Adoptive Couple v. Baby Girl, 570 U.S. (2013)

U.S. Supreme Court

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(Slip Opinion) OCTOBER TERM, 2012 NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing 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 beenprepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 1


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 SouthCarolina Supreme Court held that certain provisions ofthe federal Indian Child Welfare Act of 1978 required herto be taken, at the age of 27 months, from the only parentsshe had ever known and handed over to her biologicalfather, who had attempted to relinquish his parentalrights and who had no prior contact with the child. Theprovisions of the federal statute at issue here do not demand this result. Contrary to the State Supreme Court's ruling, we holdthat 25 U. S. C. §1912(f )-which bars involuntary termination of a parent's rights in the absence of a heightenedshowing that serious harm to the Indian child is likely toresult from the parent's "continued custody" of the child-does not apply when, as here, the relevant parent neverhad 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 thatremedial efforts have been made to prevent the "breakupof the Indian family"-is inapplicable when, as here, theparent abandoned the Indian child before birth and neverhad custody of the child. Finally, we clarify that §1915(a),which provides placement preferences for the adoption ofIndian children, does not bar a non-Indian family likeAdoptive Couple from adopting an Indian child when noother eligible candidates have sought to adopt the child.We accordingly reverse the South Carolina Supreme Court'sjudgment 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 risingconcern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusivechild welfare practices that resulted in the separation oflarge numbers of Indian children from their families andtribes through adoption or foster care placement, usuallyin non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Congress foundthat "an alarmingly high percentage of Indian families[were being] broken up by the removal, often unwarranted,of their children from them by nontribal public andprivate agencies." §1901(4). This "wholesale removal ofIndian children from their homes" prompted Congress toenact the ICWA, which establishes federal standards thatgovern state-court child custody proceedings involvingIndian children. Id., at 32, 36 (internal quotation marksomitted); see also §1902 (declaring that the ICWA establishes "minimum Federal standards for the removal ofIndian children from their families").1 ------ 1 It is undisputed that Baby Girl is an "Indian child" as defined by theICWA 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

Opinion of the Court Three provisions of the ICWA are especially relevant tothis case. First, "[a]ny party seeking" an involuntarytermination of parental rights to an Indian child understate law must demonstrate that "active efforts havebeen made to provide remedial services and rehabilitativeprograms designed to prevent the breakup of the Indianfamily and that these efforts have proved unsuccessful."§1912(d). Second, a state court may not involuntarilyterminate parental rights to an Indian child "in the absence of a determination, supported by evidence beyond areasonable doubt, including testimony of qualified expertwitnesses, that the continued custody of the child by theparent or Indian custodian is likely to result in seriousemotional or physical damage to the child." §1912(f ).Third, with respect to adoptive placements for an Indianchild under state law, "a preference shall be given, in theabsence of good cause to the contrary, to a placement with

(1) a member of the child's extended family; (2) othermembers of the Indian child's tribe; or (3) other Indianfamilies." §1915(a)


In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of theCherokee 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 custodyproceeding," which the ICWA defines to include proceedings thatinvolve "termination of parental rights" and "adoptive placement,"§1903(1). 3 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 afterthe 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 respondedvia 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 contactedthe Cherokee Nation to determine whether BiologicalFather was formally enrolled. The inquiry letter misspelled Biological Father's first name and incorrectlystated his birthday, and the Cherokee Nation respondedthat, based on the information provided, it could not verifyBiological Father's membership in the tribal records.Working through a private adoption agency, BirthMother selected Adoptive Couple, non-Indians living inSouth Carolina, to adopt Baby Girl. Adoptive Couplesupported Birth Mother both emotionally and financiallythroughout her pregnancy. Adoptive Couple was presentat Baby Girl's birth in Oklahoma on September 15, 2009,and Adoptive Father even cut the umbilical cord. Thenext morning, Birth Mother signed forms relinquishingher 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 BabyGirl. It is undisputed that, for the duration of the pregnancyand the first four months after Baby Girl's birth, Biological Father provided no financial assistance to Birth Motheror Baby Girl, even though he had the ability to do so. Indeed, Biological Father "made no meaningful attempts Opinion of the Court to assume his responsibility of parenthood" during thisperiod. 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 ofthe pending adoption. (This was the first notificationthat they had provided to Biological Father regardingthe adoption proceeding.) Biological Father signed papersstating that he accepted service and that he was "notcontesting the adoption." App. 37. But Biological Fatherlater testified that, at the time he signed the papers, hethought that he was relinquishing his rights to BirthMother, not to Adoptive Couple. Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of theadoption proceedings.2 In the adoption proceedings, Biological Father sought custody and stated that he did notconsent to Baby Girl's adoption. Moreover, BiologicalFather took a paternity test, which verified that he wasBaby Girl's biological father. A trial took place in the South Carolina Family Court inSeptember 2011, by which time Baby Girl was two yearsold. 398 S. C. 625, 634-635, 731 S. E. 2d 550, 555-556(2012). The Family Court concluded that Adoptive Couplehad not carried the heightened burden under §1912(f ) ofproving that Baby Girl would suffer serious emotional orphysical damage if Biological Father had custody. See id.,at 648-651, 731 S. E. 2d, at 562-564. The Family Courttherefore denied Adoptive Couple's petition for adoptionand 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 BiologicalFather 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. 5 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 FamilyCourt's denial of the adoption and the award of custody toBiological Father. Id., at 629, 731 S. E. 2d, at 552. TheState Supreme Court first determined that the ICWAapplied 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 thattwo separate provisions of the ICWA barred the termination of Biological Father's parental rights. First, the courtheld that Adoptive Couple had not shown that "activeefforts ha[d] been made to provide remedial services andrehabilitative programs designed to prevent the breakupof the Indian family." §1912(d); see also id., at 647-648,731 S. E. 2d, at 562. Second, the court concluded thatAdoptive Couple had not shown that Biological Father's"custody of Baby Girl would result in serious emotional orphysical harm to her beyond a reasonable doubt." Id., at648-649, 731 S. E. 2d, at 562-563 (citing §1912(f )). Finally,the court stated that, even if it had decided to terminateBiological 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)


It is undisputed that, had Baby Girl not been 3/256Cherokee, Biological Father would have had no right to ------ 3 According to the guardian ad litem, Biological Father allowed BabyGirl to speak with Adoptive Couple by telephone the following day, butthen cut off all communication between them. Moreover, according toBirth Mother, Biological Father has made no attempt to contact hersince the time he took custody of Baby Girl. 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, at560, n. 19 ("Under state law, [Biological] Father's consent to the adoption would not have been required"). TheSouth Carolina Supreme Court held, however, that Biological Father is a "parent" under the ICWA and that twostatutory provisions-namely, §1912(f ) and §1912(d)-barthe 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 heis 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 terminationof parental rights with respect to an Indian child. Specifically, §1912(f ) provides that "[n]o termination of parentalrights may be ordered in such proceeding in the absence ofa determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child bythe parent or Indian custodian is likely to result in seriousemotional or physical damage to the child." (Emphasisadded.) The South Carolina Supreme Court held thatAdoptive Couple failed to satisfy §1912(f ) because they didnot make a heightened showing that Biological Father's"prospective legal and physical custody" would likely resultin 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 thatthese provisions are inapplicable for other reasons, however, we neednot decide whether Biological Father is a "parent." 7 8 ADOPTIVE COUPLE v. BABY GIRL Opinion of the Court Section 1912(f ) conditions the involuntary terminationof parental rights on a showing regarding the merits of"continued custody of the child by the parent." (Emphasisadded.) The adjective "continued" plainly refers to a preexisting state. As JUSTICE SOTOMAYOR concedes, post, at11 (dissenting opinion) (hereinafter the dissent), "continued" means "[c]arried on or kept up without cessation"or "[e]xtended in space without interruption or breach ofconne[ct]ion." Compact Edition of the Oxford EnglishDictionary 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 witha 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 timeor space esp. without interruption"); Aguilar v. FDIC, 63

F. 3d 1059, 1062 (CA11 1995) (per curiam) (suggestingthat the phrase "continue an action" means "go on with . . .an action" that is "preexisting"). The term "continued"also can mean "resumed after interruption." Webster's493; see American Heritage Dictionary 288. The phrase"continued custody" therefore refers to custody that aparent already has (or at least had at some point in thepast). As a result, §1912(f ) does not apply in cases wherethe Indian parent never had custody of the Indian child.5Biological 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 factthat its interpretation simply cannot be squared with the statutorytext. A biological father's "continued custody" of a child cannot beassessed if the father never had custody at all, and the use of a different phrase-"termination of parental rights"-cannot change that. Inaddition, the dissent's reliance on subsection headings, post, at 9,overlooks the fact that those headings were not actually enacted byCongress. See 92 Stat. 3071-3072. Opinion of the Court "[n]o termination of parental rights may be ordered . . . inthe absence of a determination" relating to "the continuedcustody of the child by the parent," Biological Fathercontends that if a determination relating to "continuedcustody" is inapposite in cases where there is no "custody,"the statutory text prohibits termination. See Brief forRespondent Birth Father 39. But it would be absurd tothink that Congress enacted a provision that permitstermination of a custodial parent's rights, while simultaneously prohibiting termination of a noncustodial parent'srights. If the statute draws any distinction betweencustodial and noncustodial parents, that distinctionsurely does not provide greater protection for noncustodialparents.6 Our reading of §1912(f ) comports with the statutory textdemonstrating that the primary mischief the ICWA wasdesigned to counteract was the unwarranted removal ofIndian children from Indian families due to the culturalinsensitivity and biases of social workers and state courts.The statutory text expressly highlights the primary problem that the statute was intended to solve: "an alarminglyhigh percentage of Indian families [were being] broken upby the removal, often unwarranted, of their children fromthem by nontribal public and private agencies." §1901(4)(emphasis added); see also §1902 (explaining that theICWA establishes "minimum Federal standards for theremoval of Indian children from their families" (emphasisadded)); 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 biologicalfather qualifies for "substantive" statutory protections "only when [he]has physical or state-recognized legal custody." Post, at 2, 6-7. But thedissent undercuts its own point when it states that "numerous" ICWAprovisions not at issue here afford "meaningful" protections to biologicalfathers regardless of whether they ever had custody. Post, at 4-7, andnn. 1, 2. 9 10 ADOPTIVE COUPLE v. BABY GIRL Opinion of the Court ther underscores that the Act was primarily intended tostem the unwarranted removal of Indian children fromintact 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 Indianchildren and to promote the stability and security of Indiantribes and families by establishing minimum Federalstandards for the removal of Indian children from theirfamilies and the placement of such children in foster oradoptive homes" (emphasis added)); id., at 9 (decrying the"wholesale separation of Indian children" from their Indianfamilies); id., at 22 (discussing "the removal" of Indianchildren from their parents pursuant to §§1912(e) and (f )).In sum, when, as here, the adoption of an Indian child isvoluntarily and lawfully initiated by a non-Indian parentwith sole custodial rights, the ICWA's primary goal ofpreventing the unwarranted removal of Indian childrenand the dissolution of Indian families is not implicated. The dissent fails to dispute that nonbinding guidelinesissued by the Bureau of Indian Affairs (BIA) shortly afterthe 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 BIAstated that, under §1912(f ), "[a] child may not be removedsimply because there is someone else willing to raise thechild who is likely to do a better job"; instead, "[i]t mustbe shown that . . . it is dangerous for the child to remainwith his or her present custodians." Guidelines for StateCourts; Indian Child Custody Proceedings, 44 Fed. Reg.67593 (1979) (emphasis added) (hereinafter Guidelines).Indeed, the Guidelines recognized that §1912(f ) appliesonly when there is pre-existing custody to evaluate. Seeibid. ("[T]he issue on which qualified expert testimony isrequired is the question of whether or not serious damageto the child is likely to occur if the child is not removed"). Under our reading of §1912(f ), Biological Father should Opinion of the Court not have been able to invoke §1912(f ) in this case, becausehe had never had legal or physical custody of Baby Girl asof the time of the adoption proceedings. As an initialmatter, it is undisputed that Biological Father never hadphysical custody of Baby Girl. And as a matter of bothSouth Carolina and Oklahoma law, Biological Fathernever had legal custody either. See S. C. Code Ann. §63-17-20(B) (2010) ("Unless the court orders otherwise, thecustody of an illegitimate child is solely in the naturalmother unless the mother has relinquished her rights tothe child"); Okla. Stat., Tit. 10, §7800 (West Cum. Supp.2013) ("Except as otherwise provided by law, the motherof a child born out of wedlock has custody of the childuntil determined otherwise by a court of competentjurisdiction").7 In sum, the South Carolina Supreme Court erred infinding that §1912(f ) barred termination of BiologicalFather's parental rights


Section 1912(d) provides that "[a]ny party" seeking toterminate parental rights to an Indian child under statelaw "shall satisfy the court that active efforts have beenmade to provide remedial services and rehabilitativeprograms designed to prevent the breakup of the Indian ------ 7 In an effort to rebut our supposed conclusion that "Congress couldnot possibly have intended" to require legal termination of BiologicalFather's rights with respect to Baby Girl, the dissent asserts that aminority of States afford (or used to afford) protection to similarlysituated biological fathers. See post, at 17-18, and n. 12 (emphasisadded). This is entirely beside the point, because we merely concludethat, based on the statute's text and structure, Congress did not extendthe heightened protections of §1912(d) and §1912(f ) to all biologicalfathers. The fact that state laws may provide certain protections tobiological fathers who have abandoned their children and who havenever had custody of their children in no way undermines our analysisof these two federal statutory provisions. 11 12 ADOPTIVE COUPLE v. BABY GIRL Opinion of the Court family and that these efforts have proved unsuccessful."(Emphasis added.) The South Carolina Supreme Courtfound that Biological Father's parental rights could notbe terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedialservices 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 theparent's rights. The term "breakup" refers in this contextto "[t]he discontinuance of a relationship," American Heritage Dictionary 235 (3d ed. 1992), or "an ending as aneffective entity," Webster's 273 (defining "breakup" as "adisruption or dissolution into component parts: an endingas an effective entity"). See also Compact OED 1076(defining "break-up" as, inter alia, a "disruption, separation into parts, disintegration"). But when an Indianparent abandons an Indian child prior to birth and thatchild has never been in the Indian parent's legal orphysical custody, there is no "relationship" that would be"discontinu[ed]"-and no "effective entity" that wouldbe "end[ed]"-by the termination of the Indian parent's rights. In such a situation, the "breakup of theIndian family" has long since occurred, and §1912(d) isinapplicable.Our interpretation of §1912(d) is, like our interpretationof §1912(f ), consistent with the explicit congressionalpurpose of providing certain "standards for the removal ofIndian children from their families." §1902 (emphasisadded); 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 theneed to remove the Indian child from his or her parents orIndian custodians," not to facilitate a transfer of the childto an Indian parent. See 44 Fed. Reg., at 67592 (emphasis Opinion of the Court 13 added).Our interpretation of §1912(d) is also confirmed by theprovision's placement next to §1912(e) and §1912(f ), bothof which condition the outcome of proceedings on themerits of an Indian child's "continued custody" with hisparent. That these three provisions appear adjacent toeach other strongly suggests that the phrase "breakup ofthe 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 thatmay seem ambiguous in isolation is often clarified by theremainder of the statutory scheme"). None of these threeprovisions creates parental rights for unwed fathers whereno such rights would otherwise exist. Instead, Indianparents who are already part of an "Indian family" areprovided with access to "remedial services and rehabilitative programs" under §1912(d) so that their "custody"might be "continued" in a way that avoids foster-careplacement under §1912(e) or termination of parentalrights under §1912(f ). In other words, the provision of"remedial services and rehabilitative programs" under§1912(d) supports the "continued custody" that is protectedby §1912(e) and §1912(f ).8 ------ 8 The dissent claims that our reasoning "necessarily extends to allIndian parents who have never had custody of their children," even ifthose parents have visitation rights. Post, at 2-3, 13-14. As an initialmatter, the dissent's concern about the effect of our decision on individuals with visitation rights will be implicated, at most, in a relativelysmall class of cases. For example, our interpretation of §1912(d) wouldimplicate 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 legalcustody, but did have some sort of visitation rights. Moreover, in caseswhere this concern is implicated, such parents might receive "comparable" protections under state law. See post, at 15. And in any event, it isthe 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 appliedto state social workers who might otherwise be too quickto remove Indian children from their Indian families. Itwould, however, be unusual to apply §1912(d) in the context of an Indian parent who abandoned a child prior tobirth and who never had custody of the child. The decisionbelow illustrates this point. The South Carolina SupremeCourt held that §1912(d) mandated measures such as"attempting to stimulate [Biological] Father's desire to bea parent." 398 S. C., at 647, 731 S. E. 2d, at 562. But ifprospective adoptive parents were required to engage inthe bizarre undertaking of "stimulat[ing]" a biologicalfather's "desire to be a parent," it would surely dissuadesome of them from seeking to adopt Indian children.9 Andthis would, in turn, unnecessarily place vulnerable Indianchildren at a unique disadvantage in finding a permanentand loving home, even in cases where neither an Indianparent nor the relevant tribe objects to the adoption.10 In sum, the South Carolina Supreme Court erred infinding that §1912(d) barred termination of BiologicalFather's parental rights


In the decision below, the South Carolina Supreme ------ Under the dissent's reading, any biological parent-even a spermdonor-would enjoy the heightened protections of §1912(d) and§1912(f ), even if he abandoned the mother and the child immediatelyafter conception. Post, at 14, n. 8. 9 Biological Father and the Solicitor General argue that a tribeor state agency could provide the requisite remedial services under§1912(d). Brief for Respondent Birth Father 43; Brief for United Statesas Amicus Curiae 22. But what if they don't? And if they don't, wouldthe adoptive parents have to undertake the task? 10 The dissent repeatedly mischaracterizes our opinion. As our detailed discussion of the terms of the ICWA makes clear, our decisionis not based on a "[p]olicy disagreement with Congress' judgment." Post,at 2; see also post, at 8, 21. Opinion of the Court Court suggested that if it had terminated Biological Father's rights, then §1915(a)'s preferences for the adoptiveplacement of an Indian child would have been applicable.398 S. C., at 655-657, 731 S. E. 2d, at 566-567. In sodoing, however, the court failed to recognize a critical limitation on the scope of §1915(a).Section 1915(a) provides that "[i]n any adoptive placement of an Indian child under State law, a preferenceshall be given, in the absence of good cause to the contrary,to a placement with (1) a member of the child's extendedfamily; (2) other members of the Indian child's tribe; or

(3) other Indian families." Contrary to the South CarolinaSupreme Court's suggestion, §1915(a)'s preferences areinapplicable in cases where no alternative party has formally sought to adopt the child. This is because theresimply is no "preference" to apply if no alternative partythat is eligible to be preferred under §1915(a) has comeforward. In this case, Adoptive Couple was the only party thatsought to adopt Baby Girl in the Family Court or theSouth Carolina Supreme Court. See Brief for Petitioners19, 55; Brief for Respondent Birth Father 48; Reply Brieffor 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 beterminated in the first place.11 Moreover, Baby Girl's ------ 11 Section 1915(c) also provides that, in the case of an adoptive placement under §1915(a), "if the Indian child's tribe shall establish adifferent order of preference by resolution, the agency or court effectingthe placement shall follow such order so long as the placement is theleast restrictive setting appropriate to the particular needs of the child,as provided in [§1915(b)]." Although we need not decide the issuehere, it may be the case that an Indian child's tribe could alter §1915'spreferences in a way that includes a biological father whose rights wereterminated, but who has now reformed. See §1915(c). If a tribe were totake such an approach, however, the court would still have the power todetermine whether "good cause" exists to disregard the tribe's order of 15 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 notparties to this action"). Nor did other members of theCherokee Nation or "other Indian families" seek to adoptBaby Girl, even though the Cherokee Nation had noticeof-and intervened in-the adoption proceedings. SeeBrief for Respondent Cherokee Nation 21-22; Reply Brieffor 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 Actwould 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 abandonhis child in utero and refuse any support for the birthmother-perhaps contributing to the mother's decision toput the child up for adoption-and then could play hisICWA trump card at the eleventh hour to override themother's decision and the child's best interests. If thiswere possible, many prospective adoptive parents wouldsurely pause before adopting any child who might possiblyqualify as an Indian under the ICWA. Such an interpreta------- preference. See §§1915(a), (c); In re Adoption of T. R. M., 525 N. E. 2d298, 313 (Ind. 1988). 12 To be sure, an employee of the Cherokee Nation testified that theCherokee Nation certifies families to be adoptive parents and thatthere are approximately 100 such families "that are ready to takechildren that want to be adopted." Record 446. However, this testimony was only a general statement regarding the Cherokee Nation'spractices; it did not demonstrate that a specific Indian family waswilling to adopt Baby Girl, let alone that such a family formally soughtsuch adoption in the South Carolina courts. See Reply Brief for Petitioners 13-14; see also Brief for Respondent Cherokee Nation 21-22. Opinion of the Court tion would raise equal protection concerns, but the plaintext of §§1912(f ) and (d) makes clear that neither provisionapplies in the present context. Nor do §1915(a)'s rebuttable adoption preferences apply when no alternative partyhas formally sought to adopt the child. We thereforereverse the judgment of the South Carolina SupremeCourt and remand the case for further proceedings notinconsistent with this opinion. It is so ordered. 17 THOMAS, J., concurring 1 SUPREME COURT OF THE UNITED STATES _________________ _________________

ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,A MINOR CHILD UNDER THE AGE OFFOURTEEN YEARS, ET AL.ON WRIT OF CERTIORARI TO THE SUPREME COURT OFSOUTH CAROLINA[June 25, 2013]JUSTICE THOMAS, concurring. I join the Court's opinion in full but write separatelyto explain why constitutional avoidance compels this outcome. Each party in this case has put forward a plausibleinterpretation of the relevant sections of the Indian ChildWelfare Act (ICWA). However, the interpretations offeredby respondent Birth Father and the United States raisesignificant constitutional problems as applied to thiscase. Because the Court's decision avoids those problems,I concur in its interpretation


This case arises out of a contested state-court adoptionproceeding. Adoption proceedings are adjudicated in statefamily courts across the country every day, and "domesticrelations" is "an area that has long been regarded as avirtually exclusive province of the States." Sosna v. Iowa,419 U. S. 393, 404 (1975). Indeed, "[t]he whole subject ofthe domestic relations of husband and wife, parent andchild, belongs to the laws of the States and not to the lawsof the United States." In re Burrus, 136 U. S. 586, 593-594 (1890). Nevertheless, when Adoptive Couple filed apetition in South Carolina Family Court to finalize theiradoption 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 governstate-court child custody proceedings involving Indianchildren." Ante, at 2. The ICWA defines "Indian child" as"any unmarried person who is under age eighteen and iseither (a) a member of an Indian tribe or (b) is eligiblefor membership in an Indian tribe and is the biologicalchild 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 ofthe parent-child relationship," §1903(1)(ii).The ICWA restricts a state court's ability to terminatethe parental rights of an Indian parent in two relevantways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights "in the absence of adetermination, supported by evidence beyond a reasonabledoubt, including testimony of qualified expert witnesses,that the continued custody of the child by the parent orIndian custodian is likely to result in serious emotional orphysical damage to the child." Section 1912(d) prohibits astate court from terminating parental rights until thecourt is satisfied "that active efforts have been made toprovide remedial services and rehabilitative programsdesigned to prevent the breakup of the Indian family andthat these efforts have proved unsuccessful." A thirdprovision creates specific placement preferences for theadoption of Indian children, which favor placement withIndians over other adoptive families. §1915(a). Operatingtogether, these requirements often lead to different outcomes than would result under state law. That is precisely

THOMAS, J., concurring what happened here. See ante, at 6 ("It is undisputedthat, had Baby Girl not been 3/256 Cherokee, BiologicalFather would have had no right to object to her adoptionunder South Carolina law").The ICWA recognizes States' inherent "jurisdiction overIndian child custody proceedings," §1901(5), but assertsthat federal regulation is necessary because States "haveoften failed to recognize the essential tribal relations ofIndian people and the cultural and social standards pre-ailing in Indian communities and families," ibid. However,Congress may regulate areas of traditional state concernonly if the Constitution grants it such power. Admt. 10("The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"). Thethreshold question, then, is whether the Constitutiongrants Congress power to override state custody lawwhenever an Indian is involved


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. SeeFletcher, The Supreme Court and Federal Indian Policy,

85 Neb. L. Rev. 121, 137 (2006) ("As a matter of federalconstitutional law, the Indian Commerce Clause grantsCongress the only explicit constitutional authority to dealwith Indian tribes"); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev.201, 210 (2007) (hereinafter Natelson) (evaluating, andrejecting, other potential sources of authority supportingcongressional power over Indians). The assertion of ple-3 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 thisCourt has said that the "central function of the IndianCommerce Clause is to provide Congress with plenarypower to legislate in the field of Indian affairs," CottonPetroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989),neither the text nor the original understanding of theClause supports Congress' claim to such "plenary" power


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 originalConstitution was ratified, 'commerce' consisted of selling,buying, and bartering, as well as transporting for thesepurposes." United States v. Lopez, 514 U. S. 549, 585(1995) (THOMAS, J., concurring). See also 1 S. Johnson, ADictionary 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-Federalistsdiscussed the Commerce Clause during the ratificationperiod, they often used trade (in its selling/barteringsense) and commerce interchangeably." Lopez, supra, at586 (THOMAS, J., concurring). The term "commerce" didnot include economic activity such as "manufacturing andagriculture," ibid., let alone noneconomic activity such asadoption of children. Furthermore, the term "commerce with Indian tribes"was invariably used during the time of the founding tomean " '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 theContinental 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 THOMAS, J., concurring Indians). And regulation of Indian commerce generallyreferred to legal structures governing "the conduct ofthe merchants engaged in the Indian trade, the nature of thegoods they sold, the prices charged, and similar matters."Natelson 216, and n. 99. The Indian Commerce Clause contains an additionaltextual limitation relevant to this case: Congress is giventhe power to regulate Commerce "with the Indian tribes."The Clause does not give Congress the power to regulatecommerce with all Indian persons any more than theForeign Commerce Clause gives Congress the power toregulate commerce with all foreign nationals travelingwithin the United States. A straightforward reading ofthe text, thus, confirms that Congress may only regulatecommercial interactions-"commerce"-taking place withestablished Indian communities-"tribes." That power isfar from "plenary." B

Congress' assertion of "plenary power" over Indianaffairs is also inconsistent with the history of the IndianCommerce Clause. At the time of the founding, the Clausewas understood to reserve to the States general policepowers with respect to Indians who were citizens of theseveral States. The Clause instead conferred on Congressthe much narrower power to regulate trade with Indiantribes-that is, Indians who had not been incorporatedinto the body-politic of any State. 1

Before the Revolution, most Colonies adopted their ownregulations governing Indian trade. See Natelson 219,and n. 121 (citing colonial laws). Such regulations werenecessary because colonial traders all too often abusedtheir Indian trading partners, through fraud, exorbitantprices, extortion, and physical invasion of Indian territory, 5 6 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring among other things. See 1 F. Prucha, The Great Father18-20 (1984) (hereinafter Prucha); Natelson 220, and

n. 122. These abuses sometimes provoked violent Indianretaliation. See Prucha 20. To mitigate these conflicts,most Colonies extensively regulated traders engaged incommerce with Indian tribes. See e.g., Ordinance to Regulate Indian Affairs, Statutes of South Carolina (Aug. 31,1751), in 16 Early American Indian Documents: Treatiesand Laws, 1607-1789, pp. 331-334 (A. Vaughan and

D. Rosen eds. 1998).1 Over time, commercial regulation atthe colonial level proved largely ineffective, in part because "[t]here was no uniformity among the colonies, notwo sets of like regulations." Prucha 21. Recognizing the need for uniform regulation of tradewith the Indians, Benjamin Franklin proposed his own"articles of confederation" to the Continental Congress onJuly 21, 1775, which reflected his view that central controlover Indian affairs should predominate over local control.

2 J. Cont'l Cong. 195-199 (W. Ford ed. 1905). Franklin'sproposal was not enacted, but in November 1775, Congress empowered a committee to draft regulations forthe Indian trade. 3 id., at 364, 366. On July 12, 1776, thecommittee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin'sproposals. 5 id., at 545, 546, n. 1. The draft prohibitedStates from waging offensive war against the Indianswithout congressional authorization and granted Congress ------ 1 South Carolina, for example, required traders to be licensed, to be ofgood moral character, and to post a bond. Ordinance to RegulateIndian Affairs, in 16 Early American Indian Documents, at 331-334. Apotential applicant's name was posted publicly before issuing thelicense, 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. 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 . . . Regulatingthe Trade, and managing all Affairs with the Indians." 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 theIndians." Id., at 672, 681-682. Some delegates fearedthat the Articles gave Congress excessive power to interfere with States' jurisdiction over affairs with Indiansresiding within state boundaries. After further deliberation, the final result was a clause that included a broadgrant of congressional authority with two significantexceptions: "The United States in Congress assembledshall also have the sole and exclusive right and power of

. . . regulating the trade and managing all affairs with theIndians, not members of any of the States, provided thatthe legislative right of any State within its own limits benot 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 relationswith Member-Indians;2 and Congress and the States "exercise[d] concurrent jurisdiction over transactions withtribal Indians within state boundaries, but congressionaldecisions 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 ifthey paid taxes or were citizens, see Natelson 230, the precise definition of the term was "not yet settled" at the time of the foundingand was "a question of frequent perplexity and contention in the federal councils," The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J.Madison). 7 8 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring tion reveals the delegates' concern with protecting thepower of the States to regulate Indian persons who werepolitically incorporated into the States. This concernfor state power reemerged during the drafting of theConstitution. 2

The drafting history of the Constitutional Conventionalso supports a limited construction of the Indian Commerce Clause. On July 24, 1787, the convention electeda drafting committee-the Committee of Detail-andcharged it to "report a Constitution conformable to the Resolutions passed by the Convention." 2 Records of theFederal Convention of 1787, p.106 (M. Farrand rev. 1966)

(J. Madison). During the Committee's deliberations, JohnRutledge, 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 regulatecommerce with foreign nations, and among the severalStates," id., at 181 (Madison) (Aug. 6, 1787), but did notinclude any specific Indian affairs clause. On August 18,James Madison proposed that the Federal Government begranted several additional powers, including the power"[t]o regulate affairs with the Indians as well within aswithout the limits of the U. States." Id., at 324 (J. Madison) (emphasis added). On August 22, Rutledge deliveredthe Committee of Detail's second report, which modifiedMadison's proposed clause. The Committee proposed toadd to Congress' power "[t]o regulate commerce withforeign nations, and among the several States" the words,"and with Indians, within the Limits of any State, notsubject to the laws thereof." Id., at 366-367 (Journal).The Committee's version, which echoed the Articles ofConfederation, was far narrower than Madison's proposal.On August 31, the revised draft was submitted to a Com-THOMAS, J., concurring mittee of Eleven for further action. Id., at 473 (Journal),481 (J. Madison). That Committee recommended addingto the Commerce Clause the phrase, "and with the Indiantribes," id., at 493, which the Convention ultimatelyadopted.It is, thus, clear that the Framers of the Constitutionwere alert to the difference between the power to regulatetrade with the Indians and the power to regulate all Indian affairs. By limiting Congress' power to the former, theFramers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation. See Prakash, Against Tribal Fungibility, 89Cornell L. Rev. 1069, 1090 (2004).During the ratification debates, opposition to the IndianCommerce Clause was nearly nonexistent. See Natelson248 (noting that Robert Yates, a New York Anti-Federalistwas "almost the only writer who objected to any part [of]of the Commerce Clause-a clear indication that its scopewas understood to be fairly narrow" (footnote omitted)).Given the Anti-Federalists' vehement opposition to theConstitution's other grants of power to the Federal Government, this silence is revealing. The ratifiers almostcertainly understood the Clause to confer a relativelymodest power on Congress-namely, the power to regulatetrade with Indian tribes living beyond state borders. Andthis feature of the Constitution was welcomed by Federalists and Anti-Federalists alike due to the considerableinterest in expanding trade with such Indian tribes. See,e.g., The Federalist No. 42, at 265 (J. Madison) (praisingthe Constitution for removing the obstacles that hadexisted under the Articles of Confederation to federalcontrol over "trade with Indians" (emphasis added)); 3 J.Elliot, The Debates in the Several State Conventions onthe 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 9 10 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring the Mississippi and "the variety of articles which might beobtained to advantage by trading with these people"); TheFederalist No. 24, at 158 (A. Hamilton) (arguing thatfrontier garrisons would "be keys to the trade with theIndian nations"); Brutus, (Letter) X, N. Y. J., Jan. 24,1788, in 15 The Documentary History of the Ratification ofthe Constitution 462, 465 (J. Kaminski & G. Saladino eds.2012) (conceding that there must be a standing army forsome purposes, including "trade with Indians"). There islittle evidence that the ratifiers of the Constitution understood the Indian Commerce Clause to confer anythingresembling plenary power over Indian affairs. See Natelson 247-250


In light of the original understanding of the IndianCommerce Clause, the constitutional problems that wouldbe 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 toconcerns that "an alarmingly high percentage of Indianfamilies [were] broken up by the removal, often unwar-ranted, of their children from them by nontribal publicand private agencies." §1901(4). The perceived problemwas that many Indian children were "placed in non-Indianfoster and adoptive homes and institutions." Ibid. Thisproblem, however, had nothing to do with commerce. Second, the portions of the ICWA at issue here do notregulate 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 tribeis involved. This case thus does not directly implicateCongress' power to "legislate in respect to Indian tribes."United States v. Lara, 541 U. S. 193, 200 (2004) (emphasisadded). Baby Girl was never domiciled on an IndianReservation, and the Cherokee Nation had no jurisdiction THOMAS, J., concurring over her. Cf. Mississippi Band of Choctaw Indians v.Holyfield, 490 U. S. 30, 53-54 (1989) (holding that theIndian Tribe had exclusive jurisdiction over child custodyproceedings, even though the children were born off thereservation, because the children were "domiciled" on thereservation for purposes of the ICWA). Although BirthFather is a registered member of The Cherokee Nation, hedid not live on a reservation either. He was, thus, subjectto the laws of the State in which he resided (Oklahoma)and of the State where his daughter resided during thecustody proceedings (South Carolina). Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of hisstatus as an Indian.3 Because adoption proceedings like this one involveneither "commerce" nor "Indian tribes," there is simply noconstitutional basis for Congress' assertion of authorityover such proceedings. Also, the notion that Congress candirect state courts to apply different rules of evidence andprocedure merely because a person of Indian descent isinvolved raises absurd possibilities. Such plenary powerwould allow Congress to dictate specific rules of criminalprocedure for state-court prosecutions against Indiandefendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputesinvolve Indians. But the Constitution does not grantCongress power to override state law whenever that law ------ 3 Petitioners and the guardian ad litem contend that applying theICWA to child custody proceedings on the basis of race implicates equalprotection concerns. See Brief for Petitioners 45 (arguing that thestatute would be unconstitutional "if unwed fathers with no preexistingsubstantive parental rights receive a statutory preference based solelyon the Indian child's race"); Brief for Respondent Guardian Ad Litem48-49 (same). I need not address this argument because I am satisfiedthat Congress lacks authority to regulate the child custody proceedingsin this case. 11 12 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring happens to be applied to Indians. Accordingly, applicationof the ICWA to these child custody proceedings would beunconstitutional. * * *

Because the Court's plausible interpretation of therelevant sections of the ICWA avoids these constitutionalproblems, I concur. BREYER, J., concurring 1 SUPREME COURT OF THE UNITED STATES _________________ _________________

ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,A MINOR CHILD UNDER THE AGE OFFOURTEEN YEARS, ET AL.ON WRIT OF CERTIORARI TO THE SUPREME COURT OFSOUTH 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 withhis child in the first few months of her life. That categoryof fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a rangeof others in between. Most of those who fall within thatcategory seem to fall outside the scope of the language of

25 U. S. C. §§1912(d) and (f ). Thus, while I agree that thebetter 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, theCourt'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 childsupport obligations." See post, at 13. Neither does it involvespecial circumstances such as a father who was deceivedabout the existence of the child or a father who was prevented from supporting his child. See post, at 13 n. 8. TheCourt need not, and in my view does not, now decidewhether 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 maynonetheless prove relevant in cases of this kind. Section1915(a) grants an adoptive "preference" to "(1) a memberof the child's extended family; (2) other members of theIndian child's tribe; or (3) other Indian families . . . . in theabsence of good cause to the contrary." Further, §1915(c)allows the "Indian child's tribe" to "establish a differentorder of preference by resolution." Could these provisionsallow an absentee father to re-enter the special statutoryorder of preference with support from the tribe, and subject to a court's consideration of "good cause?" I raise, butdo not here try to answer, the question. SCALIA, J., dissenting 1

SUPREME COURT OF THE UNITED STATES _________________ _________________

ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,A MINOR CHILD UNDER THE AGE OFFOURTEEN YEARS, ET AL.ON WRIT OF CERTIORARI TO THE SUPREME COURT OFSOUTH CAROLINA[June 25, 2013]JUSTICE SCALIA, dissenting. I join JUSTICE SOTOMAYOR's dissent except as to onedetail. I reject the conclusion that the Court draws fromthe words "continued custody" in 25 U. S. C §1912(f) notbecause "literalness may strangle meaning," see post, at11, but because there is no reason that "continued" mustrefer to custody in the past rather than custody in thefuture. I read the provision as requiring the court tosatisfy itself (beyond a reasonable doubt) not merely thatinitial or temporary custody is not "likely to result inserious emotional or physical damage to the child," butthat 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 forthin JUSTICE SOTOMAYOR's dissent, that connotation is muchmore in accord with the rest of the statute. While I am at it, I will add one thought. The Court'sopinion, it seems to me, needlessly demeans the rights ofparenthood. It has been the constant practice of the common law to respect the entitlement of those who bring achild into the world to raise that child. We do not inquirewhether leaving a child with his parents is "in the bestinterest 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 theirrights, no less than children do. This father wants to raisehis daughter, and the statute amply protects his right todo so. There is no reason in law or policy to dilute thatprotection. SOTOMAYOR, J., dissenting 1

SUPREME COURT OF THE UNITED STATES _________________ _________________

ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,A MINOR CHILD UNDER THE AGE OFFOURTEEN YEARS, ET AL.ON WRIT OF CERTIORARI TO THE SUPREME COURT OFSOUTH 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 forgivenfor thinking this an easy case, one in which the text of theapplicable statute clearly points the way to the only sensible result. In truth, however, the path from the text ofthe Indian Child Welfare Act of 1978 (ICWA) to the result theCourt reaches is anything but clear, and its result anything but right.The reader's first clue that the majority's supposedlystraightforward reasoning is flawed is that not all Members who adopt its interpretation believe it is compelled bythe text of the statute, see ante, at 1 (THOMAS, J., concurring); nor are they all willing to accept the consequencesit will necessarily have beyond the specific factual scenario confronted here, see ante, at 1 (BREYER, J., concurring).The second clue is that the majority begins its analysis byplucking out of context a single phrase from the last clauseof the last subsection of the relevant provision, and thenbuilds its entire argument upon it. That is not how weordinarily read statutes. The third clue is that the majority openly professes its aversion to Congress' explicitlystated 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 itsays will make it more difficult to place Indian children inadoptive homes, see ante, at 14, 16, but the Congress thatenacted the statute announced its intent to stop "analarmingly 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' judgment is not a valid reason for this Court to distort the provisions of the Act. Unlike the majority, I cannot adopta reading of ICWA that is contrary to both its text and itsstated purpose. I respectfully dissent


Beginning its reading with the last clause of §1912(f ),the majority concludes that a single phrase appearingthere-"continued custody"-means that the entirety ofthe subsection is inapplicable to any parent, howevercommitted, who has not previously had physical or legalcustody of his child. Working back to front, the majoritythen concludes that §1912(d), tainted by its associationwith §1912(f ), is also inapplicable; in the majority's view,a family bond that does not take custodial form is not afamily bond worth preserving from "breakup." Becausethere are apparently no limits on the contaminating powerof this single phrase, the majority does not stop there.Under its reading, §1903(9), which makes biological fathers "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 physical or state-recognized legal custody of his daughter.When it excludes noncustodial biological fathers fromthe Act's substantive protections, this textually backwardreading misapprehends ICWA's structure and scope.Moreover, notwithstanding the majority's focus on the perceived parental shortcomings of Birth Father, its rea­SOTOMAYOR, J., dissenting soning necessarily extends to all Indian parents who havenever had custody of their children, no matter how fullythose parents have embraced the financial and emotionalresponsibilities of parenting. The majority thereby transforms a statute that was intended to provide uniformfederal standards for child custody proceedings involvingIndian children and their biological parents into an illogical piecemeal scheme


Better to start at the beginning and consider the operation of the statute as a whole. Cf. ante, at 13 ("[S]tatutoryconstruction 'is a holistic endeavor[,]' and . . . '[a] provisionthat may seem ambiguous in isolation is often clarified bythe remainder of the statutory scheme' " (quoting UnitedSav. Assn. of Tex. v. Timbers of Inwood Forest Associates,Ltd., 484 U. S. 365, 371 (1988))). ICWA commences with express findings. Congress recognized that "there is no resource that is more vital tothe continued existence and integrity of Indian tribes thantheir children," 25 U. S. C. §1901(3), and it found that thisresource was threatened. State authorities insufficientlysensitive to "the essential tribal relations of Indian peopleand the cultural and social standards prevailing in Indiancommunities and families" were breaking up Indian families and moving Indian children to non-Indian homes andinstitutions. See §§1901(4)-(5). As §1901(4) makes clear,and as this Court recognized in Mississippi Band ofChoctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989),adoptive placements of Indian children with non-Indianfamilies contributed significantly to the overall problem. See§1901(4) (finding that "an alarmingly high percentage of[Indian] children are placed in non-Indian . . . adoptivehomes").Consistent with these findings, Congress declared itspurpose "to protect the best interests of Indian children 3 4 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting and to promote the stability and security of Indian tribesand families by the establishment of minimum Federalstandards" applicable to child custody proceedings involving Indian children. §1902. Section 1903 then goes on toestablish the reach of these protections through its definitional provisions. For present purposes, two of thesedefinitions are crucial to understanding the statute's fullscope.First, ICWA defines the term "parent" broadly to mean"any biological parent . . . of an Indian child or any Indian person who has lawfully adopted an Indian child."§1903(9). It is undisputed that Baby Girl is an "Indianchild" within the meaning of the statute, see §1903(4);ante, at 2, n. 1, and Birth Father consequently qualifiesas a "parent" under the Act. The statutory definition ofparent "does not include the unwed father where paternityhas not been acknowledged or established," §1903(9), butBirth Father's biological paternity has never been questioned by any party and was confirmed by a DNA testduring the state court proceedings, App. to Pet. for Cert.109a (Sealed).Petitioners and Baby Girl's guardian ad litem devotemany pages of briefing to arguing that the term "parent"should be defined with reference to the law of the State inwhich an ICWA child custody proceeding takes place. SeeBrief for Petitioners 19-29; Brief for Respondent GuardianAd Litem 32-41. These arguments, however, are inconsistent with our recognition in Holyfield that Congressintended the critical terms of the statute to have uniformfederal definitions. See 490 U. S., at 44-45. It is thereforeunsurprising, although far from unimportant, that themajority assumes for the purposes of its analysis thatBirth Father is an ICWA "parent." See ante, at 7. Second, the Act's comprehensive definition of "childcustody proceeding" includes not only " 'adoptive place­ment[s],' " " 'preadoptive placement[s],' " and " 'foster care 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 parent-child relationship," §1903(1)(ii) (emphasis added). So far,then, it is clear that Birth Father has a federally recognized status as Baby Girl's "parent" and that his "parent­child relationship" with her is subject to the protections ofthe Act. These protections are numerous. Had Birth Fatherpetitioned to remove this proceeding to tribal court, forexample, the state court would have been obligated totransfer it absent an objection from Birth Mother or goodcause to the contrary. See §1911(b). Any voluntary consent Birth Father gave to Baby Girl's adoption would havebeen invalid unless written and executed before a judgeand would have been revocable up to the time a finaldecree of adoption was entered.1 See §§1913(a), (c). And§1912, the center of the dispute here, sets forth proceduraland substantive standards applicable in "involuntaryproceeding[s] in a State court," including foster careplacements of Indian children and termination of parental rights proceedings. §1912(a). I consider §1912's provisions in order. Section 1912(a) requires that any party seeking "termination of parental rights t[o] an Indian child" providenotice to both the child's "parent or Indian custodian"and the child's tribe "of the pending proceedings and oftheir right of intervention." Section 1912(b) mandatesthat counsel be provided for an indigent "parent or Indian custodian" in any "termination proceeding." Section ------ 1 For this reason, the South Carolina Supreme Court held that BirthFather did not give valid consent to Baby Girl's adoption when, fourmonths after her birth, he signed papers stating that he acceptedservice 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 donot challenge this aspect of the South Carolina court's holding. 5 6 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting 1912(c) also gives all "part[ies]" to a termination proceed­ing-which, thanks to §§1912(a) and (b), will always include a biological father if he desires to be present-theright to inspect all material "reports or other documentsfiled with the court." By providing notice, counsel, andaccess to relevant documents, the statute ensures a biological father's meaningful participation in an adoption proceeding where the termination of his parental rights is atissue. These protections are consonant with the principle,recognized in our cases, that the biological bond betweenparent and child is meaningful. "[A] natural parent'sdesire for and right to the companionship, care, custody,and management of his or her children," we have explained, "is an interest far more precious than any property 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 theprotection of a biological father's parent-child relationshipuntil he has taken steps to cultivate it, this Court hasnevertheless recognized that "the biological connection . . .offers the natural father an opportunity that no othermale possesses to develop a relationship with his offspring." Lehr v. Robertson, 463 U. S. 248, 262 (1983).Federal recognition of a parent-child relationship betweena birth father and his child is consistent with ICWA'spurpose of providing greater protection for the familialbonds between Indian parents and their children thanstate law may afford.The majority does not and cannot reasonably disputethat ICWA grants biological fathers, as "parent[s]," theright to be present at a termination of parental rightsproceeding and to have their views and claims heardthere.2 But the majority gives with one hand and takes ------ 2 Petitioners concede that, assuming Birth Father is a "parent" under SOTOMAYOR, J., dissenting away with the other. Having assumed a uniform federaldefinition of "parent" that confers certain proceduralrights, the majority then illogically concludes that ICWA'ssubstantive protections are available only to a subset of"parent[s]": those who have previously had physical orstate-recognized legal custody of his or her child. Thestatute does not support this departure.Section 1912(d) provides that "Any party seeking to effect a foster care placementof, or termination of parental rights to, an Indian childunder State law shall satisfy the court that activeefforts have been made to provide remedial servicesand rehabilitative programs designed to prevent thebreakup of the Indian family and that these effortshave proved unsuccessful." (Emphasis added.) In other words, subsection (d) requires that an attemptbe made to cure familial deficiencies before the drasticmeasures of foster care placement or termination of parental rights can be taken. The majority would hold that the use of the phrase"breakup of the Indian family" in this subsection meansthat it does not apply where a birth father has not previously had custody of his child. Ante, at 12. But there isnothing about this capacious phrase that licenses such anarrowing construction. As the majority notes, "breakup"means " '[t]he discontinuance of a relationship.' " Ante, at12 (quoting American Heritage Dictionary 235 (3d ed.1992)). So far, all of §1912's provisions expressly apply inactions aimed at terminating the "parent-child relationship" that exists between a birth father and his child, andthey extend to it meaningful protections. As a logicalmatter, 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. 13.7 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 excludedfrom the category of familial "relationships" that the provision aims to save from "discontinuance." The majority, reaching the contrary conclusion, assertsbaldly that "when an Indian parent abandons an Indianchild prior to birth and that child has never been in theIndian parent's legal or physical custody, there is no 'relationship' that would be 'discontinu[ed]' . . . by the termination of the Indian parent's rights." Ante, at 12. Says who?Certainly not the statute. Section 1903 recognizes BirthFather as Baby Girl's "parent," and, in conjunction withICWA'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 nowarrant to substitute its own policy views for Congress' bysaying that "no 'relationship' " exists between Birth Fatherand Baby Girl simply because, based on the hotly contested facts of this case, it views their family bond as insufficiently 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 BirthFather'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 islimited to such circumstances, see ante, at 13, n. 8; see also ante, at 1(BREYER, J., concurring). While I would welcome any limitations on themajority's holding given that it is contrary to the language and purposeof the statute, the majority never explains either the textual basis orthe precise scope of its "abandon[ment]" limitation. I expect that themajority'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 doesnot have a uniform meaning from State to State. See generally 1 J.Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussingvarious state-law standards for establishing parental abandonment ofa child). SOTOMAYOR, J., dissenting §1912(e) and §1912(f )," both of which use the phrase " 'continued custody.' " Ante, at 13. This is the only aspect ofthe majority's argument regarding §1912(d) that is basedon ICWA's actual text rather than layers of assertion superimposed on the text; but the conclusion the majoritydraws from the juxtaposition of these provisions is exactlybackward. Section 1912(f ) is paired with §1912(e), and as the majority notes, both come on the heels of the requirement ofrehabilitative efforts just reviewed. The language of thetwo provisions is nearly identical; subsection (e) is headed"Foster care placement orders," and subsection (f ), therelevant provision here, is headed "Parental rights termination orders." Subsection (f ) reads in its entirety, "No termination of parental rights may be orderedin such proceeding in the absence of a determination,supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, thatthe continued custody of the child by the parent or Indian custodian is likely to result in serious emotionalor physical damage to the child." §1912(f ).4 The immediate inference to be drawn from the statute'sstructure is that subsections (e) and (f ) work in tandemwith the rehabilitative efforts required by (d). Undersubsection (d), state authorities must attempt to provide"remedial services and rehabilitative programs" aimed atavoiding foster care placement or termination of parentalrights; (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 inthe absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that thecontinued custody of the child by the parent or Indian custodian islikely to result in serious emotional or physical damage to the child."§1912(e). 9 10 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting ing foster care or terminating parental rights until thesecurative efforts have failed and it is established that thechild will suffer "serious emotional or physical damage" ifhis or her familial situation is not altered. Nothing insubsections (a) through (d) suggests a limitation on thetypes of parental relationships that are protected by any ofthe provisions of §1912, and there is nothing in the structure of §1912 that would lead a reader to expect subsection

(e) or (f ) to introduce any such qualification. Indeed, bothsubsections, in their opening lines, refer back to the priorprovisions of §1912 with the phrase "in such proceeding."This language indicates, quite logically, that in actionswhere subsections (a), (b), (c), and (d) apply, (e) and (f )apply too.5 All this, and still the most telling textual evidence is yetto come: The text of the subsection begins by announcing,"[n]o termination of parental rights may be ordered" unless the specified evidentiary showing is made. To repeat,a "termination of parental rights" includes "any actionresulting in the termination of the parent-child relationship," 25 U. S. C. §1903(1)(ii) (emphasis added), including the relationship Birth Father, as an ICWA "parent,"has with Baby Girl. The majority's reading disregardsthe Act's sweeping definition of "termination of parentalrights," which is not limited to terminations of custodialrelationships.The entire foundation of the majority's argument that ------ 5 For these reasons, I reject the argument advanced by the UnitedStates that subsection (d) applies in the circumstances of this case butsubsection (f ) does not. See Brief for United States as Amicus Curiae24-26. The United States' position is contrary to the interrelatednature of §§1912(d), (e), and (f ). Under the reading that the UnitedStates proposes, in a case such as this one the curative provision wouldstand alone; ICWA would provide no evidentiary or substantive standards by which to measure whether foster care placement or terminationof parental rights could be ordered in the event that rehabilitativeefforts did not succeed. Such a scheme would be oddly incomplete. SOTOMAYOR, J., dissenting subsection (f ) does not apply is the lonely phrase "continued custody." It simply cannot bear the interpretiveweight 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 neverhad custody of the Indian child," ante, at 8. Emphasizingthat Birth Father never had physical custody or, understate law, legal custody of Baby Girl, the majority findsthe statute inapplicable here. Ante, at 10-11. But "literalness 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 thatmay "[a]t first blush" seem unambiguous can prove otherwise when examined in the context of the statute as awhole).6 In light of the structure of §1912, which indicatesthat subsection (f ) is applicable to the same actions towhich subsections (a) through (d) are applicable; the use ofthe phrase "such proceeding[s]" at the start of subsection(f ) to reinforce this structural inference; and finally, theprovision's explicit statement that it applies to "termination of parental rights" proceedings, the necessary conclusion is that the word "custody" does not strictly denote astate-recognized custodial relationship. If one refers backto the Act's definitional section, this conclusion is notsurprising. Section 1903(1) includes "any action resultingin the termination of the parent-child relationship" withinthe meaning of "child custody proceeding," thereby belyingany congressional intent to give the term "custody" anarrow and exclusive definition throughout the statute. ------ 6 The majority's interpretation is unpersuasive even if one focusesexclusively on the phrase "continued custody" because, as JUSTICE SCALIA explains, ante, at 1 (dissenting opinion), nothing about theadjective "continued" mandates the retrospective, rather than prospective, application of §1912(f )'s standard. 11 12 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting In keeping with §1903(1) and the structure and language of §1912 overall, the phrase "continued custody" ismost sensibly read to refer generally to the continuation ofthe parent-child relationship that an ICWA "parent" haswith his or her child. A court applying §1912(f ) where theparent does not have pre-existing custody should, as BirthFather argues, determine whether the party seeking termination of parental rights has established that the continuation 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 argument, that Birth Father is a "parent" within the meaningof ICWA. But the majority fails to account for all thatfollows from that assumption. The majority repeatedlypasses over the term "termination of parental rights" that,as defined by §1903, clearly encompasses an action aimedat severing Birth Father's "parent-child relationship" withBaby Girl. The majority chooses instead to focus onphrases not statutorily defined that it then uses to excludeBirth Father from the benefits of his parental status.When one must disregard a statute's use of terms thathave been explicitly defined by Congress, that should be asignal that one is distorting, rather than faithfully reading, the law in question


The majority also does not acknowledge the full impli------ 7 The majority overlooks Birth Father's principal arguments when itdismisses his reading of §1912(f ) as "nonsensical." Ante, at 8. He doesargue that if one accepts petitioners' view that it is impossible to makea determination of likely harm when a parent lacks custody, then theconsequence would be that " '[n]o termination of parental rights may beordered.' " Brief for Respondent Birth Father 39 (quoting §1912(f )).But Birth Father's primary arguments assume that it is indeed possibleto make a determination of likely harm in the circumstances of thiscase, and that parental rights can be terminated if §1912(f ) is met. Seeid., at 40-42. SOTOMAYOR, J., dissenting cations of its assumption that there are some ICWA"parent[s]" to whom §§1912(d) and (f ) do not apply. Its discussion focuses on Birth Father's particular actions, butnothing in the majority's reasoning limits its manufactured class of semiprotected ICWA parents to biologicalfathers who failed to support their child's mother duringpregnancy. Its logic would apply equally to noncustodialfathers who have actively participated in their child'supbringing.Consider an Indian father who, though he has never hadcustody of his biological child, visits her and pays all of hischild support obligations.8 Suppose that, due to deficien------ 8 The majority attempts to minimize the consequences of its holdingby asserting that the parent-child relationships of noncustodial fatherswith 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 nosupport for this assertion, beyond speculating that there will not bemany fathers affected by its interpretation of §1912(d) because it isqualified by an "abandon[ment]" limitation. Ibid. Tellingly, the majority has nothing to say about §1912(f ), despite the fact that its interpretation of that provision is not limited in a similar way. In any event,this example by no means exhausts the class of semiprotected ICWAparents that the majority's opinion creates. It also includes, for example, biological fathers who have not yet established a relationship withtheir child because the child's mother never informed them of thepregnancy, see, e.g., In re Termination of Parental Rights of BiologicalParents of Baby Boy W., 1999 OK 74, 988 P. 2d 1270, told them falselythat the pregnancy ended in miscarriage or termination, see, e.g., AChild's Hope, LLC v. Doe, 178 N. C. App. 96, 630 S. E. 2d 673 (2006), orotherwise 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 mothermoved and did not inform father of her whereabouts); In re Petition ofDoe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancyexpenses until birth mother cut off contact with him and told him thattheir child had died shortly after birth). And it includes biologicalfathers who did not contribute to pregnancy expenses because theywere unable to do so, whether because the father lacked sufficientmeans, the expenses were covered by a third party, or the birth motherdid 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. 13 14 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting cies in the care the child received from her custodialparent, the State placed the child with a foster familyand proposed her ultimate adoption by them. Clearly,the father's parental rights would have to be terminatedbefore the adoption could go forward.9 On the majority'sview, notwithstanding the fact that this father would bea "parent" under ICWA, he would not receive the benefitof either §1912(d) or §1912(f ). Presumably the court considering the adoption petition would have to apply somestandard to determine whether termination of his parental rights was appropriate. But from whence would thatstandard come? Not from the statute Congress drafted, according to themajority. The majority suggests that it might come fromstate law. See ante, at 13, n. 8. But it is incongruous tosuppose that Congress intended a patchwork of federaland state law to apply in termination of parental rightsproceedings. Congress enacted a statute aimed at protect­------ The majority expresses the concern that my reading of the statutewould produce "far-reaching consequences," because "even a spermdonor" would be entitled to ICWA's protections. Ante, at 13-14, n. 8. Ifthere are any examples of women who go to the trouble and expense ofartificial insemination and then carry the child to term, only to put thechild up for adoption or be found so unfit as mothers that state authorities attempt an involuntary adoptive placement-thereby necessitatingtermination of the parental rights of the sperm donor father-the majority does not cite them. As between a possibly overinclusive interpretation of the statute that covers this unlikely class of cases, andthe majority's underinclusive interpretation that has the very realconsequence of denying ICWA's protections to all noncustodial biological fathers, it is surely the majority's reading that is contrary to ICWA'sdesign. 9 With a few exceptions not relevant here, before a final decree ofadoption may be entered, one of two things must happen: "the biologicalparents must either voluntarily relinquish their parental rights or havetheir rights involuntarily terminated." 2A. Haralambie, HandlingChild Custody, Abuse and Adoption Cases §14.1, pp.764-765 (3d ed.2009) (footnote omitted). SOTOMAYOR, J., dissenting ing the familial relationships between Indian parents andtheir children because it concluded that state authorities"often failed to recognize the essential tribal relations ofIndian people and the cultural and social standards prevailing 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 moredemanding than the showing of unfitness under a high"clear and convincing evidence" standard that is the normin the States, see 1 J. Hollinger, Adoption Law and Practice §2.10 (2012); Santosky, 455 U. S., at 767-768. While some States might provide protections comparable to §1912(d)'s required remedial efforts and §1912(f )'sheightened standard for termination of parental rights,many will provide less. There is no reason to believeCongress wished to leave protection of the parental rightsof a subset of ICWA "parent[s]" dependent on the happen­stance of where a particular "child custody proceeding"takes place. I would apply, as the statute construed inits totality commands, the standards Congress providedin §§1912(d) and (f ) to the termination of all ICWA"parent[s']" parent-child relationships


The majority's textually strained and illogical reading ofthe statute might be explicable, if not justified, if therewere reason to believe that it avoided anomalous resultsor furthered a clear congressional policy. But neither ofthese conditions is present here


With respect to §1912(d), the majority states that itwould be "unusual" to apply a rehabilitation requirementwhere a natural parent has never had custody of his child.Ante, at 14. The majority does not support this bare assertion, and in fact state child welfare authorities can and do 15 16 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting provide reunification services for biological fathers whohave not previously had custody of their children.10 Andnotwithstanding the South Carolina Supreme Court's imprecise interpretation of the provision, see 398 S. C., at647-648, 731 S. E. 2d, at 562, §1912(d) does not requirethe prospective adoptive family to themselves undertakethe mandated rehabilitative efforts. Rather, it requires theparty seeking termination of parental rights to "satisfythe court that active efforts have been made" to provideappropriate remedial services. In other words, the prospective adoptive couple have tomake an evidentiary showing, not undertake person-to­person remedial outreach. The services themselves mightbe attempted by the Indian child's Tribe, a state agency,or a private adoption agency. Such remedial efforts area familiar requirement of child welfare law, including federal child welfare policy. See 42 U. S. C. §671(a)(15)(B)(requiring States receiving federal funds for foster careand adoption assistance to make "reasonable efforts . . . topreserve and reunify families" prior to foster care placement or removal of a child from its home). ------ 10 See, 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' orderreunification services for a biological father if the court determines thatthe 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 servicesprovided to biological father beginning when "he had yet to establishhis paternity" under state law, including efforts to facilitate visitationand involving father in family " 'team meetings' "); In re Guardianshipof DMH, 161 N. J. 365, 391-394, 736 A. 2d 1261, 1275-1276 (1999)(discussing what constitutes "reasonable efforts" to reunify a noncusto­dial biological father with his children in accordance with New Jerseystatutory requirements); In re Bernard T., 319 S. W. 3d 586, 600 (Tenn.2010) (stating that "in appropriate circumstances, the Department [ofChildren's Services] must make reasonable efforts to reunite a childwith his or her biological parents or legal parents or even with thechild's putative biological father"). SOTOMAYOR, J., dissenting There is nothing "bizarre," ante, at 14, about placing onthe party seeking to terminate a father's parental rightsthe burden of showing that the step is necessary as well asjustified. "For . . . natural parents, . . . the consequence ofan erroneous termination [of parental rights] is the unnecessary destruction of their natural family." Santosky,455 U. S., at 766. In any event, the question is a nonissuein this case given the family court's finding that BirthFather is "a fit and proper person to have custody of hischild" who "has demonstrated [his] ability to parent effectively" and who possesses "unwavering love for this child."App. to Pet. for Cert. 128a (Sealed). Petitioners cannotshow that rehabilitative efforts have "proved unsuccessful," 25 U. S. C. §1912(d), because Birth Father is not inneed of rehabilitation.11 B

On a more general level, the majority intimates thatICWA grants Birth Father an undeserved windfall: in themajority's words, an "ICWA trump card" he can "play . . .at the eleventh hour to override the mother's decision andthe child's best interests." Ante, at 16. The implicit argument is that Congress could not possibly have intended torecognize a parent-child relationship between Birth Father and Baby Girl that would have to be legally terminated (either by valid consent or involuntary termination)before the adoption could proceed.------11 The majority's concerns about what might happen if no state ortribal authority stepped in to provide remedial services are thereforeirrelevant here. Ante, at 14, n. 9. But as a general matter, if a parenthas rights that are an obstacle to an adoption, the state- and federal­law safeguards of those rights must be honored, irrespective of prospective adoptive parents' understandable and valid desire to see theadoption finalized. "We must remember that the purpose of an adoption is to provide a home for a child, not a child for a home." In rePetition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190 (Heiple, J,.supplemental opinion supporting denial of rehearing). 17 18 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting But this supposed anomaly is illusory. In fact, the lawof at least 15 States did precisely that at the time ICWAwas passed.12 And the law of a number of States still doesso. The State of Arizona, for example, requires that noticeof 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). InWashington, an "alleged father['s]" consent to adoptionis 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 showingby clear, cogent, and convincing evidence" not only thattermination is in the best interest of the child and that the ------ 12 See 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 (West1977) (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 ifpaternity 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'sconsent required if mother identifies him or if paternity is judiciallyestablished); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-MerrillSupp. 1980) (same); Ala. Code §26-10-3 (Michie 1977) (natural father'sconsent required when paternity judicially established); Minn. Stat.§§259.24(a), 259.26(3)(a), (e), (f ), 259.261 (1978) (natural father'sconsent required when identified on birth certificate, paternity judicially 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 noticeof intent to claim paternity within set time from notice of prospectiveadoption); Wash. Rev. Code §§26.32.040(5), 26.32.085 (1976) (naturalfather's consent required if paternity acknowledged, judicially established, or he files notice of intent to claim paternity within set timefrom notice of prospective adoption); W. Va. Code Ann. §48-4-1 (MichieSupp. 1979) (natural father's consent required if father admits paternity by any means). See also Del. Code Ann., Tit. 13, §908(2) (MichieSupp. 1980) (natural father's consent required unless court finds thatdispensing with consent requirement is in best interests of the child);Wyo. Stat. Ann. §§1-22-108, 1-22-109 (Michie 1988) (same). SOTOMAYOR, J., dissenting father is withholding his consent to adoption contrary tochild's best interests, but also that the father "has failedto perform parental duties under circumstances showinga substantial lack of regard for his parental obligations,"§26.33.120(2).13 Without doubt, laws protecting biological fathers' parental rights can lead-even outside the context of ICWA-tooutcomes that are painful and distressing for both would­be adoptive families, who lose a much wanted child, andchildren who must make a difficult transition. See, e.g.,In re Adoption of Tobias D., 2012 Me. 45, ¶27, 40 A. 3d990, 999 (recognizing that award of custody of 21/2-year-oldchild to biological father under applicable state law oncepaternity is established will result in the "difficult and painful" necessity of "removing the child from the only homehe has ever known"). On the other hand, these rulesrecognize that biological fathers have a valid interest in arelationship with their child. See supra, at 6. And children have a reciprocal interest in knowing their biologicalparents. See Santosky, 455 U. S., at 760-761, n. 11 (describing the foreclosure of a newborn child's opportunity to"ever know his natural parents" as a "los[s] [that] cannotbe measured"). These rules also reflect the understandingthat the biological bond between a parent and a child is astrong foundation on which a stable and caring relationship may be built. Many jurisdictions apply a custodialpreference for a fit natural parent over a party lackingthis biological link. See, e.g., Ex parte Terry, 494 So. 2d628, 632 (Ala. 1986); Appeal of H. R., 581 A. 2d 1141, 1177

(D. C. 1990) (opinion of Ferren, J.); Stuhr v. Stuhr, 240Neb. 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------ 13 See also, e.g., Nev. Rev. Stat. §§127.040(1)(a), 128.150 (2011). 19 20 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting ral parent's "liberty interest in family privacy," which hasits source "in intrinsic human rights," with a foster parent's parallel interest in his or her relationship with achild, which has its "origins in an arrangement in whichthe State has been a partner from the outset"). This preference is founded in the "presumption that fit parents actin 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 biologicalfathers against the need for stability in a child's familysituation is difficult, to be sure, and States have, over theyears, taken different approaches to the problem. SomeStates, like South Carolina, have opted to hew to the constitutional baseline established by this Court's precedents and do not require a biological father's consent toadoption unless he has provided financial support duringpregnancy. 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 fathersmore robust protection and to afford them consent rightson the basis of their biological link to the child. At thetime that ICWA was passed, as noted, over one-fourth ofStates did so. See supra, at 17-18. ICWA, on a straightforward reading of the statute, isconsistent with the law of those States that protected, andprotect, birth fathers' rights more vigorously. This reading can hardly be said to generate an anomaly. ICWA, asall acknowledge, was "the product of rising concern . . .[about] abusive child welfare practices that resulted in theseparation of large numbers of Indian children from theirfamilies." Holyfield, 490 U. S., at 32. It stands to reasonthat the Act would not render the legal status of an Indianfather's relationship with his biological child fragile, but SOTOMAYOR, J., dissenting would instead grant it a degree of protection commensurate with the more robust state-law standards.14 C

The majority also protests that a contrary result to theone it reaches would interfere with the adoption of Indianchildren. Ante, at 14, 16. This claim is the most perplexing of all. A central purpose of ICWA is to "promote thestability and security of Indian . . . families," 25 U. S. C.§1902, in part by countering the trend of placing "analarmingly high percentage of [Indian] children . . . in non-Indian foster and adoptive homes and institutions."§1901(4). The Act accomplishes this goal by, first, protecting the familial bonds of Indian parents and children, seesupra, at 4-12; and, second, establishing placement preferences should an adoption take place, see §1915(a).ICWA does not interfere with the adoption of Indian children except to the extent that it attempts to avert thenecessity of adoptive placement and makes adoptions ofIndian children by non-Indian families less likely. The majority may consider this scheme unwise. Butno principle of construction licenses a court to interpret astatute with a view to averting the very consequencesCongress expressly stated it was trying to bring about.Instead, it is the " 'judicial duty to give faithful meaning to ------ 14 It bears emphasizing that the ICWA standard for termination ofparental rights of which Birth Father claims the benefit is more protective than, but not out of step with, the clear and convincing standardgenerally applied in state courts when termination of parental rightsis sought. Birth Father does not claim that he is entitled to custodyof Baby Girl unless petitioners can satisfy the demanding standard of§1912(f ). See Brief for Respondent Birth Father 40, n. 15. The question of custody would be analyzed independently, as it was by the SouthCarolina Supreme Court. Of course, it will often be the case that custody is subsequently granted to a child's fit parent, consistent withthe presumption that a natural parent will act in the best interests ofhis child. See supra, at 19-20. 21 22 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting the language Congress adopted in the light of the evident 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 consistent with the "primary" purpose of the Act, which in themajority's view was to prevent the dissolution of "intact"Indian families. Ante, at 9-10. We may not, however, giveeffect only to congressional goals we designate "primary"while casting aside others classed as "secondary"; we mustapply the entire statute Congress has written. While thereare indications that central among Congress' concernsin enacting ICWA was the removal of Indian childrenfrom homes in which Indian parents or other guardianshad custody of them, see, e.g., §§1901(4), 1902, Congress also recognized that "there is no resource that ismore vital to the continued existence and integrity ofIndian tribes than their children," §1901(3). As we ob­served in Holyfield, ICWA protects not only Indian parents' interests but also those of Indian tribes. See 490

U. S., at 34, 52. A tribe's interest in its next generation ofcitizens is adversely affected by the placement of Indianchildren in homes with no connection to the tribe, whetheror not those children were initially in the custody of anIndian parent.15 Moreover, the majority's focus on "intact" families, ante,at 10, begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps allparents would be perfect. They would live up to their ------ 15 Birth Father is a registered member of the Cherokee Nation, a factof which Birth Mother was aware at the time of her pregnancy and ofwhich she informed her attorney. See 398 S. C. 625, 632-633, 731 S. E.2d 550, 554 (2012). SOTOMAYOR, J., dissenting parental responsibilities by providing the fullest possiblefinancial and emotional support to their children. Theywould never suffer mental health problems, lose their jobs,struggle with substance dependency, or encounter any ofthe other multitudinous personal crises that can make itdifficult to meet these responsibilities. In an ideal worldparents would never become estranged and leave theirchildren caught in the middle. But we do not live insuch a world. Even happy families do not always fit thecustodial-parent mold for which the majority would reserveIWCA's substantive protections; unhappy families all toooften do not. They are families nonetheless. Congressunderstood as much. ICWA's definitions of "parent" and"termination of parental rights" provided in §1903 sweepbroadly. They should be honored


The majority does not rely on the theory pressed bypetitioners and the guardian ad litem that the canon ofconstitutional avoidance compels the conclusion that ICWAis inapplicable here. See Brief for Petitioners 43-51;Brief for Respondent Guardian Ad Litem 48-58. Itstates instead that it finds the statute clear.16 Ante, at 17.But the majority nevertheless offers the suggestion that acontrary 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 plausiblereading, he believes that the majority's reading avoids "significantconstitutional problems" concerning whether ICWA exceeds Congress'authority under the Indian Commerce Clause. Ante, at 1, 3-12. Noparty advanced this argument, and it is inconsistent with this Court'sprecedents holding that Congress has "broad general powers to legislate in respect to Indian tribes, powers that we have consistentlydescribed as plenary and exclusive," founded not only on the IndianCommerce Clause but also the Treaty Clause. United States v. Lara,541 U. S. 193, 200-201 (2004) (internal quotation marks omitted). 23 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 ofour precedents, which squarely hold that classificationsbased on Indian tribal membership are not impermissibleracial 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, analyticallyunnecessary references to the fact that Baby Girl is 3/256Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal ProtectionClause as applied here. See ante, at 1, 6; see also ante,at 16 (stating that ICWA "would put certain vulnerable children at a great disadvantage solely because anancestor-even a remote one-was an Indian" (emphasisadded)). I see no ground for this Court to second-guess themembership requirements of federally recognized Indiantribes, which are independent political entities. See SantaClara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978).I am particularly averse to doing so when the FederalGovernment requires Indian tribes, as a prerequisite forofficial recognition, to make "descen[t] from a historicalIndian tribe" a condition of membership. 25 CFR §83.7(e)(2012).The majority's treatment of this issue, in the end, doesno more than create a lingering mood of disapprobation ofthe criteria for membership adopted by the CherokeeNation that, in turn, make Baby Girl an "Indian child"under the statute. Its hints at lurking constitutionalproblems are, by its own account, irrelevant to its statutoryanalysis, and accordingly need not detain us any longer


Because I would affirm the South Carolina SupremeCourt on the ground that §1912 bars the termination ofBirth Father's parental rights, I would not reach thequestion of the applicability of the adoptive placement SOTOMAYOR, J., dissenting preferences of §1915. I note, however, that the majoritydoes not and cannot foreclose the possibility that on remand, Baby Girl's paternal grandparents or other members of the Cherokee Nation may formally petition foradoption of Baby Girl. If these parties do so, and if onremand Birth Father's parental rights are terminated sothat an adoption becomes possible, they will then be entitled to consideration under the order of preference established in §1915. The majority cannot rule prospectivelythat §1915 would not apply to an adoption petition thathas not yet been filed. Indeed, the statute applies "[i]nany adoptive placement of an Indian child under Statelaw," 25 U. S. C. §1915(a) (emphasis added), and containsno temporal qualifications. It would indeed be an oddresult for this Court, in the name of the child's best interests, cf. ante, at 15, to purport to exclude from the proceedings possible custodians for Baby Girl, such as herpaternal grandparents, who may have well-establishedrelationships with her. * * *

The majority opinion turns §1912 upside down, readingit from bottom to top in order to reach a conclusion that ismanifestly contrary to Congress' express purpose in enacting ICWA: preserving the familial bonds between Indianparents and their children and, more broadly, Indiantribes' relationships with the future citizens who are "vitalto [their] continued existence and integrity." §1901(3).The majority casts Birth Father as responsible for thepainful circumstances in this case, suggesting that heintervened "at the eleventh hour to override the mother'sdecision and the child's best interests," ante, at 16. I haveno wish to minimize the trauma of removing a 27-month­old child from her adoptive family. It bears remembering,however, that Birth Father took action to assert his parental rights when Baby Girl was four months old, as soon as 25 26 ADOPTIVE COUPLE v. BABY GIRL SOTOMAYOR, J., dissenting he learned of the impending adoption. As the South Carolina Supreme Court recognized, " '[h]ad the mandate of . . .ICWA been followed [in 2010], . . . much potential anguishmight have been avoided[;] and in any case the law cannotbe applied so as automatically to "reward those who obtaincustody, whether lawfully or otherwise, and maintain itduring 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 andignores Congress' purpose in order to rectify a perceivedwrong that, while heartbreaking at the time, was a correctapplication of federal law and that in any case cannot beundone. Baby Girl has now resided with her father for 18months. However difficult it must have been for her toleave Adoptive Couple's home when she was just over 2years old, it will be equally devastating now if, at the ageof 31/2, she is again removed from her home and sent to livehalfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty thatthe anguish this case has caused will only be compoundedby today's decision. I believe that the South Carolina Supreme Court'sjudgment was correct, and I would affirm it. I respectfullydissent.

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