with notice of
the pending adoption. (This was the first notification
that they had provided to Biological Father regarding
the adoption proceeding.) Biological Father signed papers
stating that he accepted service and that he was “not
contesting the adoption.” App. 37. But Biological Father
later testified that, at the time he signed the papers, he
thought that he was relinquishing his rights to Birth
Mother, not to Adoptive Couple.
Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of the
adoption proceedings.2 In the adoption proceedings, Biological Father sought custody and stated that he did not
consent to Baby Girl’s adoption. Moreover, Biological
Father took a paternity test, which verified that he was
Baby Girl’s biological father.
A trial took place in the South Carolina Family Court in
September 2011, by which time Baby Girl was two years
old. 398 S. C. 625, 634–635, 731 S. E. 2d 550, 555–556
(2012). The Family Court concluded that Adoptive Couple
had not carried the heightened burden under §1912(f ) of
proving that Baby Girl would suffer serious emotional or
physical damage if Biological Father had custody. See id.,
at 648–651, 731 S. E. 2d, at 562–564. The Family Court
therefore denied Adoptive Couple’s petition for adoption
and awarded custody to Biological Father. Id., at 629,
636, 731 S. E. 2d, at 552, 556. On December 31, 2011, at
——————
2
Around the same time, the Cherokee Nation identified Biological
Father as a registered member and concluded that Baby Girl was an
“Indian child” as defined in the ICWA. The Cherokee Nation intervened in the litigation approximately three months later. 6 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met.3
The South Carolina Supreme Court affirmed the Family
Court’s denial of the adoption and the award of custody to
Biological Father. Id., at 629, 731 S. E. 2d, at 552. The
State Supreme Court first determined that the ICWA
applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731
S. E. 2d, at 556, 560, n. 18. It also concluded that Biological Father fell within the ICWA’s definition of a “‘parent.’”
Id., at 644, 731 S. E. 2d, at 560. The court then held that
two separate provisions of the ICWA barred the termination of Biological Father’s parental rights. First, the court
held that Adoptive Couple had not shown that “active
efforts ha[d] been made to provide remedial services and
rehabilitative programs designed to prevent the breakup
of the Indian family.” §1912(d); see also id., at 647–648,
731 S. E. 2d, at 562. Second, the court concluded that
Adoptive Couple had not shown that Biological Father’s
“custody of Baby Girl would result in serious emotional or
physical harm to her beyond a reasonable doubt.” Id., at
648–649, 731 S. E. 2d, at 562–563 (citing §1912(f )). Finally,
the court stated that, even if it had decided to terminate
Biological Father’s parental rights, §1915(a)’s adoption-
placement preferences would have applied. Id., at 655–657,
731 S. E. 2d, at 566–567. We granted certiorari. 568 U. S.
___ (2013).
III
It is undisputed that, had Baby Girl not been 3/256
Cherokee, Biological Father would have had no right to
——————
3
According to the guardian ad litem, Biological Father allowed Baby
Girl to speak with Adoptive Couple by telephone the following day, but
then cut off all communication between them. Moreover, according to
Birth Mother, Biological Father has made no attempt to contact her
since the time he took custody of Baby Girl. Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
object to her adoption under South Carolina law. See Tr.
of Oral Arg. 49; 398 S. C., at 644, n. 19, 731 S. E. 2d, at
560, n. 19 (“Under state law, [Biological] Father’s con-
sent to the adoption would not have been required”). The
South Carolina Supreme Court held, however, that Biological Father is a “parent” under the ICWA and that two
statutory provisions—namely, §1912(f ) and §1912(d)—bar
the termination of his parental rights. In this Court,
Adoptive Couple contends that Biological Father is not a
“parent” and that §1912(f ) and §1912(d) are inapplicable.
We need not—and therefore do not—decide whether Biological Father is a “parent.” See §1903(9) (defining “parent”).4
Rather, assuming for the sake of argument that he
is a “parent,” we hold that neither §1912(f ) nor §1912(d)
bars the termination of his parental rights.
A
Section 1912(f ) addresses the involuntary termination
of parental rights with respect to an Indian child. Specifically, §1912(f ) provides that “[n]o termination of parental
rights may be ordered in such proceeding in the absence of
a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by
the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” (Emphasis
added.) The South Carolina Supreme Court held that
Adoptive Couple failed to satisfy §1912(f ) because they did
not make a heightened showing that Biological Father’s
“prospective legal and physical custody” would likely result
in serious damage to the child. 398 S. C., at 651, 731 S. E.
2d, at 564 (emphasis added). That holding was error.
——————
4
If Biological Father is not a “parent” under the ICWA, then §1912(f )
and §1912(d)—which relate to proceedings involving possible termination of “parental” rights—are inapplicable. Because we conclude that
these provisions are inapplicable for other reasons, however, we need
not decide whether Biological Father is a “parent.” 8 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
Section 1912(f ) conditions the involuntary termination
of parental rights on a showing regarding the merits of
“continued custody of the child by the parent.” (Emphasis
added.) The adjective “continued” plainly refers to a preexisting state. As JUSTICE SOTOMAYOR concedes, post, at
11 (dissenting opinion) (hereinafter the dissent), “continued” means “[c]arried on or kept up without cessation”
or “[e]xtended in space without interruption or breach of
conne[ct]ion.” Compact Edition of the Oxford English
Dictionary 909 (1981 reprint of 1971 ed.) (Compact OED);
see also American Heritage Dictionary 288 (1981) (defining “continue” in the following manner: “1. To go on with
a particular action or in a particular condition; persist. . . .
3. To remain in the same state, capacity, or place”); Webster’s Third New International Dictionary 493 (1961)
(Webster’s) (defining “continued” as “stretching out in time
or space esp. without interruption”); Aguilar v. FDIC, 63
F. 3d 1059, 1062 (CA11 1995) (per curiam) (suggesting
that the phrase “continue an action” means “go on with . . .
an action” that is “preexisting”). The term “continued”
also can mean “resumed after interruption.” Webster’s
493; see American Heritage Dictionary 288. The phrase
“continued custody” therefore refers to custody that a
parent already has (or at least had at some point in the
past). As a result, §1912(f ) does not apply in cases where
the Indian parent never had custody of the Indian child.5
Biological Father’s contrary reading of §1912(f ) is nonsensical. Pointing to the provision’s requirement that
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5
With a torrent of words, the dissent attempts to obscure the fact
that its interpretation simply cannot be squared with the statutory
text. A biological father’s “continued custody” of a child cannot be
assessed if the father never had custody at all, and the use of a different phrase—“termination of parental rights”—cannot change that. In
addition, the dissent’s reliance on subsection headings, post, at 9,
overlooks the fact that those headings were not actually enacted by
Congress. See 92 Stat. 3071–3072. Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
“[n]o termination of parental rights may be ordered . . . in
the absence of a determination” relating to “the continued
custody of the child by the parent,” Biological Father
contends that if a determination relating to “continued
custody” is inapposite in cases where there is no “custody,”
the statutory text prohibits termination. See Brief for
Respondent Birth Father 39. But it would be absurd to
think that Congress enacted a provision that permits
termination of a custodial parent’s rights, while simultaneously prohibiting termination of a noncustodial parent’s
rights. If the statute draws any distinction between
custodial and noncustodial parents, that distinction
surely does not provide greater protection for noncustodial
parents.6
Our reading of §1912(f ) comports with the statutory text
demonstrating that the primary mischief the ICWA was
designed to counteract was the unwarranted removal of
Indian children from Indian families due to the cultural
insensitivity and biases of social workers and state courts.
The statutory text expressly highlights the primary problem that the statute was intended to solve: “an alarmingly
high percentage of Indian families [were being] broken up
by the removal, often unwarranted, of their children from
them by nontribal public and private agencies.” §1901(4)
(emphasis added); see also §1902 (explaining that the
ICWA establishes “minimum Federal standards for the
removal of Indian children from their families” (emphasis
added)); Holyfield, 490 U. S., at 32–34. And if the legislative history of the ICWA is thought to be relevant, it fur-
——————
6
The dissent criticizes us for allegedly concluding that a biological
father qualifies for “substantive” statutory protections “only when [he]
has physical or state-recognized legal custody.” Post, at 2, 6–7. But the
dissent undercuts its own point when it states that “numerous” ICWA
provisions not at issue here afford “meaningful” protections to biological
fathers regardless of whether they ever had custody. Post, at 4–7, and
nn. 1, 2. 10 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
ther underscores that the Act was primarily intended to
stem the unwarranted removal of Indian children from
intact Indian families. See, e.g., H. R. Rep. No. 95–1386,
p. 8 (1978) (explaining that, as relevant here, “[t]he purpose of [the ICWA] is to protect the best interests of 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” (emphasis added)); id., at 9 (decrying the
“wholesale separation of Indian children” from their Indian
families); id., at 22 (discussing “the removal” of Indian
children from their parents pursuant to §§1912(e) and (f )).
In sum, when, as here, the adoption of an Indian child is
voluntarily and lawfully initiated by a non-Indian parent
with sole custodial rights, the ICWA’s primary goal of
preventing the unwarranted removal of Indian children
and the dissolution of Indian families is not implicated.
The dissent fails to dispute that nonbinding guidelines
issued by the Bureau of Indian Affairs (BIA) shortly after
the ICWA’s enactment demonstrate that the BIA envisioned that §1912(f )’s standard would apply only to termination of a custodial parent’s rights. Specifically, the BIA
stated that, under §1912(f ), “[a] child may not be removed
simply because there is someone else willing to raise the
child who is likely to do a better job”; instead, “[i]t must
be shown that . . . it is dangerous for the child to remain
with his or her present custodians.” Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67593 (1979) (emphasis added) (hereinafter Guidelines).
Indeed, the Guidelines recognized that §1912(f ) applies
only when there is pre-existing custody to evaluate. See
ibid. (“[T]he issue on which qualified expert testimony is
required is the question of whether or not serious damage
to the child is likely to occur if the child is not removed”).
Under our reading of §1912(f ), Biological Father should Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
not have been able to invoke §1912(f ) in this case, because
he had never had legal or physical custody of Baby Girl as
of the time of the adoption proceedings. As an initial
matter, it is undisputed that Biological Father never had
physical custody of Baby Girl. And as a matter of both
South Carolina and Oklahoma law, Biological Father
never had legal custody either. See S. C. Code Ann. §63–
17–20(B) (2010) (“Unless the court orders otherwise, the
custody of an illegitimate child is solely in the natural
mother unless the mother has relinquished her rights to
the child”); Okla. Stat., Tit. 10, §7800 (West Cum. Supp.
2013) (“Except as otherwise provided by law, the mother
of a child born out of wedlock has custody of the child
until determined otherwise by a court of competent
jurisdiction”).7
In sum, the South Carolina Supreme Court erred in
finding that §1912(f ) barred termination of Biological
Father’s parental rights.
B
Section 1912(d) provides that “[a]ny party” seeking to
terminate parental rights to an Indian child under state
law “shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
——————
7
In an effort to rebut our supposed conclusion that “Congress could
not possibly have intended” to require legal termination of Biological
Father’s rights with respect to Baby Girl, the dissent asserts that a
minority of States afford (or used to afford) protection to similarly
situated biological fathers. See post, at 17–18, and n. 12 (emphasis
added). This is entirely beside the point, because we merely conclude
that, based on the statute’s text and structure, Congress did not extend
the heightened protections of §1912(d) and §1912(f ) to all biological
fathers. The fact that state laws may provide certain protections to
biological fathers who have abandoned their children and who have
never had custody of their children in no way undermines our analysis
of these two federal statutory provisions. 12 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
family and that these efforts have proved unsuccessful.”
(Emphasis added.) The South Carolina Supreme Court
found that Biological Father’s parental rights could not
be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial
services in accordance with §1912(d). 398 S. C., at 647–
648, 731 S. E. 2d, at 562. We disagree.
Consistent with the statutory text, we hold that
§1912(d) applies only in cases where an Indian family’s
“breakup” would be precipitated by the termination of the
parent’s rights. The term “breakup” refers in this context
to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an
effective entity,” Webster’s 273 (defining “breakup” as “a
disruption or dissolution into component parts: an ending
as an effective entity”). See also Compact OED 1076
(defining “break-up” as, inter alia, a “disruption, separation into parts, disintegration”). But when an Indian
parent abandons an Indian child prior to birth and that
child has never been in the Indian parent’s legal or
physical custody, there is no “relationship” that would be
“discontinu[ed]”—and no “effective entity” that would
be “end[ed]”—by the termination of the Indian par-
ent’s rights. In such a situation, the “breakup of the
Indian family” has long since occurred, and §1912(d) is
inapplicable.
Our interpretation of §1912(d) is, like our interpretation
of §1912(f ), consistent with the explicit congressional
purpose of providing certain “standards for the removal of
Indian children from their families.” §1902 (emphasis
added); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32–
34. In addition, the BIA’s Guidelines confirm that remedial services under §1912(d) are intended “to alleviate the
need to remove the Indian child from his or her parents or
Indian custodians,” not to facilitate a transfer of the child
to an Indian parent. See 44 Fed. Reg., at 67592 (emphasis Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
added).
Our interpretation of §1912(d) is also confirmed by the
provision’s placement next to §1912(e) and §1912(f ), both
of which condition the outcome of proceedings on the
merits of an Indian child’s “continued custody” with his
parent. That these three provisions appear adjacent to
each other strongly suggests that the phrase “breakup of
the Indian family” should be read in harmony with the
“continued custody” requirement. See United Sav. Assn.
of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484
U. S. 365, 371 (1988) (explaining that statutory construction “is a holistic endeavor” and that “[a] provision that
may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme”). None of these three
provisions creates parental rights for unwed fathers where
no such rights would otherwise exist. Instead, Indian
parents who are already part of an “Indian family” are
provided with access to “remedial services and rehabilitative programs” under §1912(d) so that their “custody”
might be “continued” in a way that avoids foster-care
placement under §1912(e) or termination of parental
rights under §1912(f ). In other words, the provision of
“remedial services and rehabilitative programs” under
§1912(d) supports the “continued custody” that is protected
by §1912(e) and §1912(f ).8
——————
8
The dissent claims that our reasoning “necessarily extends to all
Indian parents who have never had custody of their children,” even if
those parents have visitation rights. Post, at 2–3, 13–14. As an initial
matter, the dissent’s concern about the effect of our decision on individuals with visitation rights will be implicated, at most, in a relatively
small class of cases. For example, our interpretation of §1912(d) would
implicate the dissent’s concern only in the case of a parent who abandoned his or her child prior to birth and never had physical or legal
custody, but did have some sort of visitation rights. Moreover, in cases
where this concern is implicated, such parents might receive “comparable” protections under state law. See post, at 15. And in any event, it is
the dissent’s interpretation that would have far-reaching consequences: 14 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
Section 1912(d) is a sensible requirement when applied
to state social workers who might otherwise be too quick
to remove Indian children from their Indian families. It
would, however, be unusual to apply §1912(d) in the context of an Indian parent who abandoned a child prior to
birth and who never had custody of the child. The decision
below illustrates this point. The South Carolina Supreme
Court held that §1912(d) mandated measures such as
“attempting to stimulate [Biological] Father’s desire to be
a parent.” 398 S. C., at 647, 731 S. E. 2d, at 562. But if
prospective adoptive parents were required to engage in
the bizarre undertaking of “stimulat[ing]” a biological
father’s “desire to be a parent,” it would surely dissuade
some of them from seeking to adopt Indian children.9
And
this would, in turn, unnecessarily place vulnerable Indian
children at a unique disadvantage in finding a permanent
and loving home, even in cases where neither an Indian
parent nor the relevant tribe objects to the adoption.10
In sum, the South Carolina Supreme Court erred in
finding that §1912(d) barred termination of Biological
Father’s parental rights.
IV
In the decision below, the South Carolina Supreme
——————
Under the dissent’s reading, any biological parent—even a sperm
donor—would enjoy the heightened protections of §1912(d) and
§1912(f ), even if he abandoned the mother and the child immediately
after conception. Post, at 14, n. 8.
9
Biological Father and the Solicitor General argue that a tribe
or state agency could provide the requisite remedial services under
§1912(d). Brief for Respondent Birth Father 43; Brief for United States
as Amicus Curiae 22. But what if they don’t? And if they don’t, would
the adoptive parents have to undertake the task?
10The dissent repeatedly mischaracterizes our opinion. As our detailed discussion of the terms of the ICWA makes clear, our decision
is not based on a “[p]olicy disagreement with Congress’ judgment.” Post,
at 2; see also post, at 8, 21. Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
Court suggested that if it had terminated Biological Father’s rights, then §1915(a)’s preferences for the adoptive
placement of an Indian child would have been applicable.
398 S. C., at 655–657, 731 S. E. 2d, at 566–567. In so
doing, however, the court failed to recognize a critical lim-
itation on the scope of §1915(a).
Section 1915(a) provides that “[i]n 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.” Contrary to the South Carolina
Supreme Court’s suggestion, §1915(a)’s preferences are
inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there
simply is no “preference” to apply if no alternative party
that is eligible to be preferred under §1915(a) has come
forward.
In this case, Adoptive Couple was the only party that
sought to adopt Baby Girl in the Family Court or the
South Carolina Supreme Court. See Brief for Petitioners
19, 55; Brief for Respondent Birth Father 48; Reply Brief
for Petitioners 13. Biological Father is not covered by
§1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be
terminated in the first place.11 Moreover, Baby Girl’s
——————
11Section 1915(c) also provides that, in the case of an adoptive placement under §1915(a), “if the Indian child’s tribe shall establish a
different order of preference by resolution, the agency or court effecting
the placement shall follow such order so long as the placement is the
least restrictive setting appropriate to the particular needs of the child,
as provided in [§1915(b)].” Although we need not decide the issue
here, it may be the case that an Indian child’s tribe could alter §1915’s
preferences in a way that includes a biological father whose rights were
terminated, but who has now reformed. See §1915(c). If a tribe were to
take such an approach, however, the court would still have the power to
determine whether “good cause” exists to disregard the tribe’s order of 16 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
paternal grandparents never sought custody of Baby Girl.
See Brief for Petitioners 55; Reply Brief for Petitioners 13;
398 S. C., at 699, 731 S. E. 2d, at 590 (Kittredge, J., dissenting) (noting that the “paternal grandparents are not
parties to this action”). Nor did other members of the
Cherokee Nation or “other Indian families” seek to adopt
Baby Girl, even though the Cherokee Nation had notice
of—and intervened in—the adoption proceedings. See
Brief for Respondent Cherokee Nation 21–22; Reply Brief
for Petitioners 13–14.12
* * *
The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes,
but under the State Supreme Court’s reading, the Act
would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—
was an Indian. As the State Supreme Court read
§§1912(d) and (f ), a biological Indian father could abandon
his child in utero and refuse any support for the birth
mother—perhaps contributing to the mother’s decision to
put the child up for adoption—and then could play his
ICWA trump card at the eleventh hour to override the
mother’s decision and the child’s best interests. If this
were possible, many prospective adoptive parents would
surely pause before adopting any child who might possibly
qualify as an Indian under the ICWA. Such an interpreta-
——————
preference. See §§1915(a), (c); In re Adoption of T. R. M., 525 N. E. 2d
298, 313 (Ind. 1988).
12To be sure, an employee of the Cherokee Nation testified that the
Cherokee Nation certifies families to be adoptive parents and that
there are approximately 100 such families “that are ready to take
children that want to be adopted.” Record 446. However, this testimony was only a general statement regarding the Cherokee Nation’s
practices; it did not demonstrate that a specific Indian family was
willing to adopt Baby Girl, let alone that such a family formally sought
such adoption in the South Carolina courts. See Reply Brief for Petitioners 13–14; see also Brief for Respondent Cherokee Nation 21–22. Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
tion would raise equal protection concerns, but the plain
text of §§1912(f ) and (d) makes clear that neither provision
applies in the present context. Nor do §1915(a)’s rebuttable adoption preferences apply when no alternative party
has formally sought to adopt the child. We therefore
reverse the judgment of the South Carolina Supreme
Court and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately
to explain why constitutional avoidance compels this outcome. Each party in this case has put forward a plausible
interpretation of the relevant sections of the Indian Child
Welfare Act (ICWA). However, the interpretations offered
by respondent Birth Father and the United States raise
significant constitutional problems as applied to this
case. Because the Court’s decision avoids those problems,
I concur in its interpretation.
I
This case arises out of a contested state-court adoption
proceeding. Adoption proceedings are adjudicated in state
family courts across the country every day, and “domestic
relations” is “an area that has long been regarded as a
virtually exclusive province of the States.” Sosna v. Iowa,
419 U. S. 393, 404 (1975). Indeed, “[t]he whole subject of
the domestic relations of husband and wife, parent and
child, belongs to the laws of the States and not to the laws
of the United States.” In re Burrus, 136 U. S. 586, 593–
594 (1890). Nevertheless, when Adoptive Couple filed a
petition in South Carolina Family Court to finalize their
adoption of Baby Girl, Birth Father, who had relinquished 2 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
his parental rights via a text message to Birth Mother,
claimed a federal right under the ICWA to block the adoption and to obtain custody.
The ICWA establishes “federal standards that govern
state-court child custody proceedings involving Indian
children.” Ante, at 2. The ICWA defines “Indian child” as
“any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” 25 U. S. C. §1903(4).
As relevant, the ICWA defines “child custody proceeding,”
§1903(1), to include “adoptive placement,” which means
“the permanent placement of an Indian child for adoption,
including any action resulting in a final decree of adoption,” §1903(1)(iv), and “termination of parental rights,”
which means “any action resulting in the termination of
the parent-child relationship,” §1903(1)(ii).
The ICWA restricts a state court’s ability to terminate
the parental rights of an Indian parent in two relevant
ways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights “in the absence of a
determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.” Section 1912(d) prohibits a
state court from terminating parental rights until the
court is satisfied “that active efforts have been made to
provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.” A third
provision creates specific placement preferences for the
adoption of Indian children, which favor placement with
Indians over other adoptive families. §1915(a). Operating
together, these requirements often lead to different outcomes than would result under state law. That is precisely Cite as: 570 U. S. ____ (2013) 3
THOMAS, J., concurring
what happened here. See ante, at 6 (“It is undisputed
that, had Baby Girl not been 3/256 Cherokee, Biological
Father would have had no right to object to her adoption
under South Carolina law”).
The ICWA recognizes States’ inherent “jurisdiction over
Indian child custody proceedings,” §1901(5), but asserts
that federal regulation is necessary because States “have
often failed to recognize the essential tribal relations of
Indian people and the cultural and social standards preailing in Indian communities and families,” ibid. However,
Congress may regulate areas of traditional state concern
only if the Constitution grants it such power. Admt. 10
(“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). The
threshold question, then, is whether the Constitution
grants Congress power to override state custody law
whenever an Indian is involved.
II
The ICWA asserts that the Indian Commerce Clause,
Art. I, §8, cl. 3, and “other constitutional authority” provides Congress with “plenary power over Indian affairs.”
§1901(1). The reference to “other constitutional authority”
is not illuminating, and I am aware of no other enumerated power that could even arguably support Congress’
intrusion into this area of traditional state authority. See
Fletcher, The Supreme Court and Federal Indian Policy,
85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal
constitutional law, the Indian Commerce Clause grants
Congress the only explicit constitutional authority to deal
with Indian tribes”); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev.
201, 210 (2007) (hereinafter Natelson) (evaluating, and
rejecting, other potential sources of authority supporting
congressional power over Indians). The assertion of ple-4 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
nary authority must, therefore, stand or fall on Congress’
power under the Indian Commerce Clause. Although this
Court has said that the “central function of the Indian
Commerce Clause is to provide Congress with plenary
power to legislate in the field of Indian affairs,” Cotton
Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989),
neither the text nor the original understanding of the
Clause supports Congress’ claim to such “plenary” power.
A
The Indian Commerce Clause gives Congress authority
“[t]o regulate Commerce . . . with the Indian tribes.”
Art. I, §8, cl. 3 (emphasis added). “At the time the original
Constitution was ratified, ‘commerce’ consisted of selling,
buying, and bartering, as well as transporting for these
purposes.” United States v. Lopez, 514 U. S. 549, 585
(1995) (THOMAS, J., concurring). See also 1 S. Johnson, A
Dictionary of the English Language 361 (4th rev. ed. 1773)
(reprint 1978) (defining commerce as “Intercourse; exchange of one thing for another; interchange of any thing;
trade; traffick”). “[W]hen Federalists and Anti-Federalists
discussed the Commerce Clause during the ratification
period, they often used trade (in its selling/bartering
sense) and commerce interchangeably.” Lopez, supra, at
586 (THOMAS, J., concurring). The term “commerce” did
not include economic activity such as “manufacturing and
agriculture,” ibid., let alone noneconomic activity such as
adoption of children.
Furthermore, the term “commerce with Indian tribes”
was invariably used during the time of the founding to
mean “‘trade with Indians.’” See, e.g., Natelson, 215–216,
and n. 97 (citing 18th-century sources); Report of Committee on Indian Affairs (Feb 20, 1787), in 32 Journals of the
Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed.
1936) (hereinafter J. Cont’l Cong.) (using the phrase
“commerce with the Indians” to mean trade with the Cite as: 570 U. S. ____ (2013) 5
THOMAS, J., concurring
Indians). And regulation of Indian commerce generally
referred to legal structures governing “the conduct of
the merchants engaged in the Indian trade, the nature of the
goods they sold, the prices charged, and similar matters.”
Natelson 216, and n. 99.
The Indian Commerce Clause contains an additional
textual limitation relevant to this case: Congress is given
the power to regulate Commerce “with the Indian tribes.”
The Clause does not give Congress the power to regulate
commerce with all Indian persons any more than the
Foreign Commerce Clause gives Congress the power to
regulate commerce with all foreign nationals traveling
within the United States. A straightforward reading of
the text, thus, confirms that Congress may only regulate
commercial interactions—“commerce”—taking place with
established Indian communities—“tribes.” That power is
far from “plenary.”
B
Congress’ assertion of “plenary power” over Indian
affairs is also inconsistent with the history of the Indian
Commerce Clause. At the time of the founding, the Clause
was understood to reserve to the States general police
powers with respect to Indians who were citizens of the
several States. The Clause instead conferred on Congress
the much narrower power to regulate trade with Indian
tribes—that is, Indians who had not been incorporated
into the body-politic of any State.
1
Before the Revolution, most Colonies adopted their own
regulations governing Indian trade. See Natelson 219,
and n. 121 (citing colonial laws). Such regulations were
necessary because colonial traders all too often abused
their Indian trading partners, through fraud, exorbitant
prices, extortion, and physical invasion of Indian territory, 6 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
among other things. See 1 F. Prucha, The Great Father
18–20 (1984) (hereinafter Prucha); Natelson 220, and
n. 122. These abuses sometimes provoked violent Indian
retaliation. See Prucha 20. To mitigate these conflicts,
most Colonies extensively regulated traders engaged in
commerce with Indian tribes. See e.g., Ordinance to Regulate Indian Affairs, Statutes of South Carolina (Aug. 31,
1751), in 16 Early American Indian Documents: Treaties
and Laws, 1607–1789, pp. 331–334 (A. Vaughan and
D. Rosen eds. 1998).1 Over time, commercial regulation at
the colonial level proved largely ineffective, in part because “[t]here was no uniformity among the colonies, no
two sets of like regulations.” Prucha 21.
Recognizing the need for uniform regulation of trade
with the Indians, Benjamin Franklin proposed his own
“articles of confederation” to the Continental Congress on
July 21, 1775, which reflected his view that central control
over Indian affairs should predominate over local control.
2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s
proposal was not enacted, but in November 1775, Congress empowered a committee to draft regulations for
the Indian trade. 3 id., at 364, 366. On July 12, 1776, the
committee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin’s
proposals. 5 id., at 545, 546, n. 1. The draft prohibited
States from waging offensive war against the Indians
without congressional authorization and granted Congress
——————
1
South Carolina, for example, required traders to be licensed, to be of
good moral character, and to post a bond. Ordinance to Regulate
Indian Affairs, in 16 Early American Indian Documents, at 331–334. A
potential applicant’s name was posted publicly before issuing the
license, so anyone with objections had an opportunity to raise them.
Id., at 332. Restrictions were placed on employing agents, id., at 333–
334, and names of potential agents had to be disclosed. Id., at 333.
Traders who violated these rules were subject to substantial penalties.
Id., at 331, 334. Cite as: 570 U. S. ____ (2013) 7
THOMAS, J., concurring
the exclusive power to acquire land from the Indians outside state boundaries, once those boundaries had been established. Id., at 549. This version also gave Congress
“the sole and exclusive Right and Power of . . . Regulating
the Trade, and managing all Affairs with the Indians.” Id.
at 550.
On August 20, 1776, the Committee of the Whole presented to Congress a revised draft, which provided Congress with “the sole and exclusive right and power of . . .
regulating the trade, and managing all affairs with the
Indians.” Id., at 672, 681–682. Some delegates feared
that the Articles gave Congress excessive power to interfere with States’ jurisdiction over affairs with Indians
residing within state boundaries. After further deliberation, the final result was a clause that included a broad
grant of congressional authority with two significant
exceptions: “The United States in Congress assembled
shall also have the sole and exclusive right and power of
. . . regulating the trade and managing all affairs with the
Indians, not members of any of the States, provided that
the legislative right of any State within its own limits be
not infringed or violated.” Articles of Confederation, Art.
IX, cl. 4. As a result, Congress retained exclusive jurisdiction over Indian affairs outside the borders of the States;
the States retained exclusive jurisdiction over relations
with Member-Indians;2
and Congress and the States “exercise[d] concurrent jurisdiction over transactions with
tribal Indians within state boundaries, but congressional
decisions would have to be in compliance with local law.”
Natelson 230. The drafting of the Articles of Confedera-
——————
2
Although Indians were generally considered “members” of a State if
they paid taxes or were citizens, see Natelson 230, the precise definition of the term was “not yet settled” at the time of the founding
and was “a question of frequent perplexity and contention in the federal councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J.
Madison). 8 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
tion reveals the delegates’ concern with protecting the
power of the States to regulate Indian persons who were
politically incorporated into the States. This concern
for state power reemerged during the drafting of the
Constitution.
2
The drafting history of the Constitutional Convention
also supports a limited construction of the Indian Commerce Clause. On July 24, 1787, the convention elected
a drafting committee—the Committee of Detail—and
charged it to “report a Constitution conformable to the Resolutions passed by the Convention.” 2 Records of the
Federal Convention of 1787, p.106 (M. Farrand rev. 1966)
(J. Madison). During the Committee’s deliberations, John
Rutledge, the chairman, suggested incorporating an Indian affairs power into the Constitution. Id., at 137, n. 6,
143. The first draft reported back to the convention,
however, provided Congress with authority “[t]o regulate
commerce with foreign nations, and among the several
States,” id., at 181 (Madison) (Aug. 6, 1787), but did not
include any specific Indian affairs clause. On August 18,
James Madison proposed that the Federal Government be
granted several additional powers, including the power
“[t]o regulate affairs with the Indians as well within as
without the limits of the U. States.” Id., at 324 (J. Madison) (emphasis added). On August 22, Rutledge delivered
the Committee of Detail’s second report, which modified
Madison’s proposed clause. The Committee proposed to
add to Congress’ power “[t]o regulate commerce with
foreign nations, and among the several States” the words,
“and with Indians, within the Limits of any State, not
subject to the laws thereof.” Id., at 366–367 (Journal).
The Committee’s version, which echoed the Articles of
Confederation, was far narrower than Madison’s proposal.
On August 31, the revised draft was submitted to a Com-Cite as: 570 U. S. ____ (2013) 9
THOMAS, J., concurring
mittee of Eleven for further action. Id., at 473 (Journal),
481 (J. Madison). That Committee recommended adding
to the Commerce Clause the phrase, “and with the Indian
tribes,” id., at 493, which the Convention ultimately
adopted.
It is, thus, clear that the Framers of the Constitution
were alert to the difference between the power to regulate
trade with the Indians and the power to regulate all Indian affairs. By limiting Congress’ power to the former, the
Framers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation. See Prakash, Against Tribal Fungibility, 89
Cornell L. Rev. 1069, 1090 (2004).
During the ratification debates, opposition to the Indian
Commerce Clause was nearly nonexistent. See Natelson
248 (noting that Robert Yates, a New York Anti-Federalist
was “almost the only writer who objected to any part [of]
of the Commerce Clause—a clear indication that its scope
was understood to be fairly narrow” (footnote omitted)).
Given the Anti-Federalists’ vehement opposition to the
Constitution’s other grants of power to the Federal Government, this silence is revealing. The ratifiers almost
certainly understood the Clause to confer a relatively
modest power on Congress—namely, the power to regulate
trade with Indian tribes living beyond state borders. And
this feature of the Constitution was welcomed by Federalists and Anti-Federalists alike due to the considerable
interest in expanding trade with such Indian tribes. See,
e.g., The Federalist No. 42, at 265 (J. Madison) (praising
the Constitution for removing the obstacles that had
existed under the Articles of Confederation to federal
control over “trade with Indians” (emphasis added)); 3 J.
Elliot, The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 580 (2d ed. 1863)
(Adam Stephens, at the Virginia ratifying convention,
June 23, 1788, describing the Indian tribes residing near 10 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
the Mississippi and “the variety of articles which might be
obtained to advantage by trading with these people”); The
Federalist No. 24, at 158 (A. Hamilton) (arguing that
frontier garrisons would “be keys to the trade with the
Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24,
1788, in 15 The Documentary History of the Ratification of
the Constitution 462, 465 (J. Kaminski & G. Saladino eds.
2012) (conceding that there must be a standing army for
some purposes, including “trade with Indians”). There is
little evidence that the ratifiers of the Constitution understood the Indian Commerce Clause to confer anything
resembling plenary power over Indian affairs. See Natelson 247–250.
III
In light of the original understanding of the Indian
Commerce Clause, the constitutional problems that would
be created by application of the ICWA here are evident.
First, the statute deals with “child custody proceedings,”
§1903(1), not “commerce.” It was enacted in response to
concerns that “an alarmingly high percentage of Indian
families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public
and private agencies.” §1901(4). The perceived problem
was that many Indian children were “placed in non-Indian
foster and adoptive homes and institutions.” Ibid. This
problem, however, had nothing to do with commerce.
Second, the portions of the ICWA at issue here do not
regulate Indian tribes as tribes. Sections 1912(d) and (f),
and §1915(a) apply to all child custody proceedings involving an Indian child, regardless of whether an Indian tribe
is involved. This case thus does not directly implicate
Congress’ power to “legislate in respect to Indian tribes.”
United States v. Lara, 541 U. S. 193, 200 (2004) (emphasis
added). Baby Girl was never domiciled on an Indian
Reservation, and the Cherokee Nation had no jurisdiction Cite as: 570 U. S. ____ (2013) 11
THOMAS, J., concurring
over her. Cf. Mississippi Band of Choctaw Indians v.
Holyfield, 490 U. S. 30, 53–54 (1989) (holding that the
Indian Tribe had exclusive jurisdiction over child custody
proceedings, even though the children were born off the
reservation, because the children were “domiciled” on the
reservation for purposes of the ICWA). Although Birth
Father is a registered member of The Cherokee Nation, he
did not live on a reservation either. He was, thus, subject
to the laws of the State in which he resided (Oklahoma)
and of the State where his daughter resided during the
custody proceedings (South Carolina). Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of his
status as an Indian.3
Because adoption proceedings like this one involve
neither “commerce” nor “Indian tribes,” there is simply no
constitutional basis for Congress’ assertion of authority
over such proceedings. Also, the notion that Congress can
direct state courts to apply different rules of evidence and
procedure merely because a person of Indian descent is
involved raises absurd possibilities. Such plenary power
would allow Congress to dictate specific rules of criminal
procedure for state-court prosecutions against Indian
defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes
involve Indians. But the Constitution does not grant
Congress power to override state law whenever that law
——————
3
Petitioners and the guardian ad litem contend that applying the
ICWA to child custody proceedings on the basis of race implicates equal
protection concerns. See Brief for Petitioners 45 (arguing that the
statute would be unconstitutional “if unwed fathers with no preexisting
substantive parental rights receive a statutory preference based solely
on the Indian child’s race”); Brief for Respondent Guardian Ad Litem
48–49 (same). I need not address this argument because I am satisfied
that Congress lacks authority to regulate the child custody proceedings
in this case. 12 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
happens to be applied to Indians. Accordingly, application
of the ICWA to these child custody proceedings would be
unconstitutional.
* * *
Because the Court’s plausible interpretation of the
relevant sections of the ICWA avoids these constitutional
problems, I concur. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE BREYER, concurring.
I join the Court’s opinion with three observations. First,
the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with
his child in the first few months of her life. That category
of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range
of others in between. Most of those who fall within that
category seem to fall outside the scope of the language of
25 U. S. C. §§1912(d) and (f ). Thus, while I agree that the
better reading of the statute is, as the majority concludes,
to exclude most of those fathers, ante, at 8, 12, I also understand the risk that, from a policy perspective, the
Court’s interpretation could prove to exclude too many.
See post, at 13, 22–23 (SOTOMAYOR, J., dissenting).
Second, we should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid “all of his child
support obligations.” See post, at 13. Neither does it involve
special circumstances such as a father who was deceived
about the existence of the child or a father who was prevented from supporting his child. See post, at 13 n. 8. The
Court need not, and in my view does not, now decide
whether or how §§1912(d) and (f ) apply where those cir-2 ADOPTIVE COUPLE v. BABY GIRL
BREYER, J., concurring
cumstances are present.
Third, other statutory provisions not now before us may
nonetheless prove relevant in cases of this kind. Section
1915(a) grants an adoptive “preference” to “(1) a member
of the child’s extended family; (2) other members of the
Indian child’s tribe; or (3) other Indian families . . . . in the
absence of good cause to the contrary.” Further, §1915(c)
allows the “Indian child’s tribe” to “establish a different
order of preference by resolution.” Could these provisions
allow an absentee father to re-enter the special statutory
order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but
do not here try to answer, the question. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE SCALIA, dissenting.
I join JUSTICE SOTOMAYOR’s dissent except as to one
detail. I reject the conclusion that the Court draws from
the words “continued custody” in 25 U. S. C §1912(f) not
because “literalness may strangle meaning,” see post, at
11, but because there is no reason that “continued” must
refer to custody in the past rather than custody in the
future. I read the provision as requiring the court to
satisfy itself (beyond a reasonable doubt) not merely that
initial or temporary custody is not “likely to result in
serious emotional or physical damage to the child,” but
that continued custody is not likely to do so. See Webster’s New International Dictionary 577 (2d ed. 1950)
(defining “continued” as “[p]rotracted in time or space, esp.
without interruption; constant”). For the reasons set forth
in JUSTICE SOTOMAYOR’s dissent, that connotation is much
more in accord with the rest of the statute.
While I am at it, I will add one thought. The Court’s
opinion, it seems to me, needlessly demeans the rights of
parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a
child into the world to raise that child. We do not inquire
whether leaving a child with his parents is “in the best
interest of the child.” It sometimes is not; he would be 2 ADOPTIVE COUPLE v. BABY GIRL
SCALIA, J., dissenting
better off raised by someone else. But parents have their
rights, no less than children do. This father wants to raise
his daughter, and the statute amply protects his right to
do so. There is no reason in law or policy to dilute that
protection. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, and with whom JUSTICE SCALIA
joins in part, dissenting.
A casual reader of the Court’s opinion could be forgiven
for thinking this an easy case, one in which the text of the
applicable statute clearly points the way to the only sen-
sible result. In truth, however, the path from the text of
the Indian Child Welfare Act of 1978 (ICWA) to the result the
Court reaches is anything but clear, and its result any
thing but right.
The reader’s first clue that the majority’s supposedly
straightforward reasoning is flawed is that not all Mem
bers who adopt its interpretation believe it is compelled by
the text of the statute, see ante, at 1 (THOMAS, J., concur
ring); nor are they all willing to accept the consequences
it will necessarily have beyond the specific factual sce-
nario confronted here, see ante, at 1 (BREYER, J., concurring).
The second clue is that the majority begins its analysis by
plucking out of context a single phrase from the last clause
of the last subsection of the relevant provision, and then
builds its entire argument upon it. That is not how we
ordinarily read statutes. The third clue is that the major-
ity openly professes its aversion to Congress’ explicitly
stated purpose in enacting the statute. The majority ex- 2 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
presses concern that reading the Act to mean what it
says will make it more difficult to place Indian children in
adoptive homes, see ante, at 14, 16, but the Congress that
enacted the statute announced its intent to stop “an
alarmingly high percentage of Indian families [from being]
broken up” by, among other things, a trend of “plac[ing]
[Indian children] in non-Indian . . . adoptive homes.” 25
U. S. C. §1901(4). Policy disagreement with Congress’ judg-
ment is not a valid reason for this Court to distort the pro
visions of the Act. Unlike the majority, I cannot adopt
a reading of ICWA that is contrary to both its text and its
stated purpose. I respectfully dissent.
I
Beginning its reading with the last clause of §1912(f ),
the majority concludes that a single phrase appearing
there—“continued custody”—means that the entirety of
the subsection is inapplicable to any parent, however
committed, who has not previously had physical or legal
custody of his child. Working back to front, the majority
then concludes that §1912(d), tainted by its association
with §1912(f ), is also inapplicable; in the majority’s view,
a family bond that does not take custodial form is not a
family bond worth preserving from “breakup.” Because
there are apparently no limits on the contaminating power
of this single phrase, the majority does not stop there.
Under its reading, §1903(9), which makes biological fa
thers “parent[s]” under this federal statute (and where,
again, the phrase “continued custody” does not appear),
has substantive force only when a birth father has physi
cal or state-recognized legal custody of his daughter.
When it excludes noncustodial biological fathers from
the Act’s substantive protections, this textually backward
reading misapprehends ICWA’s structure and scope.
Moreover, notwithstanding the majority’s focus on the per-
ceived parental shortcomings of Birth Father, its reaCite as: 570 U. S. ____ (2013) 3
SOTOMAYOR, J., dissenting
soning necessarily extends to all Indian parents who have
never had custody of their children, no matter how fully
those parents have embraced the financial and emotional
responsibilities of parenting. The majority thereby trans
forms a statute that was intended to provide uniform
federal standards for child custody proceedings involving
Indian children and their biological parents into an illogi
cal piecemeal scheme.
A
Better to start at the beginning and consider the opera
tion of the statute as a whole. Cf. ante, at 13 (“[S]tatutory
construction ‘is a holistic endeavor[,]’ and . . . ‘[a] provision
that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme’” (quoting United
Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates,
Ltd., 484 U. S. 365, 371 (1988))).
ICWA commences with express findings. Congress rec
ognized that “there is no resource that is more vital to
the continued existence and integrity of Indian tribes than
their children,” 25 U. S. C. §1901(3), and it found that this
resource was threatened. State authorities insufficiently
sensitive to “the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian
communities and families” were breaking up Indian fami
lies and moving Indian children to non-Indian homes and
institutions. See §§1901(4)–(5). As §1901(4) makes clear,
and as this Court recognized in Mississippi Band of
Choctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989),
adoptive placements of Indian children with non-Indian
families contributed significantly to the overall problem. See
§1901(4) (finding that “an alarmingly high percentage of
[Indian] children are placed in non-Indian . . . adoptive
homes”).
Consistent with these findings, Congress declared its
purpose “to protect the best interests of Indian children 4 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal
standards” applicable to child custody proceedings involv
ing Indian children. §1902. Section 1903 then goes on to
establish the reach of these protections through its defi-
nitional provisions. For present purposes, two of these
definitions are crucial to understanding the statute’s full
scope.
First, ICWA defines the term “parent” broadly to mean
“any biological parent . . . of an Indian child or any In-
dian person who has lawfully adopted an Indian child.”
§1903(9). It is undisputed that Baby Girl is an “Indian
child” within the meaning of the statute, see §1903(4);
ante, at 2, n. 1, and Birth Father consequently qualifies
as a “parent” under the Act. The statutory definition of
parent “does not include the unwed father where paternity
has not been acknowledged or established,” §1903(9), but
Birth Father’s biological paternity has never been ques
tioned by any party and was confirmed by a DNA test
during the state court proceedings, App. to Pet. for Cert.
109a (Sealed).
Petitioners and Baby Girl’s guardian ad litem devote
many pages of briefing to arguing that the term “parent”
should be defined with reference to the law of the State in
which an ICWA child custody proceeding takes place. See
Brief for Petitioners 19–29; Brief for Respondent Guardian
Ad Litem 32–41. These arguments, however, are incon
sistent with our recognition in Holyfield that Congress
intended the critical terms of the statute to have uniform
federal definitions. See 490 U. S., at 44–45. It is therefore
unsurprising, although far from unimportant, that the
majority assumes for the purposes of its analysis that
Birth Father is an ICWA “parent.” See ante, at 7.
Second, the Act’s comprehensive definition of “child
custody proceeding” includes not only “‘adoptive place
ment[s],’” “‘preadoptive placement[s],’” and “‘foster care Cite as: 570 U. S. ____ (2013) 5
SOTOMAYOR, J., dissenting
placement[s],’” but also “‘termination of parental rights’”
proceedings. §1903(1). This last category encompasses
“any action resulting in the termination of the parentchild relationship,” §1903(1)(ii) (emphasis added). So far,
then, it is clear that Birth Father has a federally recog
nized status as Baby Girl’s “parent” and that his “parent
child relationship” with her is subject to the protections of
the Act.
These protections are numerous. Had Birth Father
petitioned to remove this proceeding to tribal court, for
example, the state court would have been obligated to
transfer it absent an objection from Birth Mother or good
cause to the contrary. See §1911(b). Any voluntary con
sent Birth Father gave to Baby Girl’s adoption would have
been invalid unless written and executed before a judge
and would have been revocable up to the time a final
decree of adoption was entered.1
See §§1913(a), (c). And
§1912, the center of the dispute here, sets forth procedural
and substantive standards applicable in “involuntary
proceeding[s] in a State court,” including foster care
placements of Indian children and termination of paren
tal rights proceedings. §1912(a). I consider §1912’s provi
sions in order.
Section 1912(a) requires that any party seeking “termi
nation of parental rights t[o] an Indian child” provide
notice to both the child’s “parent or Indian custodian”
and the child’s tribe “of the pending proceedings and of
their right of intervention.” Section 1912(b) mandates
that counsel be provided for an indigent “parent or In-
dian custodian” in any “termination proceeding.” Section
——————
1
For this reason, the South Carolina Supreme Court held that Birth
Father did not give valid consent to Baby Girl’s adoption when, four
months after her birth, he signed papers stating that he accepted
service and was not contesting the adoption. See 398 S. C. 625, 645–
646, 731 S. E. 2d 550, 561 (2012). See also ante, at 5. Petitioners do
not challenge this aspect of the South Carolina court’s holding. 6 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
1912(c) also gives all “part[ies]” to a termination proceed
ing—which, thanks to §§1912(a) and (b), will always in
clude a biological father if he desires to be present—the
right to inspect all material “reports or other documents
filed with the court.” By providing notice, counsel, and
access to relevant documents, the statute ensures a biolog
ical father’s meaningful participation in an adoption pro
ceeding where the termination of his parental rights is at
issue.
These protections are consonant with the principle,
recognized in our cases, that the biological bond between
parent and child is meaningful. “[A] natural parent’s
desire for and right to the companionship, care, custody,
and management of his or her children,” we have ex
plained, “is an interest far more precious than any prop-
erty right.” Santosky v. Kramer, 455 U. S. 745, 758–759
(1982) (internal quotation marks omitted). See also infra,
at 19-20. Although the Constitution does not compel the
protection of a biological father’s parent-child relationship
until he has taken steps to cultivate it, this Court has
nevertheless recognized that “the biological connection . . .
offers the natural father an opportunity that no other
male possesses to develop a relationship with his off
spring.” Lehr v. Robertson, 463 U. S. 248, 262 (1983).
Federal recognition of a parent-child relationship between
a birth father and his child is consistent with ICWA’s
purpose of providing greater protection for the familial
bonds between Indian parents and their children than
state law may afford.
The majority does not and cannot reasonably dispute
that ICWA grants biological fathers, as “parent[s],” the
right to be present at a termination of parental rights
proceeding and to have their views and claims heard
there.2
But the majority gives with one hand and takes
——————
2
Petitioners concede that, assuming Birth Father is a “parent” under Cite as: 570 U. S. ____ (2013) 7
SOTOMAYOR, J., dissenting
away with the other. Having assumed a uniform federal
definition of “parent” that confers certain procedural
rights, the majority then illogically concludes that ICWA’s
substantive protections are available only to a subset of
“parent[s]”: those who have previously had physical or
state-recognized legal custody of his or her child. The
statute does not support this departure.
Section 1912(d) provides that
“Any party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian child
under State law shall satisfy the court that active
efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts
have proved unsuccessful.” (Emphasis added.)
In other words, subsection (d) requires that an attempt
be made to cure familial deficiencies before the drastic
measures of foster care placement or termination of paren
tal rights can be taken.
The majority would hold that the use of the phrase
“breakup of the Indian family” in this subsection means
that it does not apply where a birth father has not previ
ously had custody of his child. Ante, at 12. But there is
nothing about this capacious phrase that licenses such a
narrowing construction. As the majority notes, “breakup”
means “‘[t]he discontinuance of a relationship.’” Ante, at
12 (quoting American Heritage Dictionary 235 (3d ed.
1992)). So far, all of §1912’s provisions expressly apply in
actions aimed at terminating the “parent-child relation
ship” that exists between a birth father and his child, and
they extend to it meaningful protections. As a logical
matter, that relationship is fully capable of being pre
——————
ICWA, the notice and counsel provisions of 25 U. S. C. §§1912(a) and (b)
apply to him. See Tr. of Oral Arg. 13. 8 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
served via remedial services and rehabilitation programs.
See infra, at 15–17. Nothing in the text of subsection (d)
indicates that this blood relationship should be excluded
from the category of familial “relationships” that the pro-
vision aims to save from “discontinuance.”
The majority, reaching the contrary conclusion, asserts
baldly that “when an Indian parent abandons an Indian
child prior to birth and that child has never been in the
Indian parent’s legal or physical custody, there is no ‘rela
tionship’ that would be ‘discontinu[ed]’ . . . by the termina
tion of the Indian parent’s rights.” Ante, at 12. Says who?
Certainly not the statute. Section 1903 recognizes Birth
Father as Baby Girl’s “parent,” and, in conjunction with
ICWA’s other provisions, it further establishes that their
“parent-child relationship” is protected under federal law.
In the face of these broad definitions, the majority has no
warrant to substitute its own policy views for Congress’ by
saying that “no ‘relationship’” exists between Birth Father
and Baby Girl simply because, based on the hotly con-
tested facts of this case, it views their family bond as in-
sufficiently substantial to deserve protection.3 Ibid.
The majority states that its “interpretation of §1912(d)
is . . . confirmed by the provision’s placement next to
——————
3
The majority’s discussion of §1912(d) repeatedly references Birth
Father’s purported “abandon[ment]” of Baby Girl, ante, at 12, 13, n. 8,
14, and it contends that its holding with regard to this provision is
limited to such circumstances, see ante, at 13, n. 8; see also ante, at 1
(BREYER, J., concurring). While I would welcome any limitations on the
majority’s holding given that it is contrary to the language and purpose
of the statute, the majority never explains either the textual basis or
the precise scope of its “abandon[ment]” limitation. I expect that the
majority’s inexact use of the term “abandon[ment]” will sow confusion,
because it is a commonly used term of art in state family law that does
not have a uniform meaning from State to State. See generally 1 J.
Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussing
various state-law standards for establishing parental abandonment of
a child). Cite as: 570 U. S. ____ (2013) 9
SOTOMAYOR, J., dissenting
§1912(e) and §1912(f ),” both of which use the phrase “‘con
tinued custody.’” Ante, at 13. This is the only aspect of
the majority’s argument regarding §1912(d) that is based
on ICWA’s actual text rather than layers of assertion su-
perimposed on the text; but the conclusion the majority
draws from the juxtaposition of these provisions is exactly
backward.
Section 1912(f ) is paired with §1912(e), and as the ma
jority notes, both come on the heels of the requirement of
rehabilitative efforts just reviewed. The language of the
two provisions is nearly identical; subsection (e) is headed
“Foster care placement orders,” and subsection (f ), the
relevant provision here, is headed “Parental rights termi
nation orders.” Subsection (f ) reads in its entirety,
“No termination of parental rights may be ordered
in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, in
cluding testimony of qualified expert witnesses, that
the continued custody of the child by the parent or In
dian custodian is likely to result in serious emotional
or physical damage to the child.” §1912(f ).4
The immediate inference to be drawn from the statute’s
structure is that subsections (e) and (f ) work in tandem
with the rehabilitative efforts required by (d). Under
subsection (d), state authorities must attempt to provide
“remedial services and rehabilitative programs” aimed at
avoiding foster care placement or termination of parental
rights; (e) and (f ), in turn, bar state authorities from order
——————
4
The full text of subsection (e) is as follows:
“No foster care placement may be ordered in such proceeding in
the absence of a determination, supported by clear and convincing evi-
dence, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.”
§1912(e). 10 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
ing foster care or terminating parental rights until these
curative efforts have failed and it is established that the
child will suffer “serious emotional or physical damage” if
his or her familial situation is not altered. Nothing in
subsections (a) through (d) suggests a limitation on the
types of parental relationships that are protected by any of
the provisions of §1912, and there is nothing in the struc
ture of §1912 that would lead a reader to expect subsection
(e) or (f ) to introduce any such qualification. Indeed, both
subsections, in their opening lines, refer back to the prior
provisions of §1912 with the phrase “in such proceeding.”
This language indicates, quite logically, that in actions
where subsections (a), (b), (c), and (d) apply, (e) and (f )
apply too.5
All this, and still the most telling textual evidence is yet
to come: The text of the subsection begins by announcing,
“[n]o termination of parental rights may be ordered” un
less the specified evidentiary showing is made. To repeat,
a “termination of parental rights” includes “any action
resulting in the termination of the parent-child relation
ship,” 25 U. S. C. §1903(1)(ii) (emphasis added), includ-
ing the relationship Birth Father, as an ICWA “parent,”
has with Baby Girl. The majority’s reading disregards
the Act’s sweeping definition of “termination of parental
rights,” which is not limited to terminations of custodial
relationships.
The entire foundation of the majority’s argument that
——————
5
For these reasons, I reject the argument advanced by the United
States that subsection (d) applies in the circumstances of this case but
subsection (f ) does not. See Brief for United States as Amicus Curiae
24–26. The United States’ position is contrary to the interrelated
nature of §§1912(d), (e), and (f ). Under the reading that the United
States proposes, in a case such as this one the curative provision would
stand alone; ICWA would provide no evidentiary or substantive stand
ards by which to measure whether foster care placement or termination
of parental rights could be ordered in the event that rehabilitative
efforts did not succeed. Such a scheme would be oddly incomplete. Cite as: 570 U. S. ____ (2013) 11
SOTOMAYOR, J., dissenting
subsection (f ) does not apply is the lonely phrase “contin
ued custody.” It simply cannot bear the interpretive
weight the majority would place on it.
Because a primary dictionary definition of “continued” is
“‘carried on or kept up without cessation,’” ante, at 8
(brackets omitted), the majority concludes that §1912(f )
“does not apply in cases where the Indian parent never
had custody of the Indian child,” ante, at 8. Emphasizing
that Birth Father never had physical custody or, under
state law, legal custody of Baby Girl, the majority finds
the statute inapplicable here. Ante, at 10–11. But “liter
alness may strangle meaning.” Utah Junk Co. v. Porter,
328 U. S. 39, 44 (1946). See also Robinson v. Shell Oil Co.,
519 U. S. 337, 341–345 (1997) (noting that a term that
may “[a]t first blush” seem unambiguous can prove other
wise when examined in the context of the statute as a
whole).6
In light of the structure of §1912, which indicates
that subsection (f ) is applicable to the same actions to
which subsections (a) through (d) are applicable; the use of
the phrase “such proceeding[s]” at the start of subsection
(f ) to reinforce this structural inference; and finally, the
provision’s explicit statement that it applies to “termina
tion of parental rights” proceedings, the necessary conclu
sion is that the word “custody” does not strictly denote a
state-recognized custodial relationship. If one refers back
to the Act’s definitional section, this conclusion is not
surprising. Section 1903(1) includes “any action resulting
in the termination of the parent-child relationship” within
the meaning of “child custody proceeding,” thereby belying
any congressional intent to give the term “custody” a
narrow and exclusive definition throughout the statute.
——————
6
The majority’s interpretation is unpersuasive even if one focuses
exclusively on the phrase “continued custody” because, as JUSTICE
SCALIA explains, ante, at 1 (dissenting opinion), nothing about the
adjective “continued” mandates the retrospective, rather than prospec
tive, application of §1912(f )’s standard. 12 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
In keeping with §1903(1) and the structure and lan
guage of §1912 overall, the phrase “continued custody” is
most sensibly read to refer generally to the continuation of
the parent-child relationship that an ICWA “parent” has
with his or her child. A court applying §1912(f ) where the
parent does not have pre-existing custody should, as Birth
Father argues, determine whether the party seeking ter
mination of parental rights has established that the con
tinuation of the parent-child relationship will result in
“serious emotional or physical damage to the child.”7
The majority is willing to assume, for the sake of argu
ment, that Birth Father is a “parent” within the meaning
of ICWA. But the majority fails to account for all that
follows from that assumption. The majority repeatedly
passes over the term “termination of parental rights” that,
as defined by §1903, clearly encompasses an action aimed
at severing Birth Father’s “parent-child relationship” with
Baby Girl. The majority chooses instead to focus on
phrases not statutorily defined that it then uses to exclude
Birth Father from the benefits of his parental status.
When one must disregard a statute’s use of terms that
have been explicitly defined by Congress, that should be a
signal that one is distorting, rather than faithfully read
ing, the law in question.
B
The majority also does not acknowledge the full impli
——————
7
The majority overlooks Birth Father’s principal arguments when it
dismisses his reading of §1912(f ) as “nonsensical.” Ante, at 8. He does
argue that if one accepts petitioners’ view that it is impossible to make
a determination of likely harm when a parent lacks custody, then the
consequence would be that “ ‘[n]o termination of parental rights may be
ordered.’ ” Brief for Respondent Birth Father 39 (quoting §1912(f )).
But Birth Father’s primary arguments assume that it is indeed possible
to make a determination of likely harm in the circumstances of this
case, and that parental rights can be terminated if §1912(f ) is met. See
id., at 40–42. Cite as: 570 U. S. ____ (2013) 13
SOTOMAYOR, J., dissenting
cations of its assumption that there are some ICWA
“parent[s]” to whom §§1912(d) and (f ) do not apply. Its dis
cussion focuses on Birth Father’s particular actions, but
nothing in the majority’s reasoning limits its manufac
tured class of semiprotected ICWA parents to biological
fathers who failed to support their child’s mother during
pregnancy. Its logic would apply equally to noncustodial
fathers who have actively participated in their child’s
upbringing.
Consider an Indian father who, though he has never had
custody of his biological child, visits her and pays all of his
child support obligations.8
Suppose that, due to deficien
——————
8
The majority attempts to minimize the consequences of its holding
by asserting that the parent-child relationships of noncustodial fathers
with visitation rights will be at stake in an ICWA proceeding in only
“a relatively small class of cases.” Ante, at 13, n. 8. But it offers no
support for this assertion, beyond speculating that there will not be
many fathers affected by its interpretation of §1912(d) because it is
qualified by an “abandon[ment]” limitation. Ibid. Tellingly, the majority has nothing to say about §1912(f ), despite the fact that its interpre
tation of that provision is not limited in a similar way. In any event,
this example by no means exhausts the class of semiprotected ICWA
parents that the majority’s opinion creates. It also includes, for exam
ple, biological fathers who have not yet established a relationship with
their child because the child’s mother never informed them of the
pregnancy, see, e.g., In re Termination of Parental Rights of Biological
Parents of Baby Boy W., 1999 OK 74, 988 P. 2d 1270, told them falsely
that the pregnancy ended in miscarriage or termination, see, e.g., A
Child’s Hope, LLC v. Doe, 178 N. C. App. 96, 630 S. E. 2d 673 (2006), or
otherwise obstructed the father’s involvement in the child’s life, see,
e.g., In re Baby Girl W., 728 S. W. 2d 545 (Mo. App. 1987) (birth mother
moved and did not inform father of her whereabouts); In re Petition of
Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancy
expenses until birth mother cut off contact with him and told him that
their child had died shortly after birth). And it includes biological
fathers who did not contribute to pregnancy expenses because they
were unable to do so, whether because the father lacked sufficient
means, the expenses were covered by a third party, or the birth mother
did not pass on the relevant bills. See, e.g., In re Adoption of B. V.,
2001 UT App 290, ¶¶ 24–31, 33 P. 3d 1083, 1087–1088. 14 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
cies in the care the child received from her custodial
parent, the State placed the child with a foster family
and proposed her ultimate adoption by them. Clearly,
the father’s parental rights would have to be terminated
before the adoption could go forward.9
On the majority’s
view, notwithstanding the fact that this father would be
a “parent” under ICWA, he would not receive the benefit
of either §1912(d) or §1912(f ). Presumably the court con
sidering the adoption petition would have to apply some
standard to determine whether termination of his paren
tal rights was appropriate. But from whence would that
standard come?
Not from the statute Congress drafted, according to the
majority. The majority suggests that it might come from
state law. See ante, at 13, n. 8. But it is incongruous to
suppose that Congress intended a patchwork of federal
and state law to apply in termination of parental rights
proceedings. Congress enacted a statute aimed at protect
——————
The majority expresses the concern that my reading of the statute
would produce “far-reaching consequences,” because “even a sperm
donor” would be entitled to ICWA’s protections. Ante, at 13–14, n. 8. If
there are any examples of women who go to the trouble and expense of
artificial insemination and then carry the child to term, only to put the
child up for adoption or be found so unfit as mothers that state authori
ties attempt an involuntary adoptive placement—thereby necessitating
termination of the parental rights of the sperm donor father—the ma
jority does not cite them. As between a possibly overinclusive in
terpretation of the statute that covers this unlikely class of cases, and
the majority’s underinclusive interpretation that has the very real
consequence of denying ICWA’s protections to all noncustodial biologi
cal fathers, it is surely the majority’s reading that is contrary to ICWA’s
design.
9
With a few exceptions not relevant here, before a final decree of
adoption may be entered, one of two things must happen: “the biological
parents must either voluntarily relinquish their parental rights or have
their rights involuntarily terminated.” 2A. Haralambie, Handling
Child Custody, Abuse and Adoption Cases §14.1, pp.764–765 (3d ed.
2009) (footnote omitted). Cite as: 570 U. S. ____ (2013) 15
SOTOMAYOR, J., dissenting
ing the familial relationships between Indian parents and
their children because it concluded that state authorities
“often failed to recognize the essential tribal relations of
Indian people and the cultural and social standards pre
vailing in Indian communities and families.” 25 U. S. C.
§1901(5). It provided a “minimum Federal standar[d],”
§1902, for termination of parental rights that is more
demanding than the showing of unfitness under a high
“clear and convincing evidence” standard that is the norm
in the States, see 1 J. Hollinger, Adoption Law and Prac
tice §2.10 (2012); Santosky, 455 U. S., at 767–768.
While some States might provide protections compar-
able to §1912(d)’s required remedial efforts and §1912(f )’s
heightened standard for termination of parental rights,
many will provide less. There is no reason to believe
Congress wished to leave protection of the parental rights
of a subset of ICWA “parent[s]” dependent on the happen
stance of where a particular “child custody proceeding”
takes place. I would apply, as the statute construed in
its totality commands, the standards Congress provided
in §§1912(d) and (f ) to the termination of all ICWA
“parent[s’]” parent-child relationships.
II
The majority’s textually strained and illogical reading of
the statute might be explicable, if not justified, if there
were reason to believe that it avoided anomalous results
or furthered a clear congressional policy. But neither of
these conditions is present here.
A
With respect to §1912(d), the majority states that it
would be “unusual” to apply a rehabilitation requirement
where a natural parent has never had custody of his child.
Ante, at 14. The majority does not support this bare asser
tion, and in fact state child welfare authorities can and do 16 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
provide reunification services for biological fathers who
have not previously had custody of their children.10 And
notwithstanding the South Carolina Supreme Court’s im-
precise interpretation of the provision, see 398 S. C., at
647–648, 731 S. E. 2d, at 562, §1912(d) does not require
the prospective adoptive family to themselves undertake
the mandated rehabilitative efforts. Rather, it requires the
party seeking termination of parental rights to “satisfy
the court that active efforts have been made” to provide
appropriate remedial services.
In other words, the prospective adoptive couple have to
make an evidentiary showing, not undertake person-to
person remedial outreach. The services themselves might
be attempted by the Indian child’s Tribe, a state agency,
or a private adoption agency. Such remedial efforts are
a familiar requirement of child welfare law, including fed-
eral child welfare policy. See 42 U. S. C. §671(a)(15)(B)
(requiring States receiving federal funds for foster care
and adoption assistance to make “reasonable efforts . . . to
preserve and reunify families” prior to foster care place
ment or removal of a child from its home).
——————
10See, e.g., Cal. Welf. & Inst. Code Ann. §361.5(a) (West Supp. 2013);
Francisco G. v. Superior Court, 91 Cal. App. 4th 586, 596, 110 Cal.
Rptr. 2d 679, 687 (2001) (stating that “the juvenile court ‘may’ order
reunification services for a biological father if the court determines that
the services will benefit the child”); In re T. B. W., 312 Ga. App. 733,
734–735, 719 S. E. 2d 589, 591 (2011) (describing reunification services
provided to biological father beginning when “he had yet to establish
his paternity” under state law, including efforts to facilitate visitation
and involving father in family “ ‘team meetings’ ”); In re Guardianship
of DMH, 161 N. J. 365, 391–394, 736 A. 2d 1261, 1275–1276 (1999)
(discussing what constitutes “reasonable efforts” to reunify a noncusto
dial biological father with his children in accordance with New Jersey
statutory requirements); In re Bernard T., 319 S. W. 3d 586, 600 (Tenn.
2010) (stating that “in appropriate circumstances, the Department [of
Children’s Services] must make reasonable efforts to reunite a child
with his or her biological parents or legal parents or even with the
child’s putative biological father”). Cite as: 570 U. S. ____ (2013) 17
SOTOMAYOR, J., dissenting
There is nothing “bizarre,” ante, at 14, about placing on
the party seeking to terminate a father’s parental rights
the burden of showing that the step is necessary as well as
justified. “For . . . natural parents, . . . the consequence of
an erroneous termination [of parental rights] is the un
necessary destruction of their natural family.” Santosky,
455 U. S., at 766. In any event, the question is a nonissue
in this case given the family court’s finding that Birth
Father is “a fit and proper person to have custody of his
child” who “has demonstrated [his] ability to parent effec
tively” and who possesses “unwavering love for this child.”
App. to Pet. for Cert. 128a (Sealed). Petitioners cannot
show that rehabilitative efforts have “proved unsuccess
ful,” 25 U. S. C. §1912(d), because Birth Father is not in
need of rehabilitation.11
B
On a more general level, the majority intimates that
ICWA grants Birth Father an undeserved windfall: in the
majority’s words, an “ICWA trump card” he can “play . . .
at the eleventh hour to override the mother’s decision and
the child’s best interests.” Ante, at 16. The implicit argu
ment is that Congress could not possibly have intended to
recognize a parent-child relationship between Birth Fa
ther and Baby Girl that would have to be legally termi
nated (either by valid consent or involuntary termination)
before the adoption could proceed.
——————
11The majority’s concerns about what might happen if no state or
tribal authority stepped in to provide remedial services are therefore
irrelevant here. Ante, at 14, n. 9. But as a general matter, if a parent
has rights that are an obstacle to an adoption, the state- and federal
law safeguards of those rights must be honored, irrespective of pro
spective adoptive parents’ understandable and valid desire to see the
adoption finalized. “We must remember that the purpose of an adop
tion is to provide a home for a child, not a child for a home.” In re
Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190 (Heiple, J,.
supplemental opinion supporting denial of rehearing). 18 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
But this supposed anomaly is illusory. In fact, the law
of at least 15 States did precisely that at the time ICWA
was passed.12 And the law of a number of States still does
so. The State of Arizona, for example, requires that notice
of an adoption petition be given to all “potential father[s]”
and that they be informed of their “right to seek custody.”
Ariz. Rev. Stat. §§8–106(G)–(J) (West Supp. 2012). In
Washington, an “alleged father[’s]” consent to adoption
is required absent the termination of his parental rights,
Wash. Rev. Code §§26.33.020(1), 26.33.160(1)(b) (2012);
and those rights may be terminated only “upon a showing
by clear, cogent, and convincing evidence” not only that
termination is in the best interest of the child and that the
——————
12See Ariz. Rev. Stat. Ann. §8–106(A)(1)(c) (1974–1983 West Supp.)
(consent of both natural parents necessary); Iowa Code §§600.3(2),
600A.2, 600A.8 (1977) (same); Ill. Comp. Stat., ch. 40, §1510 (West
1977) (same); Nev. Rev. Stat. §§127.040, 127.090 (1971) (same); R. I.
Gen. Laws §§15–7–5, 15–7–7 (Bobbs-Merrill 1970) (same); Conn. Gen.
Stat. §§45–61d, 45–61i(b)(2) (1979) (natural father’s consent required if
paternity acknowledged or judicially established); Fla. Stat. §63.062
(1979) (same); Ore. Rev. Stat. §§109.092, 109.312 (1975) (same); S. D.
Codified Laws §§25–6–1.1, 25–6–4 (Allen Smith 1976) (natural father’s
consent required if mother identifies him or if paternity is judicially
established); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-Merrill
Supp. 1980) (same); Ala. Code §26–10–3 (Michie 1977) (natural father’s
consent required when paternity judicially established); Minn. Stat.
§§259.24(a), 259.26(3)(a), (e), (f ), 259.261 (1978) (natural father’s
consent required when identified on birth certificate, paternity judi-
cially established, or paternity asserted by affidavit); N. H. Rev. Stat. Ann.
§170–B:5(I)(d) (1977) (natural father’s consent required if he files notice
of intent to claim paternity within set time from notice of prospective
adoption); Wash. Rev. Code §§26.32.040(5), 26.32.085 (1976) (natural
father’s consent required if paternity acknowledged, judicially estab
lished, or he files notice of intent to claim paternity within set time
from notice of prospective adoption); W. Va. Code Ann. §48–4–1 (Michie
Supp. 1979) (natural father’s consent required if father admits pater
nity by any means). See also Del. Code Ann., Tit. 13, §908(2) (Michie
Supp. 1980) (natural father’s consent required unless court finds that
dispensing with consent requirement is in best interests of the child);
Wyo. Stat. Ann. §§1–22–108, 1–22–109 (Michie 1988) (same). Cite as: 570 U. S. ____ (2013) 19
SOTOMAYOR, J., dissenting
father is withholding his consent to adoption contrary to
child’s best interests, but also that the father “has failed
to perform parental duties under circumstances showing
a substantial lack of regard for his parental obligations,”
§26.33.120(2).13
Without doubt, laws protecting biological fathers’ paren
tal rights can lead—even outside the context of ICWA—to
outcomes that are painful and distressing for both would
be adoptive families, who lose a much wanted child, and
children who must make a difficult transition. See, e.g.,
In re Adoption of Tobias D., 2012 Me. 45, ¶27, 40 A. 3d
990, 999 (recognizing that award of custody of 2½-year-old
child to biological father under applicable state law once
paternity is established will result in the “difficult and pain-
ful” necessity of “removing the child from the only home
he has ever known”). On the other hand, these rules
recognize that biological fathers have a valid interest in a
relationship with their child. See supra, at 6. And chil
dren have a reciprocal interest in knowing their biological
parents. See Santosky, 455 U. S., at 760–761, n. 11 (de
scribing the foreclosure of a newborn child’s opportunity to
“ever know his natural parents” as a “los[s] [that] cannot
be measured”). These rules also reflect the understanding
that the biological bond between a parent and a child is a
strong foundation on which a stable and caring relation
ship may be built. Many jurisdictions apply a custodial
preference for a fit natural parent over a party lacking
this biological link. See, e.g., Ex parte Terry, 494 So. 2d
628, 632 (Ala. 1986); Appeal of H. R., 581 A. 2d 1141, 1177
(D. C. 1990) (opinion of Ferren, J.); Stuhr v. Stuhr, 240
Neb. 239, 245, 481 N. W. 2d 212, 216 (1992); In re Michael
B., 80 N. Y. 2d 299, 309, 604 N. E. 2d 122, 127 (1992). Cf.
Smith v. Organization of Foster Families For Equality &
Reform, 431 U. S. 816, 845 (1977) (distinguishing a natu
——————
13See also, e.g., Nev. Rev. Stat. §§127.040(1)(a), 128.150 (2011). 20 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
ral parent’s “liberty interest in family privacy,” which has
its source “in intrinsic human rights,” with a foster par
ent’s parallel interest in his or her relationship with a
child, which has its “origins in an arrangement in which
the State has been a partner from the outset”). This pref
erence is founded in the “presumption that fit parents act
in the best interests of their children.” Troxel v. Granville,
530 U. S. 57, 68 (2000) (plurality opinion). “‘[H]istorically
[the law] has recognized that natural bonds of affection
[will] lead parents’” to promote their child’s well-being.
Ibid. (quoting Parham v. J. R., 442 U. S. 584, 602 (1979)).
Balancing the legitimate interests of unwed biological
fathers against the need for stability in a child’s family
situation is difficult, to be sure, and States have, over the
years, taken different approaches to the problem. Some
States, like South Carolina, have opted to hew to the con
stitutional baseline established by this Court’s prece-
dents and do not require a biological father’s consent to
adoption unless he has provided financial support during
pregnancy. See Quilloin v. Walcott, 434 U. S. 246, 254–
256 (1978); Lehr, 463 U. S., at 261. Other States, however, have decided to give the rights of biological fathers
more robust protection and to afford them consent rights
on the basis of their biological link to the child. At the
time that ICWA was passed, as noted, over one-fourth of
States did so. See supra, at 17–18.
ICWA, on a straightforward reading of the statute, is
consistent with the law of those States that protected, and
protect, birth fathers’ rights more vigorously. This read
ing can hardly be said to generate an anomaly. ICWA, as
all acknowledge, was “the product of rising concern . . .
[about] abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their
families.” Holyfield, 490 U. S., at 32. It stands to reason
that the Act would not render the legal status of an Indian
father’s relationship with his biological child fragile, but Cite as: 570 U. S. ____ (2013) 21
SOTOMAYOR, J., dissenting
would instead grant it a degree of protection commensu
rate with the more robust state-law standards.14
C
The majority also protests that a contrary result to the
one it reaches would interfere with the adoption of Indian
children. Ante, at 14, 16. This claim is the most perplex
ing of all. A central purpose of ICWA is to “promote the
stability and security of Indian . . . families,” 25 U. S. C.
§1902, in part by countering the trend of placing “an
alarmingly high percentage of [Indian] children . . . in nonIndian foster and adoptive homes and institutions.”
§1901(4). The Act accomplishes this goal by, first, protect
ing the familial bonds of Indian parents and children, see
supra, at 4–12; and, second, establishing placement pref
erences should an adoption take place, see §1915(a).
ICWA does not interfere with the adoption of Indian chil
dren except to the extent that it attempts to avert the
necessity of adoptive placement and makes adoptions of
Indian children by non-Indian families less likely.
The majority may consider this scheme unwise. But
no principle of construction licenses a court to interpret a
statute with a view to averting the very consequences
Congress expressly stated it was trying to bring about.
Instead, it is the “‘judicial duty to give faithful meaning to
——————
14It bears emphasizing that the ICWA standard for termination of
parental rights of which Birth Father claims the benefit is more protec
tive than, but not out of step with, the clear and convincing standard
generally applied in state courts when termination of parental rights
is sought. Birth Father does not claim that he is entitled to custody
of Baby Girl unless petitioners can satisfy the demanding standard of
§1912(f ). See Brief for Respondent Birth Father 40, n. 15. The ques
tion of custody would be analyzed independently, as it was by the South
Carolina Supreme Court. Of course, it will often be the case that cus
tody is subsequently granted to a child’s fit parent, consistent with
the presumption that a natural parent will act in the best interests of
his child. See supra, at 19–20. 22 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
the language Congress adopted in the light of the evi-
dent legislative purpose in enacting the law in question.’”
Graham County Soil and Water Conservation Dist. v.
United States ex rel. Wilson, 559 U. S. 280, 298 (2010)
(quoting United States v. Bornstein, 423 U. S. 303, 310
(1976)).
The majority further claims that its reading is con
sistent with the “primary” purpose of the Act, which in the
majority’s view was to prevent the dissolution of “intact”
Indian families. Ante, at 9–10. We may not, however, give
effect only to congressional goals we designate “primary”
while casting aside others classed as “secondary”; we must
apply the entire statute Congress has written. While there
are indications that central among Congress’ concerns
in enacting ICWA was the removal of Indian children
from homes in which Indian parents or other guardians
had custody of them, see, e.g., §§1901(4), 1902, Con-
gress also recognized that “there is no resource that is
more vital to the continued existence and integrity of
Indian tribes than their children,” §1901(3). As we ob
served in Holyfield, ICWA protects not only Indian par
ents’ interests but also those of Indian tribes. See 490
U. S., at 34, 52. A tribe’s interest in its next generation of
citizens is adversely affected by the placement of Indian
children in homes with no connection to the tribe, whether
or not those children were initially in the custody of an
Indian parent.15
Moreover, the majority’s focus on “intact” families, ante,
at 10, begs the question of what Congress set out to ac
complish with ICWA. In an ideal world, perhaps all
parents would be perfect. They would live up to their
——————
15Birth Father is a registered member of the Cherokee Nation, a fact
of which Birth Mother was aware at the time of her pregnancy and of
which she informed her attorney. See 398 S. C. 625, 632–633, 731 S. E.
2d 550, 554 (2012). Cite as: 570 U. S. ____ (2013) 23
SOTOMAYOR, J., dissenting
parental responsibilities by providing the fullest possible
financial and emotional support to their children. They
would never suffer mental health problems, lose their jobs,
struggle with substance dependency, or encounter any of
the other multitudinous personal crises that can make it
difficult to meet these responsibilities. In an ideal world
parents would never become estranged and leave their
children caught in the middle. But we do not live in
such a world. Even happy families do not always fit the
custodial-parent mold for which the majority would reserve
IWCA’s substantive protections; unhappy families all too
often do not. They are families nonetheless. Congress
understood as much. ICWA’s definitions of “parent” and
“termination of parental rights” provided in §1903 sweep
broadly. They should be honored.
D
The majority does not rely on the theory pressed by
petitioners and the guardian ad litem that the canon of
constitutional avoidance compels the conclusion that ICWA
is inapplicable here. See Brief for Petitioners 43–51;
Brief for Respondent Guardian Ad Litem 48–58. It
states instead that it finds the statute clear.16 Ante, at 17.
But the majority nevertheless offers the suggestion that a
contrary result would create an equal protection problem.
Ibid. Cf. Brief for Petitioners 44–47; Brief for Respondent
——————
16 JUSTICE THOMAS concurs in the majority’s interpretation because,
although he finds the statute susceptible of more than one plausible
reading, he believes that the majority’s reading avoids “significant
constitutional problems” concerning whether ICWA exceeds Congress’
authority under the Indian Commerce Clause. Ante, at 1, 3–12. No
party advanced this argument, and it is inconsistent with this Court’s
precedents holding that Congress has “broad general powers to leg-
islate in respect to Indian tribes, powers that we have consistently
described as plenary and exclusive,” founded not only on the Indian
Commerce Clause but also the Treaty Clause. United States v. Lara,
541 U. S. 193, 200–201 (2004) (internal quotation marks omitted). 24 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
Guardian Ad Litem 53–55.
It is difficult to make sense of this suggestion in light of
our precedents, which squarely hold that classifications
based on Indian tribal membership are not impermissible
racial classifications. See United States v. Antelope, 430
U. S. 641, 645–647 (1977); Morton v. Mancari, 417 U. S.
535, 553–554 (1974). The majority’s repeated, analytically
unnecessary references to the fact that Baby Girl is 3/256
Cherokee by ancestry do nothing to elucidate its intima
tion that the statute may violate the Equal Protection
Clause as applied here. See ante, at 1, 6; see also ante,
at 16 (stating that ICWA “would put certain vulner-
able children at a great disadvantage solely because an
ancestor—even a remote one—was an Indian” (emphasis
added)). I see no ground for this Court to second-guess the
membership requirements of federally recognized Indian
tribes, which are independent political entities. See Santa
Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978).
I am particularly averse to doing so when the Federal
Government requires Indian tribes, as a prerequisite for
official recognition, to make “descen[t] from a historical
Indian tribe” a condition of membership. 25 CFR §83.7(e)
(2012).
The majority’s treatment of this issue, in the end, does
no more than create a lingering mood of disapprobation of
the criteria for membership adopted by the Cherokee
Nation that, in turn, make Baby Girl an “Indian child”
under the statute. Its hints at lurking constitutional
problems are, by its own account, irrelevant to its statutory
analysis, and accordingly need not detain us any longer.
III
Because I would affirm the South Carolina Supreme
Court on the ground that §1912 bars the termination of
Birth Father’s parental rights, I would not reach the
question of the applicability of the adoptive placement Cite as: 570 U. S. ____ (2013) 25
SOTOMAYOR, J., dissenting
preferences of §1915. I note, however, that the majority
does not and cannot foreclose the possibility that on re
mand, Baby Girl’s paternal grandparents or other mem
bers of the Cherokee Nation may formally petition for
adoption of Baby Girl. If these parties do so, and if on
remand Birth Father’s parental rights are terminated so
that an adoption becomes possible, they will then be enti
tled to consideration under the order of preference estab
lished in §1915. The majority cannot rule prospectively
that §1915 would not apply to an adoption petition that
has not yet been filed. Indeed, the statute applies “[i]n
any adoptive placement of an Indian child under State
law,” 25 U. S. C. §1915(a) (emphasis added), and contains
no temporal qualifications. It would indeed be an odd
result for this Court, in the name of the child’s best interests, cf. ante, at 15, to purport to exclude from the pro
ceedings possible custodians for Baby Girl, such as her
paternal grandparents, who may have well-established
relationships with her.
* * *
The majority opinion turns §1912 upside down, reading
it from bottom to top in order to reach a conclusion that is
manifestly contrary to Congress’ express purpose in enact
ing ICWA: preserving the familial bonds between Indian
parents and their children and, more broadly, Indian
tribes’ relationships with the future citizens who are “vital
to [their] continued existence and integrity.” §1901(3).
The majority casts Birth Father as responsible for the
painful circumstances in this case, suggesting that he
intervened “at the eleventh hour to override the mother’s
decision and the child’s best interests,” ante, at 16. I have
no wish to minimize the trauma of removing a 27-month
old child from her adoptive family. It bears remembering,
however, that Birth Father took action to assert his paren
tal rights when Baby Girl was four months old, as soon as 26 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
he learned of the impending adoption. As the South Caro
lina Supreme Court recognized, “ ‘[h]ad the mandate of . . .
ICWA been followed [in 2010], . . . 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.”’” 398
S. C., at 652, 731 S. E. 2d, at 564 (quoting Holyfield, 490
U. S., at 53–54).
The majority’s hollow literalism distorts the statute and
ignores Congress’ purpose in order to rectify a perceived
wrong that, while heartbreaking at the time, was a correct
application of federal law and that in any case cannot be
undone. Baby Girl has now resided with her father for 18
months. However difficult it must have been for her to
leave Adoptive Couple’s home when she was just over 2
years old, it will be equally devastating now if, at the age
of 3½, she is again removed from her home and sent to live
halfway across the country. Such a fate is not foreor
dained, of course. But it can be said with certainty that
the anguish this case has caused will only be compounded
by today’s decision.
I believe that the South Carolina Supreme Court’s
judgment was correct, and I would affirm it. I respectfully
dissent.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ADOPTIVE COUPLE v. BABY GIRL, A MINOR CHILD
UNDER THE AGE OF FOURTEEN YEARS, ET AL.
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 12–399. Argued April 16, 2013—Decided June 25, 2013
The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences . . . of abusive
child welfare practices that [separated] Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v.
Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened
showing that serious harm to the Indian child is likely to result from
the parent’s “continued custody” of the child, 25 U. S. C. §1912(f);
conditions involuntary termination of parental rights with respect to
an Indian child on a showing that remedial efforts have been made to
prevent the “breakup of the Indian family,” §1912(d); and provides
placement preferences for the adoption of Indian children to members
of the child’s extended family, other members of the Indian child’s
tribe, and other Indian families, §1915(a).
While Birth Mother was pregnant with Biological Father’s child,
their relationship ended and Biological Father (a member of the
Cherokee Nation) agreed to relinquish his parental rights. Birth
Mother put Baby Girl up for adoption through a private adoption
agency and selected Adoptive Couple, non-Indians living in South
Carolina. For the duration of the pregnancy and the first four
months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after
Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological
Father sought custody and stated that he did not consent to the adoption. Following a trial, which took place when Baby Girl was two 2 ADOPTIVE COUPLE v. BABY GIRL
Syllabus
years old, the South Carolina Family Court denied Adoptive Couple’s
adoption petition and awarded custody to Biological Father. At the
age of 27 months, Baby Girl was handed over to Biological Father,
whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding
related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his
parental rights; and that had his rights been terminated, §1915(a)’s
adoption-placement preferences would have applied.
Held:
1. Assuming for the sake of argument that Biological Father is a
“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the
termination of his parental rights. Pp. 6–14.
(a) Section 1912(f) conditions the involuntary termination of parental rights on a heightened showing regarding the merits of the
parent’s “continued custody of the child.” The adjective “continued”
plainly refers to a pre-existing state under ordinary dictionary definitions. The phrase “continued custody” thus refers to custody that a
parent already has (or at least had at some point in the past). As a
result, §1912(f) does not apply where the Indian parent never had
custody of the Indian child. This reading comports with the statutory
text, which demonstrates that the ICWA was designed primarily to
counteract the unwarranted removal of Indian children from Indian
families. See §1901(4). But the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. Nonbinding
guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate
that the BIA envisioned that §1912(f)’s standard would apply only to
termination of a custodial parent’s rights. Under this reading, Biological Father should not have been able to invoke §1912(f) in this
case because he had never had legal or physical custody of Baby Girl
as of the time of the adoption proceedings. Pp. 7–11.
(b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active
efforts have been made to provide remedial services . . . designed to
prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to
“[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s
Third New International Dictionary 273 (1961). But when an Indian
parent abandons an Indian child prior to birth and that child has
never been in the Indian parent’s legal or physical custody, there is Cite as: 570 U. S. ____ (2013) 3
Syllabus
no “relationship” to be “discontinu[ed]” and no “effective entity” to be
“end[ed]” by terminating the Indian parent’s rights. In such a situation, the “breakup of the Indian family” has long since occurred, and
§1912(d) is inapplicable. This interpretation is consistent with the
explicit congressional purpose of setting certain “standards for the
removal of Indian children from their families,” §1902, and with BIA
Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which
both condition the outcome of proceedings on the merits of an Indian
child’s “continued custody” with his parent, strongly suggests that
the phrase “breakup of the Indian family” should be read in harmony
with the “continued custody” requirement. Pp. 11–14.
2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt
the child. No party other than Adoptive Couple sought to adopt Baby
Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek to
adopt Baby Girl; instead, he argued that his parental rights should
not be terminated in the first place. And custody was never sought
by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16.
398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion.
SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE ALITO delivered the opinion of the Court.
This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.
Because Baby Girl is classified in this way, the South
Carolina Supreme Court held that certain provisions of
the federal Indian Child Welfare Act of 1978 required her
to be taken, at the age of 27 months, from the only parents
she had ever known and handed over to her biological
father, who had attempted to relinquish his parental
rights and who had no prior contact with the child. The
provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court’s ruling, we hold
that 25 U. S. C. §1912(f )—which bars involuntary termination of a parent’s rights in the absence of a heightened
showing that serious harm to the Indian child is likely to
result from the parent’s “continued custody” of the child—
does not apply when, as here, the relevant parent never
had custody of the child. We further hold that §1912(d)—
which conditions involuntary termination of parental 2 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
rights with respect to an Indian child on a showing that
remedial efforts have been made to prevent the “breakup
of the Indian family”—is inapplicable when, as here, the
parent abandoned the Indian child before birth and never
had custody of the child. Finally, we clarify that §1915(a),
which provides placement preferences for the adoption of
Indian children, does not bar a non-Indian family like
Adoptive Couple from adopting an Indian child when no
other eligible candidates have sought to adopt the child.
We accordingly reverse the South Carolina Supreme Court’s
judgment and remand for further proceedings.
I
“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 In-
dian 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.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Congress found
that “an alarmingly high percentage of Indian families
[were being] broken up by the removal, often unwarranted,
of their children from them by nontribal public and
private agencies.” §1901(4). This “wholesale removal of
Indian children from their homes” prompted Congress to
enact the ICWA, which establishes federal standards that
govern state-court child custody proceedings involving
Indian children. Id., at 32, 36 (internal quotation marks
omitted); see also §1902 (declaring that the ICWA establishes “minimum Federal standards for the removal of
Indian children from their families”).1
——————
1
It is undisputed that Baby Girl is an “Indian child” as defined by the
ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
Three provisions of the ICWA are especially relevant to
this case. First, “[a]ny party seeking” an involuntary
termination of parental rights to an Indian child under
state law must demonstrate that “active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.”
§1912(d). Second, a state court may not involuntarily
terminate parental rights to an Indian child “in the absence of a determination, supported by evidence beyond a
reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” §1912(f ).
Third, with respect to adoptive placements for 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.” §1915(a).
II
In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the
Cherokee Nation) became engaged in December 2008.
One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father
——————
Indian tribe,” §1903(4)(b). See Brief for Respondent Birth Father 1, 51,
n. 22; Brief for Respondent Cherokee Nation 1; Brief for Petitioners 44
(“Baby Girl’s eligibility for membership in the Cherokee Nation depends solely upon a lineal blood relationship with a tribal ancestor”).
It is also undisputed that the present case concerns a “child custody
proceeding,” which the ICWA defines to include proceedings that
involve “termination of parental rights” and “adoptive placement,”
§1903(1). 4 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
asked Birth Mother to move up the date of the wedding.
He also refused to provide any financial support until after
the two had married. The couple’s relationship deteriorated,
and Birth Mother broke off the engagement in May 2009.
In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded
via text message that he relinquished his rights.
Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted
the Cherokee Nation to determine whether Biological
Father was formally enrolled. The inquiry letter misspelled Biological Father’s first name and incorrectly
stated his birthday, and the Cherokee Nation responded
that, based on the information provided, it could not verify
Biological Father’s membership in the tribal records.
Working through a private adoption agency, Birth
Mother selected Adoptive Couple, non-Indians living in
South Carolina, to adopt Baby Girl. Adoptive Couple
supported Birth Mother both emotionally and financially
throughout her pregnancy. Adoptive Couple was present
at Baby Girl’s birth in Oklahoma on September 15, 2009,
and Adoptive Father even cut the umbilical cord. The
next morning, Birth Mother signed forms relinquishing
her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl.
After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby
Girl.
It is undisputed that, for the duration of the pregnancy
and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother
or Baby Girl, even though he had the ability to do so. Indeed, Biological Father “made no meaningful attempts Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
to assume his responsibility of parenthood” during this
period. App. to Pet. for Cert. 122a (Sealed; internal quotation marks omitted).
Approximately four months after Baby Girl’s birth,
Adoptive Couple served Biological Father with notice of
the pending adoption. (This was the first notification
that they had provided to Biological Father regarding
the adoption proceeding.) Biological Father signed papers
stating that he accepted service and that he was “not
contesting the adoption.” App. 37. But Biological Father
later testified that, at the time he signed the papers, he
thought that he was relinquishing his rights to Birth
Mother, not to Adoptive Couple.
Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of the
adoption proceedings.2 In the adoption proceedings, Biological Father sought custody and stated that he did not
consent to Baby Girl’s adoption. Moreover, Biological
Father took a paternity test, which verified that he was
Baby Girl’s biological father.
A trial took place in the South Carolina Family Court in
September 2011, by which time Baby Girl was two years
old. 398 S. C. 625, 634–635, 731 S. E. 2d 550, 555–556
(2012). The Family Court concluded that Adoptive Couple
had not carried the heightened burden under §1912(f ) of
proving that Baby Girl would suffer serious emotional or
physical damage if Biological Father had custody. See id.,
at 648–651, 731 S. E. 2d, at 562–564. The Family Court
therefore denied Adoptive Couple’s petition for adoption
and awarded custody to Biological Father. Id., at 629,
636, 731 S. E. 2d, at 552, 556. On December 31, 2011, at
——————
2
Around the same time, the Cherokee Nation identified Biological
Father as a registered member and concluded that Baby Girl was an
“Indian child” as defined in the ICWA. The Cherokee Nation intervened in the litigation approximately three months later. 6 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met.3
The South Carolina Supreme Court affirmed the Family
Court’s denial of the adoption and the award of custody to
Biological Father. Id., at 629, 731 S. E. 2d, at 552. The
State Supreme Court first determined that the ICWA
applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731
S. E. 2d, at 556, 560, n. 18. It also concluded that Biological Father fell within the ICWA’s definition of a “‘parent.’”
Id., at 644, 731 S. E. 2d, at 560. The court then held that
two separate provisions of the ICWA barred the termination of Biological Father’s parental rights. First, the court
held that Adoptive Couple had not shown that “active
efforts ha[d] been made to provide remedial services and
rehabilitative programs designed to prevent the breakup
of the Indian family.” §1912(d); see also id., at 647–648,
731 S. E. 2d, at 562. Second, the court concluded that
Adoptive Couple had not shown that Biological Father’s
“custody of Baby Girl would result in serious emotional or
physical harm to her beyond a reasonable doubt.” Id., at
648–649, 731 S. E. 2d, at 562–563 (citing §1912(f )). Finally,
the court stated that, even if it had decided to terminate
Biological Father’s parental rights, §1915(a)’s adoption-
placement preferences would have applied. Id., at 655–657,
731 S. E. 2d, at 566–567. We granted certiorari. 568 U. S.
___ (2013).
III
It is undisputed that, had Baby Girl not been 3/256
Cherokee, Biological Father would have had no right to
——————
3
According to the guardian ad litem, Biological Father allowed Baby
Girl to speak with Adoptive Couple by telephone the following day, but
then cut off all communication between them. Moreover, according to
Birth Mother, Biological Father has made no attempt to contact her
since the time he took custody of Baby Girl. Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
object to her adoption under South Carolina law. See Tr.
of Oral Arg. 49; 398 S. C., at 644, n. 19, 731 S. E. 2d, at
560, n. 19 (“Under state law, [Biological] Father’s con-
sent to the adoption would not have been required”). The
South Carolina Supreme Court held, however, that Biological Father is a “parent” under the ICWA and that two
statutory provisions—namely, §1912(f ) and §1912(d)—bar
the termination of his parental rights. In this Court,
Adoptive Couple contends that Biological Father is not a
“parent” and that §1912(f ) and §1912(d) are inapplicable.
We need not—and therefore do not—decide whether Biological Father is a “parent.” See §1903(9) (defining “parent”).4
Rather, assuming for the sake of argument that he
is a “parent,” we hold that neither §1912(f ) nor §1912(d)
bars the termination of his parental rights.
A
Section 1912(f ) addresses the involuntary termination
of parental rights with respect to an Indian child. Specifically, §1912(f ) provides that “[n]o termination of parental
rights may be ordered in such proceeding in the absence of
a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by
the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” (Emphasis
added.) The South Carolina Supreme Court held that
Adoptive Couple failed to satisfy §1912(f ) because they did
not make a heightened showing that Biological Father’s
“prospective legal and physical custody” would likely result
in serious damage to the child. 398 S. C., at 651, 731 S. E.
2d, at 564 (emphasis added). That holding was error.
——————
4
If Biological Father is not a “parent” under the ICWA, then §1912(f )
and §1912(d)—which relate to proceedings involving possible termination of “parental” rights—are inapplicable. Because we conclude that
these provisions are inapplicable for other reasons, however, we need
not decide whether Biological Father is a “parent.” 8 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
Section 1912(f ) conditions the involuntary termination
of parental rights on a showing regarding the merits of
“continued custody of the child by the parent.” (Emphasis
added.) The adjective “continued” plainly refers to a preexisting state. As JUSTICE SOTOMAYOR concedes, post, at
11 (dissenting opinion) (hereinafter the dissent), “continued” means “[c]arried on or kept up without cessation”
or “[e]xtended in space without interruption or breach of
conne[ct]ion.” Compact Edition of the Oxford English
Dictionary 909 (1981 reprint of 1971 ed.) (Compact OED);
see also American Heritage Dictionary 288 (1981) (defining “continue” in the following manner: “1. To go on with
a particular action or in a particular condition; persist. . . .
3. To remain in the same state, capacity, or place”); Webster’s Third New International Dictionary 493 (1961)
(Webster’s) (defining “continued” as “stretching out in time
or space esp. without interruption”); Aguilar v. FDIC, 63
F. 3d 1059, 1062 (CA11 1995) (per curiam) (suggesting
that the phrase “continue an action” means “go on with . . .
an action” that is “preexisting”). The term “continued”
also can mean “resumed after interruption.” Webster’s
493; see American Heritage Dictionary 288. The phrase
“continued custody” therefore refers to custody that a
parent already has (or at least had at some point in the
past). As a result, §1912(f ) does not apply in cases where
the Indian parent never had custody of the Indian child.5
Biological Father’s contrary reading of §1912(f ) is nonsensical. Pointing to the provision’s requirement that
——————
5
With a torrent of words, the dissent attempts to obscure the fact
that its interpretation simply cannot be squared with the statutory
text. A biological father’s “continued custody” of a child cannot be
assessed if the father never had custody at all, and the use of a different phrase—“termination of parental rights”—cannot change that. In
addition, the dissent’s reliance on subsection headings, post, at 9,
overlooks the fact that those headings were not actually enacted by
Congress. See 92 Stat. 3071–3072. Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
“[n]o termination of parental rights may be ordered . . . in
the absence of a determination” relating to “the continued
custody of the child by the parent,” Biological Father
contends that if a determination relating to “continued
custody” is inapposite in cases where there is no “custody,”
the statutory text prohibits termination. See Brief for
Respondent Birth Father 39. But it would be absurd to
think that Congress enacted a provision that permits
termination of a custodial parent’s rights, while simultaneously prohibiting termination of a noncustodial parent’s
rights. If the statute draws any distinction between
custodial and noncustodial parents, that distinction
surely does not provide greater protection for noncustodial
parents.6
Our reading of §1912(f ) comports with the statutory text
demonstrating that the primary mischief the ICWA was
designed to counteract was the unwarranted removal of
Indian children from Indian families due to the cultural
insensitivity and biases of social workers and state courts.
The statutory text expressly highlights the primary problem that the statute was intended to solve: “an alarmingly
high percentage of Indian families [were being] broken up
by the removal, often unwarranted, of their children from
them by nontribal public and private agencies.” §1901(4)
(emphasis added); see also §1902 (explaining that the
ICWA establishes “minimum Federal standards for the
removal of Indian children from their families” (emphasis
added)); Holyfield, 490 U. S., at 32–34. And if the legislative history of the ICWA is thought to be relevant, it fur-
——————
6
The dissent criticizes us for allegedly concluding that a biological
father qualifies for “substantive” statutory protections “only when [he]
has physical or state-recognized legal custody.” Post, at 2, 6–7. But the
dissent undercuts its own point when it states that “numerous” ICWA
provisions not at issue here afford “meaningful” protections to biological
fathers regardless of whether they ever had custody. Post, at 4–7, and
nn. 1, 2. 10 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
ther underscores that the Act was primarily intended to
stem the unwarranted removal of Indian children from
intact Indian families. See, e.g., H. R. Rep. No. 95–1386,
p. 8 (1978) (explaining that, as relevant here, “[t]he purpose of [the ICWA] is to protect the best interests of 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” (emphasis added)); id., at 9 (decrying the
“wholesale separation of Indian children” from their Indian
families); id., at 22 (discussing “the removal” of Indian
children from their parents pursuant to §§1912(e) and (f )).
In sum, when, as here, the adoption of an Indian child is
voluntarily and lawfully initiated by a non-Indian parent
with sole custodial rights, the ICWA’s primary goal of
preventing the unwarranted removal of Indian children
and the dissolution of Indian families is not implicated.
The dissent fails to dispute that nonbinding guidelines
issued by the Bureau of Indian Affairs (BIA) shortly after
the ICWA’s enactment demonstrate that the BIA envisioned that §1912(f )’s standard would apply only to termination of a custodial parent’s rights. Specifically, the BIA
stated that, under §1912(f ), “[a] child may not be removed
simply because there is someone else willing to raise the
child who is likely to do a better job”; instead, “[i]t must
be shown that . . . it is dangerous for the child to remain
with his or her present custodians.” Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67593 (1979) (emphasis added) (hereinafter Guidelines).
Indeed, the Guidelines recognized that §1912(f ) applies
only when there is pre-existing custody to evaluate. See
ibid. (“[T]he issue on which qualified expert testimony is
required is the question of whether or not serious damage
to the child is likely to occur if the child is not removed”).
Under our reading of §1912(f ), Biological Father should Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
not have been able to invoke §1912(f ) in this case, because
he had never had legal or physical custody of Baby Girl as
of the time of the adoption proceedings. As an initial
matter, it is undisputed that Biological Father never had
physical custody of Baby Girl. And as a matter of both
South Carolina and Oklahoma law, Biological Father
never had legal custody either. See S. C. Code Ann. §63–
17–20(B) (2010) (“Unless the court orders otherwise, the
custody of an illegitimate child is solely in the natural
mother unless the mother has relinquished her rights to
the child”); Okla. Stat., Tit. 10, §7800 (West Cum. Supp.
2013) (“Except as otherwise provided by law, the mother
of a child born out of wedlock has custody of the child
until determined otherwise by a court of competent
jurisdiction”).7
In sum, the South Carolina Supreme Court erred in
finding that §1912(f ) barred termination of Biological
Father’s parental rights.
B
Section 1912(d) provides that “[a]ny party” seeking to
terminate parental rights to an Indian child under state
law “shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
——————
7
In an effort to rebut our supposed conclusion that “Congress could
not possibly have intended” to require legal termination of Biological
Father’s rights with respect to Baby Girl, the dissent asserts that a
minority of States afford (or used to afford) protection to similarly
situated biological fathers. See post, at 17–18, and n. 12 (emphasis
added). This is entirely beside the point, because we merely conclude
that, based on the statute’s text and structure, Congress did not extend
the heightened protections of §1912(d) and §1912(f ) to all biological
fathers. The fact that state laws may provide certain protections to
biological fathers who have abandoned their children and who have
never had custody of their children in no way undermines our analysis
of these two federal statutory provisions. 12 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
family and that these efforts have proved unsuccessful.”
(Emphasis added.) The South Carolina Supreme Court
found that Biological Father’s parental rights could not
be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial
services in accordance with §1912(d). 398 S. C., at 647–
648, 731 S. E. 2d, at 562. We disagree.
Consistent with the statutory text, we hold that
§1912(d) applies only in cases where an Indian family’s
“breakup” would be precipitated by the termination of the
parent’s rights. The term “breakup” refers in this context
to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an
effective entity,” Webster’s 273 (defining “breakup” as “a
disruption or dissolution into component parts: an ending
as an effective entity”). See also Compact OED 1076
(defining “break-up” as, inter alia, a “disruption, separation into parts, disintegration”). But when an Indian
parent abandons an Indian child prior to birth and that
child has never been in the Indian parent’s legal or
physical custody, there is no “relationship” that would be
“discontinu[ed]”—and no “effective entity” that would
be “end[ed]”—by the termination of the Indian par-
ent’s rights. In such a situation, the “breakup of the
Indian family” has long since occurred, and §1912(d) is
inapplicable.
Our interpretation of §1912(d) is, like our interpretation
of §1912(f ), consistent with the explicit congressional
purpose of providing certain “standards for the removal of
Indian children from their families.” §1902 (emphasis
added); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32–
34. In addition, the BIA’s Guidelines confirm that remedial services under §1912(d) are intended “to alleviate the
need to remove the Indian child from his or her parents or
Indian custodians,” not to facilitate a transfer of the child
to an Indian parent. See 44 Fed. Reg., at 67592 (emphasis Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
added).
Our interpretation of §1912(d) is also confirmed by the
provision’s placement next to §1912(e) and §1912(f ), both
of which condition the outcome of proceedings on the
merits of an Indian child’s “continued custody” with his
parent. That these three provisions appear adjacent to
each other strongly suggests that the phrase “breakup of
the Indian family” should be read in harmony with the
“continued custody” requirement. See United Sav. Assn.
of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484
U. S. 365, 371 (1988) (explaining that statutory construction “is a holistic endeavor” and that “[a] provision that
may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme”). None of these three
provisions creates parental rights for unwed fathers where
no such rights would otherwise exist. Instead, Indian
parents who are already part of an “Indian family” are
provided with access to “remedial services and rehabilitative programs” under §1912(d) so that their “custody”
might be “continued” in a way that avoids foster-care
placement under §1912(e) or termination of parental
rights under §1912(f ). In other words, the provision of
“remedial services and rehabilitative programs” under
§1912(d) supports the “continued custody” that is protected
by §1912(e) and §1912(f ).8
——————
8
The dissent claims that our reasoning “necessarily extends to all
Indian parents who have never had custody of their children,” even if
those parents have visitation rights. Post, at 2–3, 13–14. As an initial
matter, the dissent’s concern about the effect of our decision on individuals with visitation rights will be implicated, at most, in a relatively
small class of cases. For example, our interpretation of §1912(d) would
implicate the dissent’s concern only in the case of a parent who abandoned his or her child prior to birth and never had physical or legal
custody, but did have some sort of visitation rights. Moreover, in cases
where this concern is implicated, such parents might receive “comparable” protections under state law. See post, at 15. And in any event, it is
the dissent’s interpretation that would have far-reaching consequences: 14 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
Section 1912(d) is a sensible requirement when applied
to state social workers who might otherwise be too quick
to remove Indian children from their Indian families. It
would, however, be unusual to apply §1912(d) in the context of an Indian parent who abandoned a child prior to
birth and who never had custody of the child. The decision
below illustrates this point. The South Carolina Supreme
Court held that §1912(d) mandated measures such as
“attempting to stimulate [Biological] Father’s desire to be
a parent.” 398 S. C., at 647, 731 S. E. 2d, at 562. But if
prospective adoptive parents were required to engage in
the bizarre undertaking of “stimulat[ing]” a biological
father’s “desire to be a parent,” it would surely dissuade
some of them from seeking to adopt Indian children.9
And
this would, in turn, unnecessarily place vulnerable Indian
children at a unique disadvantage in finding a permanent
and loving home, even in cases where neither an Indian
parent nor the relevant tribe objects to the adoption.10
In sum, the South Carolina Supreme Court erred in
finding that §1912(d) barred termination of Biological
Father’s parental rights.
IV
In the decision below, the South Carolina Supreme
——————
Under the dissent’s reading, any biological parent—even a sperm
donor—would enjoy the heightened protections of §1912(d) and
§1912(f ), even if he abandoned the mother and the child immediately
after conception. Post, at 14, n. 8.
9
Biological Father and the Solicitor General argue that a tribe
or state agency could provide the requisite remedial services under
§1912(d). Brief for Respondent Birth Father 43; Brief for United States
as Amicus Curiae 22. But what if they don’t? And if they don’t, would
the adoptive parents have to undertake the task?
10The dissent repeatedly mischaracterizes our opinion. As our detailed discussion of the terms of the ICWA makes clear, our decision
is not based on a “[p]olicy disagreement with Congress’ judgment.” Post,
at 2; see also post, at 8, 21. Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
Court suggested that if it had terminated Biological Father’s rights, then §1915(a)’s preferences for the adoptive
placement of an Indian child would have been applicable.
398 S. C., at 655–657, 731 S. E. 2d, at 566–567. In so
doing, however, the court failed to recognize a critical lim-
itation on the scope of §1915(a).
Section 1915(a) provides that “[i]n 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.” Contrary to the South Carolina
Supreme Court’s suggestion, §1915(a)’s preferences are
inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there
simply is no “preference” to apply if no alternative party
that is eligible to be preferred under §1915(a) has come
forward.
In this case, Adoptive Couple was the only party that
sought to adopt Baby Girl in the Family Court or the
South Carolina Supreme Court. See Brief for Petitioners
19, 55; Brief for Respondent Birth Father 48; Reply Brief
for Petitioners 13. Biological Father is not covered by
§1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be
terminated in the first place.11 Moreover, Baby Girl’s
——————
11Section 1915(c) also provides that, in the case of an adoptive placement under §1915(a), “if the Indian child’s tribe shall establish a
different order of preference by resolution, the agency or court effecting
the placement shall follow such order so long as the placement is the
least restrictive setting appropriate to the particular needs of the child,
as provided in [§1915(b)].” Although we need not decide the issue
here, it may be the case that an Indian child’s tribe could alter §1915’s
preferences in a way that includes a biological father whose rights were
terminated, but who has now reformed. See §1915(c). If a tribe were to
take such an approach, however, the court would still have the power to
determine whether “good cause” exists to disregard the tribe’s order of 16 ADOPTIVE COUPLE v. BABY GIRL
Opinion of the Court
paternal grandparents never sought custody of Baby Girl.
See Brief for Petitioners 55; Reply Brief for Petitioners 13;
398 S. C., at 699, 731 S. E. 2d, at 590 (Kittredge, J., dissenting) (noting that the “paternal grandparents are not
parties to this action”). Nor did other members of the
Cherokee Nation or “other Indian families” seek to adopt
Baby Girl, even though the Cherokee Nation had notice
of—and intervened in—the adoption proceedings. See
Brief for Respondent Cherokee Nation 21–22; Reply Brief
for Petitioners 13–14.12
* * *
The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes,
but under the State Supreme Court’s reading, the Act
would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—
was an Indian. As the State Supreme Court read
§§1912(d) and (f ), a biological Indian father could abandon
his child in utero and refuse any support for the birth
mother—perhaps contributing to the mother’s decision to
put the child up for adoption—and then could play his
ICWA trump card at the eleventh hour to override the
mother’s decision and the child’s best interests. If this
were possible, many prospective adoptive parents would
surely pause before adopting any child who might possibly
qualify as an Indian under the ICWA. Such an interpreta-
——————
preference. See §§1915(a), (c); In re Adoption of T. R. M., 525 N. E. 2d
298, 313 (Ind. 1988).
12To be sure, an employee of the Cherokee Nation testified that the
Cherokee Nation certifies families to be adoptive parents and that
there are approximately 100 such families “that are ready to take
children that want to be adopted.” Record 446. However, this testimony was only a general statement regarding the Cherokee Nation’s
practices; it did not demonstrate that a specific Indian family was
willing to adopt Baby Girl, let alone that such a family formally sought
such adoption in the South Carolina courts. See Reply Brief for Petitioners 13–14; see also Brief for Respondent Cherokee Nation 21–22. Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
tion would raise equal protection concerns, but the plain
text of §§1912(f ) and (d) makes clear that neither provision
applies in the present context. Nor do §1915(a)’s rebuttable adoption preferences apply when no alternative party
has formally sought to adopt the child. We therefore
reverse the judgment of the South Carolina Supreme
Court and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately
to explain why constitutional avoidance compels this outcome. Each party in this case has put forward a plausible
interpretation of the relevant sections of the Indian Child
Welfare Act (ICWA). However, the interpretations offered
by respondent Birth Father and the United States raise
significant constitutional problems as applied to this
case. Because the Court’s decision avoids those problems,
I concur in its interpretation.
I
This case arises out of a contested state-court adoption
proceeding. Adoption proceedings are adjudicated in state
family courts across the country every day, and “domestic
relations” is “an area that has long been regarded as a
virtually exclusive province of the States.” Sosna v. Iowa,
419 U. S. 393, 404 (1975). Indeed, “[t]he whole subject of
the domestic relations of husband and wife, parent and
child, belongs to the laws of the States and not to the laws
of the United States.” In re Burrus, 136 U. S. 586, 593–
594 (1890). Nevertheless, when Adoptive Couple filed a
petition in South Carolina Family Court to finalize their
adoption of Baby Girl, Birth Father, who had relinquished 2 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
his parental rights via a text message to Birth Mother,
claimed a federal right under the ICWA to block the adoption and to obtain custody.
The ICWA establishes “federal standards that govern
state-court child custody proceedings involving Indian
children.” Ante, at 2. The ICWA defines “Indian child” as
“any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” 25 U. S. C. §1903(4).
As relevant, the ICWA defines “child custody proceeding,”
§1903(1), to include “adoptive placement,” which means
“the permanent placement of an Indian child for adoption,
including any action resulting in a final decree of adoption,” §1903(1)(iv), and “termination of parental rights,”
which means “any action resulting in the termination of
the parent-child relationship,” §1903(1)(ii).
The ICWA restricts a state court’s ability to terminate
the parental rights of an Indian parent in two relevant
ways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights “in the absence of a
determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.” Section 1912(d) prohibits a
state court from terminating parental rights until the
court is satisfied “that active efforts have been made to
provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.” A third
provision creates specific placement preferences for the
adoption of Indian children, which favor placement with
Indians over other adoptive families. §1915(a). Operating
together, these requirements often lead to different outcomes than would result under state law. That is precisely Cite as: 570 U. S. ____ (2013) 3
THOMAS, J., concurring
what happened here. See ante, at 6 (“It is undisputed
that, had Baby Girl not been 3/256 Cherokee, Biological
Father would have had no right to object to her adoption
under South Carolina law”).
The ICWA recognizes States’ inherent “jurisdiction over
Indian child custody proceedings,” §1901(5), but asserts
that federal regulation is necessary because States “have
often failed to recognize the essential tribal relations of
Indian people and the cultural and social standards preailing in Indian communities and families,” ibid. However,
Congress may regulate areas of traditional state concern
only if the Constitution grants it such power. Admt. 10
(“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). The
threshold question, then, is whether the Constitution
grants Congress power to override state custody law
whenever an Indian is involved.
II
The ICWA asserts that the Indian Commerce Clause,
Art. I, §8, cl. 3, and “other constitutional authority” provides Congress with “plenary power over Indian affairs.”
§1901(1). The reference to “other constitutional authority”
is not illuminating, and I am aware of no other enumerated power that could even arguably support Congress’
intrusion into this area of traditional state authority. See
Fletcher, The Supreme Court and Federal Indian Policy,
85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal
constitutional law, the Indian Commerce Clause grants
Congress the only explicit constitutional authority to deal
with Indian tribes”); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev.
201, 210 (2007) (hereinafter Natelson) (evaluating, and
rejecting, other potential sources of authority supporting
congressional power over Indians). The assertion of ple-4 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
nary authority must, therefore, stand or fall on Congress’
power under the Indian Commerce Clause. Although this
Court has said that the “central function of the Indian
Commerce Clause is to provide Congress with plenary
power to legislate in the field of Indian affairs,” Cotton
Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989),
neither the text nor the original understanding of the
Clause supports Congress’ claim to such “plenary” power.
A
The Indian Commerce Clause gives Congress authority
“[t]o regulate Commerce . . . with the Indian tribes.”
Art. I, §8, cl. 3 (emphasis added). “At the time the original
Constitution was ratified, ‘commerce’ consisted of selling,
buying, and bartering, as well as transporting for these
purposes.” United States v. Lopez, 514 U. S. 549, 585
(1995) (THOMAS, J., concurring). See also 1 S. Johnson, A
Dictionary of the English Language 361 (4th rev. ed. 1773)
(reprint 1978) (defining commerce as “Intercourse; exchange of one thing for another; interchange of any thing;
trade; traffick”). “[W]hen Federalists and Anti-Federalists
discussed the Commerce Clause during the ratification
period, they often used trade (in its selling/bartering
sense) and commerce interchangeably.” Lopez, supra, at
586 (THOMAS, J., concurring). The term “commerce” did
not include economic activity such as “manufacturing and
agriculture,” ibid., let alone noneconomic activity such as
adoption of children.
Furthermore, the term “commerce with Indian tribes”
was invariably used during the time of the founding to
mean “‘trade with Indians.’” See, e.g., Natelson, 215–216,
and n. 97 (citing 18th-century sources); Report of Committee on Indian Affairs (Feb 20, 1787), in 32 Journals of the
Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed.
1936) (hereinafter J. Cont’l Cong.) (using the phrase
“commerce with the Indians” to mean trade with the Cite as: 570 U. S. ____ (2013) 5
THOMAS, J., concurring
Indians). And regulation of Indian commerce generally
referred to legal structures governing “the conduct of
the merchants engaged in the Indian trade, the nature of the
goods they sold, the prices charged, and similar matters.”
Natelson 216, and n. 99.
The Indian Commerce Clause contains an additional
textual limitation relevant to this case: Congress is given
the power to regulate Commerce “with the Indian tribes.”
The Clause does not give Congress the power to regulate
commerce with all Indian persons any more than the
Foreign Commerce Clause gives Congress the power to
regulate commerce with all foreign nationals traveling
within the United States. A straightforward reading of
the text, thus, confirms that Congress may only regulate
commercial interactions—“commerce”—taking place with
established Indian communities—“tribes.” That power is
far from “plenary.”
B
Congress’ assertion of “plenary power” over Indian
affairs is also inconsistent with the history of the Indian
Commerce Clause. At the time of the founding, the Clause
was understood to reserve to the States general police
powers with respect to Indians who were citizens of the
several States. The Clause instead conferred on Congress
the much narrower power to regulate trade with Indian
tribes—that is, Indians who had not been incorporated
into the body-politic of any State.
1
Before the Revolution, most Colonies adopted their own
regulations governing Indian trade. See Natelson 219,
and n. 121 (citing colonial laws). Such regulations were
necessary because colonial traders all too often abused
their Indian trading partners, through fraud, exorbitant
prices, extortion, and physical invasion of Indian territory, 6 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
among other things. See 1 F. Prucha, The Great Father
18–20 (1984) (hereinafter Prucha); Natelson 220, and
n. 122. These abuses sometimes provoked violent Indian
retaliation. See Prucha 20. To mitigate these conflicts,
most Colonies extensively regulated traders engaged in
commerce with Indian tribes. See e.g., Ordinance to Regulate Indian Affairs, Statutes of South Carolina (Aug. 31,
1751), in 16 Early American Indian Documents: Treaties
and Laws, 1607–1789, pp. 331–334 (A. Vaughan and
D. Rosen eds. 1998).1 Over time, commercial regulation at
the colonial level proved largely ineffective, in part because “[t]here was no uniformity among the colonies, no
two sets of like regulations.” Prucha 21.
Recognizing the need for uniform regulation of trade
with the Indians, Benjamin Franklin proposed his own
“articles of confederation” to the Continental Congress on
July 21, 1775, which reflected his view that central control
over Indian affairs should predominate over local control.
2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s
proposal was not enacted, but in November 1775, Congress empowered a committee to draft regulations for
the Indian trade. 3 id., at 364, 366. On July 12, 1776, the
committee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin’s
proposals. 5 id., at 545, 546, n. 1. The draft prohibited
States from waging offensive war against the Indians
without congressional authorization and granted Congress
——————
1
South Carolina, for example, required traders to be licensed, to be of
good moral character, and to post a bond. Ordinance to Regulate
Indian Affairs, in 16 Early American Indian Documents, at 331–334. A
potential applicant’s name was posted publicly before issuing the
license, so anyone with objections had an opportunity to raise them.
Id., at 332. Restrictions were placed on employing agents, id., at 333–
334, and names of potential agents had to be disclosed. Id., at 333.
Traders who violated these rules were subject to substantial penalties.
Id., at 331, 334. Cite as: 570 U. S. ____ (2013) 7
THOMAS, J., concurring
the exclusive power to acquire land from the Indians outside state boundaries, once those boundaries had been established. Id., at 549. This version also gave Congress
“the sole and exclusive Right and Power of . . . Regulating
the Trade, and managing all Affairs with the Indians.” Id.
at 550.
On August 20, 1776, the Committee of the Whole presented to Congress a revised draft, which provided Congress with “the sole and exclusive right and power of . . .
regulating the trade, and managing all affairs with the
Indians.” Id., at 672, 681–682. Some delegates feared
that the Articles gave Congress excessive power to interfere with States’ jurisdiction over affairs with Indians
residing within state boundaries. After further deliberation, the final result was a clause that included a broad
grant of congressional authority with two significant
exceptions: “The United States in Congress assembled
shall also have the sole and exclusive right and power of
. . . regulating the trade and managing all affairs with the
Indians, not members of any of the States, provided that
the legislative right of any State within its own limits be
not infringed or violated.” Articles of Confederation, Art.
IX, cl. 4. As a result, Congress retained exclusive jurisdiction over Indian affairs outside the borders of the States;
the States retained exclusive jurisdiction over relations
with Member-Indians;2
and Congress and the States “exercise[d] concurrent jurisdiction over transactions with
tribal Indians within state boundaries, but congressional
decisions would have to be in compliance with local law.”
Natelson 230. The drafting of the Articles of Confedera-
——————
2
Although Indians were generally considered “members” of a State if
they paid taxes or were citizens, see Natelson 230, the precise definition of the term was “not yet settled” at the time of the founding
and was “a question of frequent perplexity and contention in the federal councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J.
Madison). 8 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
tion reveals the delegates’ concern with protecting the
power of the States to regulate Indian persons who were
politically incorporated into the States. This concern
for state power reemerged during the drafting of the
Constitution.
2
The drafting history of the Constitutional Convention
also supports a limited construction of the Indian Commerce Clause. On July 24, 1787, the convention elected
a drafting committee—the Committee of Detail—and
charged it to “report a Constitution conformable to the Resolutions passed by the Convention.” 2 Records of the
Federal Convention of 1787, p.106 (M. Farrand rev. 1966)
(J. Madison). During the Committee’s deliberations, John
Rutledge, the chairman, suggested incorporating an Indian affairs power into the Constitution. Id., at 137, n. 6,
143. The first draft reported back to the convention,
however, provided Congress with authority “[t]o regulate
commerce with foreign nations, and among the several
States,” id., at 181 (Madison) (Aug. 6, 1787), but did not
include any specific Indian affairs clause. On August 18,
James Madison proposed that the Federal Government be
granted several additional powers, including the power
“[t]o regulate affairs with the Indians as well within as
without the limits of the U. States.” Id., at 324 (J. Madison) (emphasis added). On August 22, Rutledge delivered
the Committee of Detail’s second report, which modified
Madison’s proposed clause. The Committee proposed to
add to Congress’ power “[t]o regulate commerce with
foreign nations, and among the several States” the words,
“and with Indians, within the Limits of any State, not
subject to the laws thereof.” Id., at 366–367 (Journal).
The Committee’s version, which echoed the Articles of
Confederation, was far narrower than Madison’s proposal.
On August 31, the revised draft was submitted to a Com-Cite as: 570 U. S. ____ (2013) 9
THOMAS, J., concurring
mittee of Eleven for further action. Id., at 473 (Journal),
481 (J. Madison). That Committee recommended adding
to the Commerce Clause the phrase, “and with the Indian
tribes,” id., at 493, which the Convention ultimately
adopted.
It is, thus, clear that the Framers of the Constitution
were alert to the difference between the power to regulate
trade with the Indians and the power to regulate all Indian affairs. By limiting Congress’ power to the former, the
Framers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation. See Prakash, Against Tribal Fungibility, 89
Cornell L. Rev. 1069, 1090 (2004).
During the ratification debates, opposition to the Indian
Commerce Clause was nearly nonexistent. See Natelson
248 (noting that Robert Yates, a New York Anti-Federalist
was “almost the only writer who objected to any part [of]
of the Commerce Clause—a clear indication that its scope
was understood to be fairly narrow” (footnote omitted)).
Given the Anti-Federalists’ vehement opposition to the
Constitution’s other grants of power to the Federal Government, this silence is revealing. The ratifiers almost
certainly understood the Clause to confer a relatively
modest power on Congress—namely, the power to regulate
trade with Indian tribes living beyond state borders. And
this feature of the Constitution was welcomed by Federalists and Anti-Federalists alike due to the considerable
interest in expanding trade with such Indian tribes. See,
e.g., The Federalist No. 42, at 265 (J. Madison) (praising
the Constitution for removing the obstacles that had
existed under the Articles of Confederation to federal
control over “trade with Indians” (emphasis added)); 3 J.
Elliot, The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 580 (2d ed. 1863)
(Adam Stephens, at the Virginia ratifying convention,
June 23, 1788, describing the Indian tribes residing near 10 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
the Mississippi and “the variety of articles which might be
obtained to advantage by trading with these people”); The
Federalist No. 24, at 158 (A. Hamilton) (arguing that
frontier garrisons would “be keys to the trade with the
Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24,
1788, in 15 The Documentary History of the Ratification of
the Constitution 462, 465 (J. Kaminski & G. Saladino eds.
2012) (conceding that there must be a standing army for
some purposes, including “trade with Indians”). There is
little evidence that the ratifiers of the Constitution understood the Indian Commerce Clause to confer anything
resembling plenary power over Indian affairs. See Natelson 247–250.
III
In light of the original understanding of the Indian
Commerce Clause, the constitutional problems that would
be created by application of the ICWA here are evident.
First, the statute deals with “child custody proceedings,”
§1903(1), not “commerce.” It was enacted in response to
concerns that “an alarmingly high percentage of Indian
families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public
and private agencies.” §1901(4). The perceived problem
was that many Indian children were “placed in non-Indian
foster and adoptive homes and institutions.” Ibid. This
problem, however, had nothing to do with commerce.
Second, the portions of the ICWA at issue here do not
regulate Indian tribes as tribes. Sections 1912(d) and (f),
and §1915(a) apply to all child custody proceedings involving an Indian child, regardless of whether an Indian tribe
is involved. This case thus does not directly implicate
Congress’ power to “legislate in respect to Indian tribes.”
United States v. Lara, 541 U. S. 193, 200 (2004) (emphasis
added). Baby Girl was never domiciled on an Indian
Reservation, and the Cherokee Nation had no jurisdiction Cite as: 570 U. S. ____ (2013) 11
THOMAS, J., concurring
over her. Cf. Mississippi Band of Choctaw Indians v.
Holyfield, 490 U. S. 30, 53–54 (1989) (holding that the
Indian Tribe had exclusive jurisdiction over child custody
proceedings, even though the children were born off the
reservation, because the children were “domiciled” on the
reservation for purposes of the ICWA). Although Birth
Father is a registered member of The Cherokee Nation, he
did not live on a reservation either. He was, thus, subject
to the laws of the State in which he resided (Oklahoma)
and of the State where his daughter resided during the
custody proceedings (South Carolina). Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of his
status as an Indian.3
Because adoption proceedings like this one involve
neither “commerce” nor “Indian tribes,” there is simply no
constitutional basis for Congress’ assertion of authority
over such proceedings. Also, the notion that Congress can
direct state courts to apply different rules of evidence and
procedure merely because a person of Indian descent is
involved raises absurd possibilities. Such plenary power
would allow Congress to dictate specific rules of criminal
procedure for state-court prosecutions against Indian
defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes
involve Indians. But the Constitution does not grant
Congress power to override state law whenever that law
——————
3
Petitioners and the guardian ad litem contend that applying the
ICWA to child custody proceedings on the basis of race implicates equal
protection concerns. See Brief for Petitioners 45 (arguing that the
statute would be unconstitutional “if unwed fathers with no preexisting
substantive parental rights receive a statutory preference based solely
on the Indian child’s race”); Brief for Respondent Guardian Ad Litem
48–49 (same). I need not address this argument because I am satisfied
that Congress lacks authority to regulate the child custody proceedings
in this case. 12 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
happens to be applied to Indians. Accordingly, application
of the ICWA to these child custody proceedings would be
unconstitutional.
* * *
Because the Court’s plausible interpretation of the
relevant sections of the ICWA avoids these constitutional
problems, I concur. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE BREYER, concurring.
I join the Court’s opinion with three observations. First,
the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with
his child in the first few months of her life. That category
of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range
of others in between. Most of those who fall within that
category seem to fall outside the scope of the language of
25 U. S. C. §§1912(d) and (f ). Thus, while I agree that the
better reading of the statute is, as the majority concludes,
to exclude most of those fathers, ante, at 8, 12, I also understand the risk that, from a policy perspective, the
Court’s interpretation could prove to exclude too many.
See post, at 13, 22–23 (SOTOMAYOR, J., dissenting).
Second, we should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid “all of his child
support obligations.” See post, at 13. Neither does it involve
special circumstances such as a father who was deceived
about the existence of the child or a father who was prevented from supporting his child. See post, at 13 n. 8. The
Court need not, and in my view does not, now decide
whether or how §§1912(d) and (f ) apply where those cir-2 ADOPTIVE COUPLE v. BABY GIRL
BREYER, J., concurring
cumstances are present.
Third, other statutory provisions not now before us may
nonetheless prove relevant in cases of this kind. Section
1915(a) grants an adoptive “preference” to “(1) a member
of the child’s extended family; (2) other members of the
Indian child’s tribe; or (3) other Indian families . . . . in the
absence of good cause to the contrary.” Further, §1915(c)
allows the “Indian child’s tribe” to “establish a different
order of preference by resolution.” Could these provisions
allow an absentee father to re-enter the special statutory
order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but
do not here try to answer, the question. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE SCALIA, dissenting.
I join JUSTICE SOTOMAYOR’s dissent except as to one
detail. I reject the conclusion that the Court draws from
the words “continued custody” in 25 U. S. C §1912(f) not
because “literalness may strangle meaning,” see post, at
11, but because there is no reason that “continued” must
refer to custody in the past rather than custody in the
future. I read the provision as requiring the court to
satisfy itself (beyond a reasonable doubt) not merely that
initial or temporary custody is not “likely to result in
serious emotional or physical damage to the child,” but
that continued custody is not likely to do so. See Webster’s New International Dictionary 577 (2d ed. 1950)
(defining “continued” as “[p]rotracted in time or space, esp.
without interruption; constant”). For the reasons set forth
in JUSTICE SOTOMAYOR’s dissent, that connotation is much
more in accord with the rest of the statute.
While I am at it, I will add one thought. The Court’s
opinion, it seems to me, needlessly demeans the rights of
parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a
child into the world to raise that child. We do not inquire
whether leaving a child with his parents is “in the best
interest of the child.” It sometimes is not; he would be 2 ADOPTIVE COUPLE v. BABY GIRL
SCALIA, J., dissenting
better off raised by someone else. But parents have their
rights, no less than children do. This father wants to raise
his daughter, and the statute amply protects his right to
do so. There is no reason in law or policy to dilute that
protection. _________________
_________________
Cite as: 570 U. S. ____ (2013) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 12–399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
SOUTH CAROLINA
[June 25, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, and with whom JUSTICE SCALIA
joins in part, dissenting.
A casual reader of the Court’s opinion could be forgiven
for thinking this an easy case, one in which the text of the
applicable statute clearly points the way to the only sen-
sible result. In truth, however, the path from the text of
the Indian Child Welfare Act of 1978 (ICWA) to the result the
Court reaches is anything but clear, and its result any
thing but right.
The reader’s first clue that the majority’s supposedly
straightforward reasoning is flawed is that not all Mem
bers who adopt its interpretation believe it is compelled by
the text of the statute, see ante, at 1 (THOMAS, J., concur
ring); nor are they all willing to accept the consequences
it will necessarily have beyond the specific factual sce-
nario confronted here, see ante, at 1 (BREYER, J., concurring).
The second clue is that the majority begins its analysis by
plucking out of context a single phrase from the last clause
of the last subsection of the relevant provision, and then
builds its entire argument upon it. That is not how we
ordinarily read statutes. The third clue is that the major-
ity openly professes its aversion to Congress’ explicitly
stated purpose in enacting the statute. The majority ex- 2 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
presses concern that reading the Act to mean what it
says will make it more difficult to place Indian children in
adoptive homes, see ante, at 14, 16, but the Congress that
enacted the statute announced its intent to stop “an
alarmingly high percentage of Indian families [from being]
broken up” by, among other things, a trend of “plac[ing]
[Indian children] in non-Indian . . . adoptive homes.” 25
U. S. C. §1901(4). Policy disagreement with Congress’ judg-
ment is not a valid reason for this Court to distort the pro
visions of the Act. Unlike the majority, I cannot adopt
a reading of ICWA that is contrary to both its text and its
stated purpose. I respectfully dissent.
I
Beginning its reading with the last clause of §1912(f ),
the majority concludes that a single phrase appearing
there—“continued custody”—means that the entirety of
the subsection is inapplicable to any parent, however
committed, who has not previously had physical or legal
custody of his child. Working back to front, the majority
then concludes that §1912(d), tainted by its association
with §1912(f ), is also inapplicable; in the majority’s view,
a family bond that does not take custodial form is not a
family bond worth preserving from “breakup.” Because
there are apparently no limits on the contaminating power
of this single phrase, the majority does not stop there.
Under its reading, §1903(9), which makes biological fa
thers “parent[s]” under this federal statute (and where,
again, the phrase “continued custody” does not appear),
has substantive force only when a birth father has physi
cal or state-recognized legal custody of his daughter.
When it excludes noncustodial biological fathers from
the Act’s substantive protections, this textually backward
reading misapprehends ICWA’s structure and scope.
Moreover, notwithstanding the majority’s focus on the per-
ceived parental shortcomings of Birth Father, its reaCite as: 570 U. S. ____ (2013) 3
SOTOMAYOR, J., dissenting
soning necessarily extends to all Indian parents who have
never had custody of their children, no matter how fully
those parents have embraced the financial and emotional
responsibilities of parenting. The majority thereby trans
forms a statute that was intended to provide uniform
federal standards for child custody proceedings involving
Indian children and their biological parents into an illogi
cal piecemeal scheme.
A
Better to start at the beginning and consider the opera
tion of the statute as a whole. Cf. ante, at 13 (“[S]tatutory
construction ‘is a holistic endeavor[,]’ and . . . ‘[a] provision
that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme’” (quoting United
Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates,
Ltd., 484 U. S. 365, 371 (1988))).
ICWA commences with express findings. Congress rec
ognized that “there is no resource that is more vital to
the continued existence and integrity of Indian tribes than
their children,” 25 U. S. C. §1901(3), and it found that this
resource was threatened. State authorities insufficiently
sensitive to “the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian
communities and families” were breaking up Indian fami
lies and moving Indian children to non-Indian homes and
institutions. See §§1901(4)–(5). As §1901(4) makes clear,
and as this Court recognized in Mississippi Band of
Choctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989),
adoptive placements of Indian children with non-Indian
families contributed significantly to the overall problem. See
§1901(4) (finding that “an alarmingly high percentage of
[Indian] children are placed in non-Indian . . . adoptive
homes”).
Consistent with these findings, Congress declared its
purpose “to protect the best interests of Indian children 4 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal
standards” applicable to child custody proceedings involv
ing Indian children. §1902. Section 1903 then goes on to
establish the reach of these protections through its defi-
nitional provisions. For present purposes, two of these
definitions are crucial to understanding the statute’s full
scope.
First, ICWA defines the term “parent” broadly to mean
“any biological parent . . . of an Indian child or any In-
dian person who has lawfully adopted an Indian child.”
§1903(9). It is undisputed that Baby Girl is an “Indian
child” within the meaning of the statute, see §1903(4);
ante, at 2, n. 1, and Birth Father consequently qualifies
as a “parent” under the Act. The statutory definition of
parent “does not include the unwed father where paternity
has not been acknowledged or established,” §1903(9), but
Birth Father’s biological paternity has never been ques
tioned by any party and was confirmed by a DNA test
during the state court proceedings, App. to Pet. for Cert.
109a (Sealed).
Petitioners and Baby Girl’s guardian ad litem devote
many pages of briefing to arguing that the term “parent”
should be defined with reference to the law of the State in
which an ICWA child custody proceeding takes place. See
Brief for Petitioners 19–29; Brief for Respondent Guardian
Ad Litem 32–41. These arguments, however, are incon
sistent with our recognition in Holyfield that Congress
intended the critical terms of the statute to have uniform
federal definitions. See 490 U. S., at 44–45. It is therefore
unsurprising, although far from unimportant, that the
majority assumes for the purposes of its analysis that
Birth Father is an ICWA “parent.” See ante, at 7.
Second, the Act’s comprehensive definition of “child
custody proceeding” includes not only “‘adoptive place
ment[s],’” “‘preadoptive placement[s],’” and “‘foster care Cite as: 570 U. S. ____ (2013) 5
SOTOMAYOR, J., dissenting
placement[s],’” but also “‘termination of parental rights’”
proceedings. §1903(1). This last category encompasses
“any action resulting in the termination of the parentchild relationship,” §1903(1)(ii) (emphasis added). So far,
then, it is clear that Birth Father has a federally recog
nized status as Baby Girl’s “parent” and that his “parent
child relationship” with her is subject to the protections of
the Act.
These protections are numerous. Had Birth Father
petitioned to remove this proceeding to tribal court, for
example, the state court would have been obligated to
transfer it absent an objection from Birth Mother or good
cause to the contrary. See §1911(b). Any voluntary con
sent Birth Father gave to Baby Girl’s adoption would have
been invalid unless written and executed before a judge
and would have been revocable up to the time a final
decree of adoption was entered.1
See §§1913(a), (c). And
§1912, the center of the dispute here, sets forth procedural
and substantive standards applicable in “involuntary
proceeding[s] in a State court,” including foster care
placements of Indian children and termination of paren
tal rights proceedings. §1912(a). I consider §1912’s provi
sions in order.
Section 1912(a) requires that any party seeking “termi
nation of parental rights t[o] an Indian child” provide
notice to both the child’s “parent or Indian custodian”
and the child’s tribe “of the pending proceedings and of
their right of intervention.” Section 1912(b) mandates
that counsel be provided for an indigent “parent or In-
dian custodian” in any “termination proceeding.” Section
——————
1
For this reason, the South Carolina Supreme Court held that Birth
Father did not give valid consent to Baby Girl’s adoption when, four
months after her birth, he signed papers stating that he accepted
service and was not contesting the adoption. See 398 S. C. 625, 645–
646, 731 S. E. 2d 550, 561 (2012). See also ante, at 5. Petitioners do
not challenge this aspect of the South Carolina court’s holding. 6 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
1912(c) also gives all “part[ies]” to a termination proceed
ing—which, thanks to §§1912(a) and (b), will always in
clude a biological father if he desires to be present—the
right to inspect all material “reports or other documents
filed with the court.” By providing notice, counsel, and
access to relevant documents, the statute ensures a biolog
ical father’s meaningful participation in an adoption pro
ceeding where the termination of his parental rights is at
issue.
These protections are consonant with the principle,
recognized in our cases, that the biological bond between
parent and child is meaningful. “[A] natural parent’s
desire for and right to the companionship, care, custody,
and management of his or her children,” we have ex
plained, “is an interest far more precious than any prop-
erty right.” Santosky v. Kramer, 455 U. S. 745, 758–759
(1982) (internal quotation marks omitted). See also infra,
at 19-20. Although the Constitution does not compel the
protection of a biological father’s parent-child relationship
until he has taken steps to cultivate it, this Court has
nevertheless recognized that “the biological connection . . .
offers the natural father an opportunity that no other
male possesses to develop a relationship with his off
spring.” Lehr v. Robertson, 463 U. S. 248, 262 (1983).
Federal recognition of a parent-child relationship between
a birth father and his child is consistent with ICWA’s
purpose of providing greater protection for the familial
bonds between Indian parents and their children than
state law may afford.
The majority does not and cannot reasonably dispute
that ICWA grants biological fathers, as “parent[s],” the
right to be present at a termination of parental rights
proceeding and to have their views and claims heard
there.2
But the majority gives with one hand and takes
——————
2
Petitioners concede that, assuming Birth Father is a “parent” under Cite as: 570 U. S. ____ (2013) 7
SOTOMAYOR, J., dissenting
away with the other. Having assumed a uniform federal
definition of “parent” that confers certain procedural
rights, the majority then illogically concludes that ICWA’s
substantive protections are available only to a subset of
“parent[s]”: those who have previously had physical or
state-recognized legal custody of his or her child. The
statute does not support this departure.
Section 1912(d) provides that
“Any party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian child
under State law shall satisfy the court that active
efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts
have proved unsuccessful.” (Emphasis added.)
In other words, subsection (d) requires that an attempt
be made to cure familial deficiencies before the drastic
measures of foster care placement or termination of paren
tal rights can be taken.
The majority would hold that the use of the phrase
“breakup of the Indian family” in this subsection means
that it does not apply where a birth father has not previ
ously had custody of his child. Ante, at 12. But there is
nothing about this capacious phrase that licenses such a
narrowing construction. As the majority notes, “breakup”
means “‘[t]he discontinuance of a relationship.’” Ante, at
12 (quoting American Heritage Dictionary 235 (3d ed.
1992)). So far, all of §1912’s provisions expressly apply in
actions aimed at terminating the “parent-child relation
ship” that exists between a birth father and his child, and
they extend to it meaningful protections. As a logical
matter, that relationship is fully capable of being pre
——————
ICWA, the notice and counsel provisions of 25 U. S. C. §§1912(a) and (b)
apply to him. See Tr. of Oral Arg. 13. 8 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
served via remedial services and rehabilitation programs.
See infra, at 15–17. Nothing in the text of subsection (d)
indicates that this blood relationship should be excluded
from the category of familial “relationships” that the pro-
vision aims to save from “discontinuance.”
The majority, reaching the contrary conclusion, asserts
baldly that “when an Indian parent abandons an Indian
child prior to birth and that child has never been in the
Indian parent’s legal or physical custody, there is no ‘rela
tionship’ that would be ‘discontinu[ed]’ . . . by the termina
tion of the Indian parent’s rights.” Ante, at 12. Says who?
Certainly not the statute. Section 1903 recognizes Birth
Father as Baby Girl’s “parent,” and, in conjunction with
ICWA’s other provisions, it further establishes that their
“parent-child relationship” is protected under federal law.
In the face of these broad definitions, the majority has no
warrant to substitute its own policy views for Congress’ by
saying that “no ‘relationship’” exists between Birth Father
and Baby Girl simply because, based on the hotly con-
tested facts of this case, it views their family bond as in-
sufficiently substantial to deserve protection.3 Ibid.
The majority states that its “interpretation of §1912(d)
is . . . confirmed by the provision’s placement next to
——————
3
The majority’s discussion of §1912(d) repeatedly references Birth
Father’s purported “abandon[ment]” of Baby Girl, ante, at 12, 13, n. 8,
14, and it contends that its holding with regard to this provision is
limited to such circumstances, see ante, at 13, n. 8; see also ante, at 1
(BREYER, J., concurring). While I would welcome any limitations on the
majority’s holding given that it is contrary to the language and purpose
of the statute, the majority never explains either the textual basis or
the precise scope of its “abandon[ment]” limitation. I expect that the
majority’s inexact use of the term “abandon[ment]” will sow confusion,
because it is a commonly used term of art in state family law that does
not have a uniform meaning from State to State. See generally 1 J.
Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussing
various state-law standards for establishing parental abandonment of
a child). Cite as: 570 U. S. ____ (2013) 9
SOTOMAYOR, J., dissenting
§1912(e) and §1912(f ),” both of which use the phrase “‘con
tinued custody.’” Ante, at 13. This is the only aspect of
the majority’s argument regarding §1912(d) that is based
on ICWA’s actual text rather than layers of assertion su-
perimposed on the text; but the conclusion the majority
draws from the juxtaposition of these provisions is exactly
backward.
Section 1912(f ) is paired with §1912(e), and as the ma
jority notes, both come on the heels of the requirement of
rehabilitative efforts just reviewed. The language of the
two provisions is nearly identical; subsection (e) is headed
“Foster care placement orders,” and subsection (f ), the
relevant provision here, is headed “Parental rights termi
nation orders.” Subsection (f ) reads in its entirety,
“No termination of parental rights may be ordered
in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, in
cluding testimony of qualified expert witnesses, that
the continued custody of the child by the parent or In
dian custodian is likely to result in serious emotional
or physical damage to the child.” §1912(f ).4
The immediate inference to be drawn from the statute’s
structure is that subsections (e) and (f ) work in tandem
with the rehabilitative efforts required by (d). Under
subsection (d), state authorities must attempt to provide
“remedial services and rehabilitative programs” aimed at
avoiding foster care placement or termination of parental
rights; (e) and (f ), in turn, bar state authorities from order
——————
4
The full text of subsection (e) is as follows:
“No foster care placement may be ordered in such proceeding in
the absence of a determination, supported by clear and convincing evi-
dence, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.”
§1912(e). 10 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
ing foster care or terminating parental rights until these
curative efforts have failed and it is established that the
child will suffer “serious emotional or physical damage” if
his or her familial situation is not altered. Nothing in
subsections (a) through (d) suggests a limitation on the
types of parental relationships that are protected by any of
the provisions of §1912, and there is nothing in the struc
ture of §1912 that would lead a reader to expect subsection
(e) or (f ) to introduce any such qualification. Indeed, both
subsections, in their opening lines, refer back to the prior
provisions of §1912 with the phrase “in such proceeding.”
This language indicates, quite logically, that in actions
where subsections (a), (b), (c), and (d) apply, (e) and (f )
apply too.5
All this, and still the most telling textual evidence is yet
to come: The text of the subsection begins by announcing,
“[n]o termination of parental rights may be ordered” un
less the specified evidentiary showing is made. To repeat,
a “termination of parental rights” includes “any action
resulting in the termination of the parent-child relation
ship,” 25 U. S. C. §1903(1)(ii) (emphasis added), includ-
ing the relationship Birth Father, as an ICWA “parent,”
has with Baby Girl. The majority’s reading disregards
the Act’s sweeping definition of “termination of parental
rights,” which is not limited to terminations of custodial
relationships.
The entire foundation of the majority’s argument that
——————
5
For these reasons, I reject the argument advanced by the United
States that subsection (d) applies in the circumstances of this case but
subsection (f ) does not. See Brief for United States as Amicus Curiae
24–26. The United States’ position is contrary to the interrelated
nature of §§1912(d), (e), and (f ). Under the reading that the United
States proposes, in a case such as this one the curative provision would
stand alone; ICWA would provide no evidentiary or substantive stand
ards by which to measure whether foster care placement or termination
of parental rights could be ordered in the event that rehabilitative
efforts did not succeed. Such a scheme would be oddly incomplete. Cite as: 570 U. S. ____ (2013) 11
SOTOMAYOR, J., dissenting
subsection (f ) does not apply is the lonely phrase “contin
ued custody.” It simply cannot bear the interpretive
weight the majority would place on it.
Because a primary dictionary definition of “continued” is
“‘carried on or kept up without cessation,’” ante, at 8
(brackets omitted), the majority concludes that §1912(f )
“does not apply in cases where the Indian parent never
had custody of the Indian child,” ante, at 8. Emphasizing
that Birth Father never had physical custody or, under
state law, legal custody of Baby Girl, the majority finds
the statute inapplicable here. Ante, at 10–11. But “liter
alness may strangle meaning.” Utah Junk Co. v. Porter,
328 U. S. 39, 44 (1946). See also Robinson v. Shell Oil Co.,
519 U. S. 337, 341–345 (1997) (noting that a term that
may “[a]t first blush” seem unambiguous can prove other
wise when examined in the context of the statute as a
whole).6
In light of the structure of §1912, which indicates
that subsection (f ) is applicable to the same actions to
which subsections (a) through (d) are applicable; the use of
the phrase “such proceeding[s]” at the start of subsection
(f ) to reinforce this structural inference; and finally, the
provision’s explicit statement that it applies to “termina
tion of parental rights” proceedings, the necessary conclu
sion is that the word “custody” does not strictly denote a
state-recognized custodial relationship. If one refers back
to the Act’s definitional section, this conclusion is not
surprising. Section 1903(1) includes “any action resulting
in the termination of the parent-child relationship” within
the meaning of “child custody proceeding,” thereby belying
any congressional intent to give the term “custody” a
narrow and exclusive definition throughout the statute.
——————
6
The majority’s interpretation is unpersuasive even if one focuses
exclusively on the phrase “continued custody” because, as JUSTICE
SCALIA explains, ante, at 1 (dissenting opinion), nothing about the
adjective “continued” mandates the retrospective, rather than prospec
tive, application of §1912(f )’s standard. 12 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
In keeping with §1903(1) and the structure and lan
guage of §1912 overall, the phrase “continued custody” is
most sensibly read to refer generally to the continuation of
the parent-child relationship that an ICWA “parent” has
with his or her child. A court applying §1912(f ) where the
parent does not have pre-existing custody should, as Birth
Father argues, determine whether the party seeking ter
mination of parental rights has established that the con
tinuation of the parent-child relationship will result in
“serious emotional or physical damage to the child.”7
The majority is willing to assume, for the sake of argu
ment, that Birth Father is a “parent” within the meaning
of ICWA. But the majority fails to account for all that
follows from that assumption. The majority repeatedly
passes over the term “termination of parental rights” that,
as defined by §1903, clearly encompasses an action aimed
at severing Birth Father’s “parent-child relationship” with
Baby Girl. The majority chooses instead to focus on
phrases not statutorily defined that it then uses to exclude
Birth Father from the benefits of his parental status.
When one must disregard a statute’s use of terms that
have been explicitly defined by Congress, that should be a
signal that one is distorting, rather than faithfully read
ing, the law in question.
B
The majority also does not acknowledge the full impli
——————
7
The majority overlooks Birth Father’s principal arguments when it
dismisses his reading of §1912(f ) as “nonsensical.” Ante, at 8. He does
argue that if one accepts petitioners’ view that it is impossible to make
a determination of likely harm when a parent lacks custody, then the
consequence would be that “ ‘[n]o termination of parental rights may be
ordered.’ ” Brief for Respondent Birth Father 39 (quoting §1912(f )).
But Birth Father’s primary arguments assume that it is indeed possible
to make a determination of likely harm in the circumstances of this
case, and that parental rights can be terminated if §1912(f ) is met. See
id., at 40–42. Cite as: 570 U. S. ____ (2013) 13
SOTOMAYOR, J., dissenting
cations of its assumption that there are some ICWA
“parent[s]” to whom §§1912(d) and (f ) do not apply. Its dis
cussion focuses on Birth Father’s particular actions, but
nothing in the majority’s reasoning limits its manufac
tured class of semiprotected ICWA parents to biological
fathers who failed to support their child’s mother during
pregnancy. Its logic would apply equally to noncustodial
fathers who have actively participated in their child’s
upbringing.
Consider an Indian father who, though he has never had
custody of his biological child, visits her and pays all of his
child support obligations.8
Suppose that, due to deficien
——————
8
The majority attempts to minimize the consequences of its holding
by asserting that the parent-child relationships of noncustodial fathers
with visitation rights will be at stake in an ICWA proceeding in only
“a relatively small class of cases.” Ante, at 13, n. 8. But it offers no
support for this assertion, beyond speculating that there will not be
many fathers affected by its interpretation of §1912(d) because it is
qualified by an “abandon[ment]” limitation. Ibid. Tellingly, the majority has nothing to say about §1912(f ), despite the fact that its interpre
tation of that provision is not limited in a similar way. In any event,
this example by no means exhausts the class of semiprotected ICWA
parents that the majority’s opinion creates. It also includes, for exam
ple, biological fathers who have not yet established a relationship with
their child because the child’s mother never informed them of the
pregnancy, see, e.g., In re Termination of Parental Rights of Biological
Parents of Baby Boy W., 1999 OK 74, 988 P. 2d 1270, told them falsely
that the pregnancy ended in miscarriage or termination, see, e.g., A
Child’s Hope, LLC v. Doe, 178 N. C. App. 96, 630 S. E. 2d 673 (2006), or
otherwise obstructed the father’s involvement in the child’s life, see,
e.g., In re Baby Girl W., 728 S. W. 2d 545 (Mo. App. 1987) (birth mother
moved and did not inform father of her whereabouts); In re Petition of
Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancy
expenses until birth mother cut off contact with him and told him that
their child had died shortly after birth). And it includes biological
fathers who did not contribute to pregnancy expenses because they
were unable to do so, whether because the father lacked sufficient
means, the expenses were covered by a third party, or the birth mother
did not pass on the relevant bills. See, e.g., In re Adoption of B. V.,
2001 UT App 290, ¶¶ 24–31, 33 P. 3d 1083, 1087–1088. 14 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
cies in the care the child received from her custodial
parent, the State placed the child with a foster family
and proposed her ultimate adoption by them. Clearly,
the father’s parental rights would have to be terminated
before the adoption could go forward.9
On the majority’s
view, notwithstanding the fact that this father would be
a “parent” under ICWA, he would not receive the benefit
of either §1912(d) or §1912(f ). Presumably the court con
sidering the adoption petition would have to apply some
standard to determine whether termination of his paren
tal rights was appropriate. But from whence would that
standard come?
Not from the statute Congress drafted, according to the
majority. The majority suggests that it might come from
state law. See ante, at 13, n. 8. But it is incongruous to
suppose that Congress intended a patchwork of federal
and state law to apply in termination of parental rights
proceedings. Congress enacted a statute aimed at protect
——————
The majority expresses the concern that my reading of the statute
would produce “far-reaching consequences,” because “even a sperm
donor” would be entitled to ICWA’s protections. Ante, at 13–14, n. 8. If
there are any examples of women who go to the trouble and expense of
artificial insemination and then carry the child to term, only to put the
child up for adoption or be found so unfit as mothers that state authori
ties attempt an involuntary adoptive placement—thereby necessitating
termination of the parental rights of the sperm donor father—the ma
jority does not cite them. As between a possibly overinclusive in
terpretation of the statute that covers this unlikely class of cases, and
the majority’s underinclusive interpretation that has the very real
consequence of denying ICWA’s protections to all noncustodial biologi
cal fathers, it is surely the majority’s reading that is contrary to ICWA’s
design.
9
With a few exceptions not relevant here, before a final decree of
adoption may be entered, one of two things must happen: “the biological
parents must either voluntarily relinquish their parental rights or have
their rights involuntarily terminated.” 2A. Haralambie, Handling
Child Custody, Abuse and Adoption Cases §14.1, pp.764–765 (3d ed.
2009) (footnote omitted). Cite as: 570 U. S. ____ (2013) 15
SOTOMAYOR, J., dissenting
ing the familial relationships between Indian parents and
their children because it concluded that state authorities
“often failed to recognize the essential tribal relations of
Indian people and the cultural and social standards pre
vailing in Indian communities and families.” 25 U. S. C.
§1901(5). It provided a “minimum Federal standar[d],”
§1902, for termination of parental rights that is more
demanding than the showing of unfitness under a high
“clear and convincing evidence” standard that is the norm
in the States, see 1 J. Hollinger, Adoption Law and Prac
tice §2.10 (2012); Santosky, 455 U. S., at 767–768.
While some States might provide protections compar-
able to §1912(d)’s required remedial efforts and §1912(f )’s
heightened standard for termination of parental rights,
many will provide less. There is no reason to believe
Congress wished to leave protection of the parental rights
of a subset of ICWA “parent[s]” dependent on the happen
stance of where a particular “child custody proceeding”
takes place. I would apply, as the statute construed in
its totality commands, the standards Congress provided
in §§1912(d) and (f ) to the termination of all ICWA
“parent[s’]” parent-child relationships.
II
The majority’s textually strained and illogical reading of
the statute might be explicable, if not justified, if there
were reason to believe that it avoided anomalous results
or furthered a clear congressional policy. But neither of
these conditions is present here.
A
With respect to §1912(d), the majority states that it
would be “unusual” to apply a rehabilitation requirement
where a natural parent has never had custody of his child.
Ante, at 14. The majority does not support this bare asser
tion, and in fact state child welfare authorities can and do 16 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
provide reunification services for biological fathers who
have not previously had custody of their children.10 And
notwithstanding the South Carolina Supreme Court’s im-
precise interpretation of the provision, see 398 S. C., at
647–648, 731 S. E. 2d, at 562, §1912(d) does not require
the prospective adoptive family to themselves undertake
the mandated rehabilitative efforts. Rather, it requires the
party seeking termination of parental rights to “satisfy
the court that active efforts have been made” to provide
appropriate remedial services.
In other words, the prospective adoptive couple have to
make an evidentiary showing, not undertake person-to
person remedial outreach. The services themselves might
be attempted by the Indian child’s Tribe, a state agency,
or a private adoption agency. Such remedial efforts are
a familiar requirement of child welfare law, including fed-
eral child welfare policy. See 42 U. S. C. §671(a)(15)(B)
(requiring States receiving federal funds for foster care
and adoption assistance to make “reasonable efforts . . . to
preserve and reunify families” prior to foster care place
ment or removal of a child from its home).
——————
10See, e.g., Cal. Welf. & Inst. Code Ann. §361.5(a) (West Supp. 2013);
Francisco G. v. Superior Court, 91 Cal. App. 4th 586, 596, 110 Cal.
Rptr. 2d 679, 687 (2001) (stating that “the juvenile court ‘may’ order
reunification services for a biological father if the court determines that
the services will benefit the child”); In re T. B. W., 312 Ga. App. 733,
734–735, 719 S. E. 2d 589, 591 (2011) (describing reunification services
provided to biological father beginning when “he had yet to establish
his paternity” under state law, including efforts to facilitate visitation
and involving father in family “ ‘team meetings’ ”); In re Guardianship
of DMH, 161 N. J. 365, 391–394, 736 A. 2d 1261, 1275–1276 (1999)
(discussing what constitutes “reasonable efforts” to reunify a noncusto
dial biological father with his children in accordance with New Jersey
statutory requirements); In re Bernard T., 319 S. W. 3d 586, 600 (Tenn.
2010) (stating that “in appropriate circumstances, the Department [of
Children’s Services] must make reasonable efforts to reunite a child
with his or her biological parents or legal parents or even with the
child’s putative biological father”). Cite as: 570 U. S. ____ (2013) 17
SOTOMAYOR, J., dissenting
There is nothing “bizarre,” ante, at 14, about placing on
the party seeking to terminate a father’s parental rights
the burden of showing that the step is necessary as well as
justified. “For . . . natural parents, . . . the consequence of
an erroneous termination [of parental rights] is the un
necessary destruction of their natural family.” Santosky,
455 U. S., at 766. In any event, the question is a nonissue
in this case given the family court’s finding that Birth
Father is “a fit and proper person to have custody of his
child” who “has demonstrated [his] ability to parent effec
tively” and who possesses “unwavering love for this child.”
App. to Pet. for Cert. 128a (Sealed). Petitioners cannot
show that rehabilitative efforts have “proved unsuccess
ful,” 25 U. S. C. §1912(d), because Birth Father is not in
need of rehabilitation.11
B
On a more general level, the majority intimates that
ICWA grants Birth Father an undeserved windfall: in the
majority’s words, an “ICWA trump card” he can “play . . .
at the eleventh hour to override the mother’s decision and
the child’s best interests.” Ante, at 16. The implicit argu
ment is that Congress could not possibly have intended to
recognize a parent-child relationship between Birth Fa
ther and Baby Girl that would have to be legally termi
nated (either by valid consent or involuntary termination)
before the adoption could proceed.
——————
11The majority’s concerns about what might happen if no state or
tribal authority stepped in to provide remedial services are therefore
irrelevant here. Ante, at 14, n. 9. But as a general matter, if a parent
has rights that are an obstacle to an adoption, the state- and federal
law safeguards of those rights must be honored, irrespective of pro
spective adoptive parents’ understandable and valid desire to see the
adoption finalized. “We must remember that the purpose of an adop
tion is to provide a home for a child, not a child for a home.” In re
Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190 (Heiple, J,.
supplemental opinion supporting denial of rehearing). 18 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
But this supposed anomaly is illusory. In fact, the law
of at least 15 States did precisely that at the time ICWA
was passed.12 And the law of a number of States still does
so. The State of Arizona, for example, requires that notice
of an adoption petition be given to all “potential father[s]”
and that they be informed of their “right to seek custody.”
Ariz. Rev. Stat. §§8–106(G)–(J) (West Supp. 2012). In
Washington, an “alleged father[’s]” consent to adoption
is required absent the termination of his parental rights,
Wash. Rev. Code §§26.33.020(1), 26.33.160(1)(b) (2012);
and those rights may be terminated only “upon a showing
by clear, cogent, and convincing evidence” not only that
termination is in the best interest of the child and that the
——————
12See Ariz. Rev. Stat. Ann. §8–106(A)(1)(c) (1974–1983 West Supp.)
(consent of both natural parents necessary); Iowa Code §§600.3(2),
600A.2, 600A.8 (1977) (same); Ill. Comp. Stat., ch. 40, §1510 (West
1977) (same); Nev. Rev. Stat. §§127.040, 127.090 (1971) (same); R. I.
Gen. Laws §§15–7–5, 15–7–7 (Bobbs-Merrill 1970) (same); Conn. Gen.
Stat. §§45–61d, 45–61i(b)(2) (1979) (natural father’s consent required if
paternity acknowledged or judicially established); Fla. Stat. §63.062
(1979) (same); Ore. Rev. Stat. §§109.092, 109.312 (1975) (same); S. D.
Codified Laws §§25–6–1.1, 25–6–4 (Allen Smith 1976) (natural father’s
consent required if mother identifies him or if paternity is judicially
established); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-Merrill
Supp. 1980) (same); Ala. Code §26–10–3 (Michie 1977) (natural father’s
consent required when paternity judicially established); Minn. Stat.
§§259.24(a), 259.26(3)(a), (e), (f ), 259.261 (1978) (natural father’s
consent required when identified on birth certificate, paternity judi-
cially established, or paternity asserted by affidavit); N. H. Rev. Stat. Ann.
§170–B:5(I)(d) (1977) (natural father’s consent required if he files notice
of intent to claim paternity within set time from notice of prospective
adoption); Wash. Rev. Code §§26.32.040(5), 26.32.085 (1976) (natural
father’s consent required if paternity acknowledged, judicially estab
lished, or he files notice of intent to claim paternity within set time
from notice of prospective adoption); W. Va. Code Ann. §48–4–1 (Michie
Supp. 1979) (natural father’s consent required if father admits pater
nity by any means). See also Del. Code Ann., Tit. 13, §908(2) (Michie
Supp. 1980) (natural father’s consent required unless court finds that
dispensing with consent requirement is in best interests of the child);
Wyo. Stat. Ann. §§1–22–108, 1–22–109 (Michie 1988) (same). Cite as: 570 U. S. ____ (2013) 19
SOTOMAYOR, J., dissenting
father is withholding his consent to adoption contrary to
child’s best interests, but also that the father “has failed
to perform parental duties under circumstances showing
a substantial lack of regard for his parental obligations,”
§26.33.120(2).13
Without doubt, laws protecting biological fathers’ paren
tal rights can lead—even outside the context of ICWA—to
outcomes that are painful and distressing for both would
be adoptive families, who lose a much wanted child, and
children who must make a difficult transition. See, e.g.,
In re Adoption of Tobias D., 2012 Me. 45, ¶27, 40 A. 3d
990, 999 (recognizing that award of custody of 2½-year-old
child to biological father under applicable state law once
paternity is established will result in the “difficult and pain-
ful” necessity of “removing the child from the only home
he has ever known”). On the other hand, these rules
recognize that biological fathers have a valid interest in a
relationship with their child. See supra, at 6. And chil
dren have a reciprocal interest in knowing their biological
parents. See Santosky, 455 U. S., at 760–761, n. 11 (de
scribing the foreclosure of a newborn child’s opportunity to
“ever know his natural parents” as a “los[s] [that] cannot
be measured”). These rules also reflect the understanding
that the biological bond between a parent and a child is a
strong foundation on which a stable and caring relation
ship may be built. Many jurisdictions apply a custodial
preference for a fit natural parent over a party lacking
this biological link. See, e.g., Ex parte Terry, 494 So. 2d
628, 632 (Ala. 1986); Appeal of H. R., 581 A. 2d 1141, 1177
(D. C. 1990) (opinion of Ferren, J.); Stuhr v. Stuhr, 240
Neb. 239, 245, 481 N. W. 2d 212, 216 (1992); In re Michael
B., 80 N. Y. 2d 299, 309, 604 N. E. 2d 122, 127 (1992). Cf.
Smith v. Organization of Foster Families For Equality &
Reform, 431 U. S. 816, 845 (1977) (distinguishing a natu
——————
13See also, e.g., Nev. Rev. Stat. §§127.040(1)(a), 128.150 (2011). 20 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
ral parent’s “liberty interest in family privacy,” which has
its source “in intrinsic human rights,” with a foster par
ent’s parallel interest in his or her relationship with a
child, which has its “origins in an arrangement in which
the State has been a partner from the outset”). This pref
erence is founded in the “presumption that fit parents act
in the best interests of their children.” Troxel v. Granville,
530 U. S. 57, 68 (2000) (plurality opinion). “‘[H]istorically
[the law] has recognized that natural bonds of affection
[will] lead parents’” to promote their child’s well-being.
Ibid. (quoting Parham v. J. R., 442 U. S. 584, 602 (1979)).
Balancing the legitimate interests of unwed biological
fathers against the need for stability in a child’s family
situation is difficult, to be sure, and States have, over the
years, taken different approaches to the problem. Some
States, like South Carolina, have opted to hew to the con
stitutional baseline established by this Court’s prece-
dents and do not require a biological father’s consent to
adoption unless he has provided financial support during
pregnancy. See Quilloin v. Walcott, 434 U. S. 246, 254–
256 (1978); Lehr, 463 U. S., at 261. Other States, however, have decided to give the rights of biological fathers
more robust protection and to afford them consent rights
on the basis of their biological link to the child. At the
time that ICWA was passed, as noted, over one-fourth of
States did so. See supra, at 17–18.
ICWA, on a straightforward reading of the statute, is
consistent with the law of those States that protected, and
protect, birth fathers’ rights more vigorously. This read
ing can hardly be said to generate an anomaly. ICWA, as
all acknowledge, was “the product of rising concern . . .
[about] abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their
families.” Holyfield, 490 U. S., at 32. It stands to reason
that the Act would not render the legal status of an Indian
father’s relationship with his biological child fragile, but Cite as: 570 U. S. ____ (2013) 21
SOTOMAYOR, J., dissenting
would instead grant it a degree of protection commensu
rate with the more robust state-law standards.14
C
The majority also protests that a contrary result to the
one it reaches would interfere with the adoption of Indian
children. Ante, at 14, 16. This claim is the most perplex
ing of all. A central purpose of ICWA is to “promote the
stability and security of Indian . . . families,” 25 U. S. C.
§1902, in part by countering the trend of placing “an
alarmingly high percentage of [Indian] children . . . in nonIndian foster and adoptive homes and institutions.”
§1901(4). The Act accomplishes this goal by, first, protect
ing the familial bonds of Indian parents and children, see
supra, at 4–12; and, second, establishing placement pref
erences should an adoption take place, see §1915(a).
ICWA does not interfere with the adoption of Indian chil
dren except to the extent that it attempts to avert the
necessity of adoptive placement and makes adoptions of
Indian children by non-Indian families less likely.
The majority may consider this scheme unwise. But
no principle of construction licenses a court to interpret a
statute with a view to averting the very consequences
Congress expressly stated it was trying to bring about.
Instead, it is the “‘judicial duty to give faithful meaning to
——————
14It bears emphasizing that the ICWA standard for termination of
parental rights of which Birth Father claims the benefit is more protec
tive than, but not out of step with, the clear and convincing standard
generally applied in state courts when termination of parental rights
is sought. Birth Father does not claim that he is entitled to custody
of Baby Girl unless petitioners can satisfy the demanding standard of
§1912(f ). See Brief for Respondent Birth Father 40, n. 15. The ques
tion of custody would be analyzed independently, as it was by the South
Carolina Supreme Court. Of course, it will often be the case that cus
tody is subsequently granted to a child’s fit parent, consistent with
the presumption that a natural parent will act in the best interests of
his child. See supra, at 19–20. 22 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
the language Congress adopted in the light of the evi-
dent legislative purpose in enacting the law in question.’”
Graham County Soil and Water Conservation Dist. v.
United States ex rel. Wilson, 559 U. S. 280, 298 (2010)
(quoting United States v. Bornstein, 423 U. S. 303, 310
(1976)).
The majority further claims that its reading is con
sistent with the “primary” purpose of the Act, which in the
majority’s view was to prevent the dissolution of “intact”
Indian families. Ante, at 9–10. We may not, however, give
effect only to congressional goals we designate “primary”
while casting aside others classed as “secondary”; we must
apply the entire statute Congress has written. While there
are indications that central among Congress’ concerns
in enacting ICWA was the removal of Indian children
from homes in which Indian parents or other guardians
had custody of them, see, e.g., §§1901(4), 1902, Con-
gress also recognized that “there is no resource that is
more vital to the continued existence and integrity of
Indian tribes than their children,” §1901(3). As we ob
served in Holyfield, ICWA protects not only Indian par
ents’ interests but also those of Indian tribes. See 490
U. S., at 34, 52. A tribe’s interest in its next generation of
citizens is adversely affected by the placement of Indian
children in homes with no connection to the tribe, whether
or not those children were initially in the custody of an
Indian parent.15
Moreover, the majority’s focus on “intact” families, ante,
at 10, begs the question of what Congress set out to ac
complish with ICWA. In an ideal world, perhaps all
parents would be perfect. They would live up to their
——————
15Birth Father is a registered member of the Cherokee Nation, a fact
of which Birth Mother was aware at the time of her pregnancy and of
which she informed her attorney. See 398 S. C. 625, 632–633, 731 S. E.
2d 550, 554 (2012). Cite as: 570 U. S. ____ (2013) 23
SOTOMAYOR, J., dissenting
parental responsibilities by providing the fullest possible
financial and emotional support to their children. They
would never suffer mental health problems, lose their jobs,
struggle with substance dependency, or encounter any of
the other multitudinous personal crises that can make it
difficult to meet these responsibilities. In an ideal world
parents would never become estranged and leave their
children caught in the middle. But we do not live in
such a world. Even happy families do not always fit the
custodial-parent mold for which the majority would reserve
IWCA’s substantive protections; unhappy families all too
often do not. They are families nonetheless. Congress
understood as much. ICWA’s definitions of “parent” and
“termination of parental rights” provided in §1903 sweep
broadly. They should be honored.
D
The majority does not rely on the theory pressed by
petitioners and the guardian ad litem that the canon of
constitutional avoidance compels the conclusion that ICWA
is inapplicable here. See Brief for Petitioners 43–51;
Brief for Respondent Guardian Ad Litem 48–58. It
states instead that it finds the statute clear.16 Ante, at 17.
But the majority nevertheless offers the suggestion that a
contrary result would create an equal protection problem.
Ibid. Cf. Brief for Petitioners 44–47; Brief for Respondent
——————
16 JUSTICE THOMAS concurs in the majority’s interpretation because,
although he finds the statute susceptible of more than one plausible
reading, he believes that the majority’s reading avoids “significant
constitutional problems” concerning whether ICWA exceeds Congress’
authority under the Indian Commerce Clause. Ante, at 1, 3–12. No
party advanced this argument, and it is inconsistent with this Court’s
precedents holding that Congress has “broad general powers to leg-
islate in respect to Indian tribes, powers that we have consistently
described as plenary and exclusive,” founded not only on the Indian
Commerce Clause but also the Treaty Clause. United States v. Lara,
541 U. S. 193, 200–201 (2004) (internal quotation marks omitted). 24 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
Guardian Ad Litem 53–55.
It is difficult to make sense of this suggestion in light of
our precedents, which squarely hold that classifications
based on Indian tribal membership are not impermissible
racial classifications. See United States v. Antelope, 430
U. S. 641, 645–647 (1977); Morton v. Mancari, 417 U. S.
535, 553–554 (1974). The majority’s repeated, analytically
unnecessary references to the fact that Baby Girl is 3/256
Cherokee by ancestry do nothing to elucidate its intima
tion that the statute may violate the Equal Protection
Clause as applied here. See ante, at 1, 6; see also ante,
at 16 (stating that ICWA “would put certain vulner-
able children at a great disadvantage solely because an
ancestor—even a remote one—was an Indian” (emphasis
added)). I see no ground for this Court to second-guess the
membership requirements of federally recognized Indian
tribes, which are independent political entities. See Santa
Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978).
I am particularly averse to doing so when the Federal
Government requires Indian tribes, as a prerequisite for
official recognition, to make “descen[t] from a historical
Indian tribe” a condition of membership. 25 CFR §83.7(e)
(2012).
The majority’s treatment of this issue, in the end, does
no more than create a lingering mood of disapprobation of
the criteria for membership adopted by the Cherokee
Nation that, in turn, make Baby Girl an “Indian child”
under the statute. Its hints at lurking constitutional
problems are, by its own account, irrelevant to its statutory
analysis, and accordingly need not detain us any longer.
III
Because I would affirm the South Carolina Supreme
Court on the ground that §1912 bars the termination of
Birth Father’s parental rights, I would not reach the
question of the applicability of the adoptive placement Cite as: 570 U. S. ____ (2013) 25
SOTOMAYOR, J., dissenting
preferences of §1915. I note, however, that the majority
does not and cannot foreclose the possibility that on re
mand, Baby Girl’s paternal grandparents or other mem
bers of the Cherokee Nation may formally petition for
adoption of Baby Girl. If these parties do so, and if on
remand Birth Father’s parental rights are terminated so
that an adoption becomes possible, they will then be enti
tled to consideration under the order of preference estab
lished in §1915. The majority cannot rule prospectively
that §1915 would not apply to an adoption petition that
has not yet been filed. Indeed, the statute applies “[i]n
any adoptive placement of an Indian child under State
law,” 25 U. S. C. §1915(a) (emphasis added), and contains
no temporal qualifications. It would indeed be an odd
result for this Court, in the name of the child’s best interests, cf. ante, at 15, to purport to exclude from the pro
ceedings possible custodians for Baby Girl, such as her
paternal grandparents, who may have well-established
relationships with her.
* * *
The majority opinion turns §1912 upside down, reading
it from bottom to top in order to reach a conclusion that is
manifestly contrary to Congress’ express purpose in enact
ing ICWA: preserving the familial bonds between Indian
parents and their children and, more broadly, Indian
tribes’ relationships with the future citizens who are “vital
to [their] continued existence and integrity.” §1901(3).
The majority casts Birth Father as responsible for the
painful circumstances in this case, suggesting that he
intervened “at the eleventh hour to override the mother’s
decision and the child’s best interests,” ante, at 16. I have
no wish to minimize the trauma of removing a 27-month
old child from her adoptive family. It bears remembering,
however, that Birth Father took action to assert his paren
tal rights when Baby Girl was four months old, as soon as 26 ADOPTIVE COUPLE v. BABY GIRL
SOTOMAYOR, J., dissenting
he learned of the impending adoption. As the South Caro
lina Supreme Court recognized, “ ‘[h]ad the mandate of . . .
ICWA been followed [in 2010], . . . 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.”’” 398
S. C., at 652, 731 S. E. 2d, at 564 (quoting Holyfield, 490
U. S., at 53–54).
The majority’s hollow literalism distorts the statute and
ignores Congress’ purpose in order to rectify a perceived
wrong that, while heartbreaking at the time, was a correct
application of federal law and that in any case cannot be
undone. Baby Girl has now resided with her father for 18
months. However difficult it must have been for her to
leave Adoptive Couple’s home when she was just over 2
years old, it will be equally devastating now if, at the age
of 3½, she is again removed from her home and sent to live
halfway across the country. Such a fate is not foreor
dained, of course. But it can be said with certainty that
the anguish this case has caused will only be compounded
by today’s decision.
I believe that the South Carolina Supreme Court’s
judgment was correct, and I would affirm it. I respectfully
dissent.
