ADOPTIVE COUPLE v. BABY GIRL, A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.
No. 12-399
SUPREME COURT OF THE UNITED STATES
June 25, 2013
570 U.S. 637
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ADOPTIVE COUPLE v. BABY GIRL, A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 12-399. Argued April 16, 2013—Decided June 25, 2013
The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences ... of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent‘s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent‘s “continued custody” of the child,
While Birth Mother was pregnant with Biological Father‘s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoption agency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl‘s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl‘s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption. Following a trial, which took place when Baby Girl was two
Held:
1. Assuming for the sake of argument that Biological Father is a “parent” under the ICWA, neither
(a) Section 1912(f) conditions the involuntary termination of parental rights on a heightened showing regarding the merits of the parent‘s “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions. The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result,
(b) Section
2. Section 1915(a)‘s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by
398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12-399
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
[June 25, 2013]
JUSTICE ALITO delivered the opinion of the Court.
This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court‘s ruling, we hold that
I
“The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069,
Three provisions of the ICWA are especially relevant to this case. First, “[a]ny party seeking” an involuntary termination of parental rights to an Indian child under state law must demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”
II
In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the Cherokee Nation) became engaged in December 2008. One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father
Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter misspelled Biological Father‘s first name and incorrectly stated his birthday, and the Cherokee Nation responded that, based on the information provided, it could not verify Biological Father‘s membership in the tribal records.
Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl‘s birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby Girl.
It is undisputed that, for the duration of the pregnancy and the first four months after Baby Girl‘s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl, even though he had the ability to do so. Indeed, Biological Father “made no meaningful attempts
Approximately four months after Baby Girl‘s birth, Adoptive Couple served Biological Father with notice of the pending adoption. (This was the first notification that they had provided to Biological Father regarding the adoption proceeding.) Biological Father signed papers stating that he accepted service and that he was “not contesting the adoption.” App. 37. But Biological Father later testified that, at the time he signed the papers, he thought that he was relinquishing his rights to Birth Mother, not to Adoptive Couple.
Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of the adoption proceedings.2 In the adoption proceedings, Biological Father sought custody and stated that he did not consent to Baby Girl‘s adoption. Moreover, Biological Father took a paternity test, which verified that he was Baby Girl‘s biological father.
A trial took place in the South Carolina Family Court in September 2011, by which time Baby Girl was two years old. 398 S. C. 625, 634-635, 731 S. E. 2d 550, 555-556 (2012). The Family Court concluded that Adoptive Couple had not carried the heightened burden under
The South Carolina Supreme Court affirmed the Family Court‘s denial of the adoption and the award of custody to Biological Father. Id., at 629, 731 S. E. 2d, at 552. The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731 S. E. 2d, at 556, 560, n. 18. It also concluded that Biological Father fell within the ICWA‘s definition of a “parent.” Id., at 644, 731 S. E. 2d, at 560. The court then held that two separate provisions of the ICWA barred the termination of Biological Father‘s parental rights. First, the court held that Adoptive Couple had not shown that “active efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.”
III
It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to
A
Section 1912(f) addresses the involuntary termination of parental rights with respect to an Indian child. Specifically,
Biological Father‘s contrary reading of
Our reading of
The dissent fails to dispute that nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) shortly after the ICWA‘s enactment demonstrate that the BIA envisioned that
Under our reading of
In sum, the South Carolina Supreme Court erred in finding that
B
Section 1912(d) provides that “[a]ny party” seeking to terminate parental rights to an Indian child under state law “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian
Consistent with the statutory text, we hold that
Our interpretation of
Our interpretation of
Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply
In sum, the South Carolina Supreme Court erred in finding that
IV
In the decision below, the South Carolina Supreme
Section 1915(a) provides that “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child‘s extended family; (2) other members of the Indian child‘s tribe; or (3) other Indian families.” Contrary to the South Carolina Supreme Court‘s suggestion,
In this case, Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. See Brief for Petitioners 19, 55; Brief for Respondent Birth Father 48; Reply Brief for Petitioners 13. Biological Father is not covered by
*
*
*
The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court‘s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian. As the State Supreme Court read
It is so ordered.
I join the Court‘s opinion in full but write separately to explain why constitutional avoidance compels this outcome. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raise significant constitutional problems as applied to this case. Because the Court‘s decision avoids those problems, I concur in its interpretation.
I
This case arises out of a contested state-court adoption proceeding. Adoption proceedings are adjudicated in state family courts across the country every day, and “domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975). Indeed, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U. S. 586, 593-594 (1890). Nevertheless, when Adoptive Couple filed a petition in South Carolina Family Court to finalize their adoption of Baby Girl, Birth Father, who had relinquished
The ICWA establishes “federal standards that govern state-court child custody proceedings involving Indian children.” Ante, at 2. The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
The ICWA restricts a state court‘s ability to terminate the parental rights of an Indian parent in two relevant ways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Section 1912(d) prohibits a state court from terminating parental rights until the court is satisfied “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” A third provision creates specific placement preferences for the adoption of Indian children, which favor placement with Indians over other adoptive families.
The ICWA recognizes States’ inherent “jurisdiction over Indian child custody proceedings,”
II
The ICWA asserts that the Indian Commerce Clause,
A
The Indian Commerce Clause gives Congress authority “[t]o regulate Commerce . . . with the Indian tribes.”
Furthermore, the term “commerce with Indian tribes” was invariably used during the time of the founding to mean “trade with Indians.” See, e.g., Natelson, 215-216, and n. 97 (citing 18th-century sources); Report of Committee on Indian Affairs (Feb 20, 1787), in 32 Journals of the Continental Congress 1774-1789, pp. 66, 68 (R. Hill ed. 1936) (hereinafter J. Cont‘l Cong.) (using the phrase “commerce with the Indians” to mean trade with the
The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is given the power to regulate Commerce “with the Indian tribes.” The Clause does not give Congress the power to regulate commerce with all Indian persons any more than the Foreign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading of the text, thus, confirms that Congress may only regulate commercial interactions—“commerce“—taking place with established Indian communities—“tribes.” That power is far from “plenary.”
B
Congress’ assertion of “plenary power” over Indian affairs is also inconsistent with the history of the Indian Commerce Clause. At the time of the founding, the Clause was understood to reserve to the States general police powers with respect to Indians who were citizens of the several States. The Clause instead conferred on Congress the much narrower power to regulate trade with Indian tribes—that is, Indians who had not been incorporated into the body-politic of any State.
1
Before the Revolution, most Colonies adopted their own regulations governing Indian trade. See Natelson 219, and n. 121 (citing colonial laws). Such regulations were necessary because colonial traders all too often abused their Indian trading partners, through fraud, exorbitant prices, extortion, and physical invasion of Indian territory,
Recognizing the need for uniform regulation of trade with the Indians, Benjamin Franklin proposed his own “articles of confederation” to the Continental Congress on July 21, 1775, which reflected his view that central control over Indian affairs should predominate over local control. 2 J. Cont‘l Cong. 195-199 (W. Ford ed. 1905). Franklin‘s proposal was not enacted, but in November 1775, Congress empowered a committee to draft regulations for the Indian trade. 3 id., at 364, 366. On July 12, 1776, the committee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin‘s proposals. 5 id., at 545, 546, n. 1. The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress
On August 20, 1776, the Committee of the Whole presented to Congress a revised draft, which provided Congress with “the sole and exclusive right and power of . . . regulating the trade, and managing all affairs with the Indians.” Id., at 672, 681-682. Some delegates feared that the Articles gave Congress excessive power to interfere with States’ jurisdiction over affairs with Indians residing within state boundaries. After further deliberation, the final result was a clause that included a broad grant of congressional authority with two significant exceptions: “The United States in Congress assembled shall also have the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation, Art. IX, cl. 4. As a result, Congress retained exclusive jurisdiction over Indian affairs outside the borders of the States; the States retained exclusive jurisdiction over relations with Member-Indians;2 and Congress and the States “exercise[d] concurrent jurisdiction over transactions with tribal Indians within state boundaries, but congressional decisions would have to be in compliance with local law.” Natelson 230. The drafting of the Articles of Confedera-
2
The drafting history of the Constitutional Convention also supports a limited construction of the Indian Commerce Clause. On July 24, 1787, the convention elected a drafting committee—the Committee of Detail—and charged it to “report a Constitution conformable to the Resolutions passed by the Convention.” 2 Records of the Federal Convention of 1787, p.106 (M. Farrand rev. 1966) (J. Madison). During the Committee‘s deliberations, John Rutledge, the chairman, suggested incorporating an Indian affairs power into the Constitution. Id., at 137, n. 6, 143. The first draft reported back to the convention, however, provided Congress with authority “[t]o regulate commerce with foreign nations, and among the several States,” id., at 181 (Madison) (Aug. 6, 1787), but did not include any specific Indian affairs clause. On August 18, James Madison proposed that the Federal Government be granted several additional powers, including the power “[t]o regulate affairs with the Indians as well within as without the limits of the U. States.” Id., at 324 (J. Madison) (emphasis added). On August 22, Rutledge delivered the Committee of Detail‘s second report, which modified Madison‘s proposed clause. The Committee proposed to add to Congress’ power “[t]o regulate commerce with foreign nations, and among the several States” the words, “and with Indians, within the Limits of any State, not subject to the laws thereof.” Id., at 366-367 (Journal). The Committee‘s version, which echoed the Articles of Confederation, was far narrower than Madison‘s proposal. On August 31, the revised draft was submitted to a Com-
It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulate trade with the Indians and the power to regulate all Indian affairs. By limiting Congress’ power to the former, the Framers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1090 (2004).
During the ratification debates, opposition to the Indian Commerce Clause was nearly nonexistent. See Natelson 248 (noting that Robert Yates, a New York Anti-Federalist was “almost the only writer who objected to any part [of] the Commerce Clause—a clear indication that its scope was understood to be fairly narrow” (footnote omitted)). Given the Anti-Federalists’ vehement opposition to the Constitution‘s other grants of power to the Federal Government, this silence is revealing. The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress—namely, the power to regulate trade with Indian tribes living beyond state borders. And this feature of the Constitution was welcomed by Federalists and Anti-Federalists alike due to the considerable interest in expanding trade with such Indian tribes. See, e.g., The Federalist No. 42, at 265 (J. Madison) (praising the Constitution for removing the obstacles that had existed under the Articles of Confederation to federal control over “trade with Indians” (emphasis added)); 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 580 (2d ed. 1863) (Adam Stephens, at the Virginia ratifying convention, June 23, 1788, describing the Indian tribes residing near
III
In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,”
Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes. Sections 1912(d) and (f), and
Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law
*
Because the Court‘s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur.
I join the Court‘s opinion with three observations. First, the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life. That category of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range of others in between. Most of those who fall within that category seem to fall outside the scope of the language of
Second, we should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid “all of his child support obligations.” See post, at 13. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child. See post, at 13 n. 8. The Court need not, and in my view does not, now decide whether or how
Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child‘s extended family; (2) other members of the Indian child‘s tribe; or (3) other Indian families . . . . in the absence of good cause to the contrary.” Further,
I join JUSTICE SOTOMAYOR‘s dissent except as to one detail. I reject the conclusion that the Court draws from the words “continued custody” in
While I am at it, I will add one thought. The Court‘s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be
A casual reader of the Court‘s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result. In truth, however, the path from the text of the Indian Child Welfare Act of 1978 (ICWA) to the result the Court reaches is anything but clear, and its result anything but right.
The reader‘s first clue that the majority‘s supposedly straightforward reasoning is flawed is that not all Members who adopt its interpretation believe it is compelled by the text of the statute, see ante, at 1 (THOMAS, J., concurring); nor are they all willing to accept the consequences it 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 by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it. That is not how we ordinarily read statutes. The third clue is that the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute. The majority ex-
I
Beginning its reading with the last clause of
When it excludes noncustodial biological fathers from the Act‘s substantive protections, this textually backward reading misapprehends ICWA‘s structure and scope. Moreover, notwithstanding the majority‘s focus on the perceived parental shortcomings of Birth Father, its rea-
A
Better to start at the beginning and consider the operation of the statute as a whole. Cf. ante, at 13 (“[S]tatutory construction is a holistic endeavor[,]’ and ‘[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” (quoting United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988))).
ICWA commences with express findings. Congress recognized that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,”
Consistent with these findings, Congress declared its purpose “to protect the best interests of Indian children
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.”
Petitioners and Baby Girl‘s guardian ad litem devote many pages of briefing to arguing that the term “parent” should be defined with reference to the law of the State in which an ICWA child custody proceeding takes place. See Brief for Petitioners 19-29; Brief for Respondent Guardian Ad Litem 32-41. These arguments, however, are inconsistent with our recognition in Holyfield that Congress intended the critical terms of the statute to have uniform federal definitions. See 490 U. S., at 44-45. It is therefore unsurprising, although far from unimportant, that the majority assumes for the purposes of its analysis that Birth Father is an ICWA “parent.” See ante, at 7.
Second, the Act‘s comprehensive definition of “child custody proceeding” includes not only adoptive placement[s],” ““preadoptive placement[s],” and ““foster care
placement[s],” but also “termination of parental rights” proceedings.These protections are numerous. Had Birth Father
petitioned to remove this proceeding to tribal court, for
example, the state court would have been obligated to
transfer it absent an objection from Birth Mother or good
cause to the contrary. See
Section 1912(a) requires that any party seeking “termi-
nation of parental rights t[o] an Indian child” provide
notice to both the child‘s “parent or Indian custodian”
and the child‘s tribe “of the pending proceedings and of
their right of intervention.”
These protections are consonant with the principle, recognized in our cases, that the biological bond between parent and child is meaningful. “[A] natural parent‘s desire for and right to the companionship, care, custody, and management of his or her children,” we have ex- plained, “is an interest far more precious than any prop- erty right.” Santosky v. Kramer, 455 U. S. 745, 758-759 (1982) (internal quotation marks omitted). See also infra, at 19-20. Although the Constitution does not compel the protection of a biological father‘s parent-child relationship until he has taken steps to cultivate it, this Court has nevertheless recognized that “the biological connection... offers the natural father an opportunity that no other male possesses to develop a relationship with his off- spring.” Lehr v. Robertson, 463 U. S. 248, 262 (1983). Federal recognition of a parent-child relationship between a birth father and his child is consistent with ICWA‘S purpose of providing greater protection for the familial bonds between Indian parents and their children than state law may afford.
The majority does not and cannot reasonably dispute
that ICWA grants biological fathers, as “parent[s],” the
right to be present at a termination of parental rights
proceeding and to have their views and claims heard
there.2 But the majority gives with one hand and takes
“Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (Emphasis added.)
In other words, subsection (d) requires that an attempt be made to cure familial deficiencies before the drastic measures of foster care placement or termination of paren- tal rights can be taken.
The majority would hold that the use of the phrase
“breakup of the Indian family” in this subsection means
that it does not apply where a birth father has not previ-
ously had custody of his child. Ante, at 12. But there is
nothing about this capacious phrase that licenses such a
narrowing construction. As the majority notes, “breakup”
means “‘[t]he discontinuance of a relationship.‘” Ante, at
12 (quoting American Heritage Dictionary 235 (3d ed.
1992)). So far, all of §1912‘s provisions expressly apply in
actions aimed at terminating the “parent-child relation-
ship” that exists between a birth father and his child, and
they extend to it meaningful protections. As a logical
matter, that relationship is fully capable of being pre-
The majority, reaching the contrary conclusion, asserts
baldly that “when an Indian parent abandons an Indian
child prior to birth and that child has never been in the
Indian parent‘s legal or physical custody, there is no ‘rela-
tionship’ that would be ‘discontinu[ed]’ . . . by the termina-
tion of the Indian parent‘s rights.” Ante, at 12. Says who?
Certainly not the statute.
The majority states that its “interpretation of
“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, in- cluding testimony of qualified expert witnesses, that the continued custody of the child by the parent or In- dian custodian is likely to result in serious emotional or physical damage to the child.”
§1912(f) .4
The immediate inference to be drawn from the statute‘s
structure is that subsections (e) and (f) work in tandem
with the rehabilitative efforts required by (d). Under
subsection (d), state authorities must attempt to provide
“remedial services and rehabilitative programs” aimed at
avoiding foster care placement or termination of parental
rights; (e) and (f), in turn, bar state authorities from order-
All this, and still the most telling textual evidence is yet
to come: The text of the subsection begins by announcing,
“[n]o termination of parental rights may be ordered” un-
less the specified evidentiary showing is made. To repeat,
a “termination of parental rights” includes “any action
resulting in the termination of the parent-child relation-
ship,”
The entire foundation of the majority‘s argument that
Because a primary dictionary definition of “continued” is
“‘carried on or kept up without cessation,‘” ante, at 8
(brackets omitted), the majority concludes that
The majority is willing to assume, for the sake of argu-
ment, that Birth Father is a “parent” within the meaning
of ICWA. But the majority fails to account for all that
follows from that assumption. The majority repeatedly
passes over the term “termination of parental rights” that,
as defined by
B
The majority also does not acknowledge the full impli-
Consider an Indian father who, though he has never had custody of his biological child, visits her and pays all of his child support obligations.8 Suppose that, due to deficien-
Not from the statute Congress drafted, according to the
majority. The majority suggests that it might come from
state law. See ante, at 13, n. 8. But it is incongruous to
suppose that Congress intended a patchwork of federal
and state law to apply in termination of parental rights
proceedings. Congress enacted a statute aimed at protect-
While some States might provide protections compar-
able to
II
The majority‘s textually strained and illogical reading of the statute might be explicable, if not justified, if there were reason to believe that it avoided anomalous results or furthered a clear congressional policy. But neither of these conditions is present here.
A
With respect to
In other words, the prospective adoptive couple have to
make an evidentiary showing, not undertake person-to-
person remedial outreach. The services themselves might
be attempted by the Indian child‘s Tribe, a state agency,
or a private adoption agency. Such remedial efforts are
a familiar requirement of child welfare law, including fed-
eral child welfare policy. See
B
On a more general level, the majority intimates that ICWA grants Birth Father an undeserved windfall: in the majority‘s words, an “ICWA trump card” he can “play . . . at the eleventh hour to override the mother‘s decision and the child‘s best interests.” Ante, at 16. The implicit argu- ment is that Congress could not possibly have intended to recognize a parent-child relationship between Birth Fa- ther and Baby Girl that would have to be legally termi- nated (either by valid consent or involuntary termination) before the adoption could proceed.
Without doubt, laws protecting biological fathers’ paren-
tal rights can lead—even outside the context of ICWA—to
outcomes that are painful and distressing for both would-
be adoptive families, who lose a much wanted child, and
children who must make a difficult transition. See, e.g.,
In re Adoption of Tobias D., 2012 ME 45, ¶ 27, 40 A. 3d
990, 999 (recognizing that award of custody of 2½-year-old
child to biological father under applicable state law once
paternity is established will result in the “difficult and pain-
ful” necessity of “removing the child from the only home
he has ever known“). On the other hand, these rules
recognize that biological fathers have a valid interest in a
relationship with their child. See supra, at 6. And chil-
dren have a reciprocal interest in knowing their biological
parents. See Santosky, 455 U. S., at 760–761, n. 11 (de-
scribing the foreclosure of a newborn child‘s opportunity to
“ever know his natural parents” as a “los[s] [that] cannot
be measured“). These rules also reflect the understanding
that the biological bond between a parent and a child is a
strong foundation on which a stable and caring relation-
ship may be built. Many jurisdictions apply a custodial
preference for a fit natural parent over a party lacking
this biological link. See, e.g., Ex parte Terry, 494 So. 2d
628, 632 (Ala. 1986); Appeal of H. R., 581 A. 2d 1141, 1177
(D. C. 1990) (opinion of Ferren, J.); Stuhr v. Stuhr, 240
Neb. 239, 245, 481 N. W. 2d 212, 216 (1992); In re Michael
B., 80 N. Y. 2d 299, 309, 604 N. E. 2d 122, 127 (1992). Cf.
Smith v. Organization of Foster Families For Equality &
Reform, 431 U. S. 816, 845 (1977) (distinguishing a natu-
Balancing the legitimate interests of unwed biological fathers against the need for stability in a child‘s family situation is difficult, to be sure, and States have, over the years, taken different approaches to the problem. Some States, like South Carolina, have opted to hew to the con- stitutional baseline established by this Court‘s prece- dents and do not require a biological father‘s consent to adoption unless he has provided financial support during pregnancy. See Quilloin v. Walcott, 434 U. S. 246, 254- 256 (1978); Lehr, 463 U. S., at 261. Other States, how- ever, have decided to give the rights of biological fathers more robust protection and to afford them consent rights on the basis of their biological link to the child. At the time that ICWA was passed, as noted, over one-fourth of States did so. See supra, at 17-18.
ICWA, on a straightforward reading of the statute, is
consistent with the law of those States that protected, and
protect, birth fathers’ rights more vigorously. This read-
ing can hardly be said to generate an anomaly. ICWA, as
all acknowledge, was “the product of rising concern . . .
[about] abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their
families.” Holyfield, 490 U. S., at 32. It stands to reason
that the Act would not render the legal status of an Indian
father‘s relationship with his biological child fragile, but
C
The majority also protests that a contrary result to the
one it reaches would interfere with the adoption of Indian
children. Ante, at 14, 16. This claim is the most perplex-
ing of all. A central purpose of ICWA is to “promote the
stability and security of Indian . . . families,”
The majority may consider this scheme unwise. But
no principle of construction licenses a court to interpret a
statute with a view to averting the very consequences
Congress expressly stated it was trying to bring about.
Instead, it is the “‘judicial duty to give faithful meaning to
The majority further claims that its reading is con-
sistent with the “primary” purpose of the Act, which in the
majority‘s view was to prevent the dissolution of “intact”
Indian families. Ante, at 9-10. We may not, however, give
effect only to congressional goals we designate “primary”
while casting aside others classed as “secondary“; we must
apply the entire statute Congress has written. While there
are indications that central among Congress’ concerns
in enacting ICWA was the removal of Indian children
from homes in which Indian parents or other guardians
had custody of them, see, e.g.,
Moreover, the majority‘s focus on “intact” families, ante,
at 10, begs the question of what Congress set out to ac-
complish with ICWA. In an ideal world, perhaps all
parents would be perfect. They would live up to their
D
The majority does not rely on the theory pressed by
petitioners and the guardian ad litem that the canon of
constitutional avoidance compels the conclusion that ICWA
is inapplicable here. See Brief for Petitioners 43–51;
Brief for Respondent Guardian Ad Litem 48-58. It
states instead that it finds the statute clear.16 Ante, at 17.
But the majority nevertheless offers the suggestion that a
contrary result would create an equal protection problem.
Ibid. Cf. Brief for Petitioners 44–47; Brief for Respondent
It is difficult to make sense of this suggestion in light of
our precedents, which squarely hold that classifications
based on Indian tribal membership are not impermissible
racial classifications. See United States v. Antelope, 430
U. S. 641, 645–647 (1977); Morton v. Mancari, 417 U. S.
535, 553–554 (1974). The majority’s repeated, analytically
unnecessary references to the fact that Baby Girl is 3/256
Cherokee by ancestry do nothing to elucidate its intima-
tion that the statute may violate the Equal Protection
Clause as applied here. See ante, at 1, 6; see also ante,
at 16 (stating that ICWA “would put certain vulner-
able children at a great disadvantage solely because an
ancestor—even a remote one—was an Indian” (emphasis
added)). I see no ground for this Court to second-guess the
membership requirements of federally recognized Indian
tribes, which are independent political entities. See Santa
Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978).
I am particularly averse to doing so when the Federal
Government requires Indian tribes, as a prerequisite for
official recognition, to make “descen[t] from a historical
Indian tribe” a condition of membership.
The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.
III
Because I would affirm the South Carolina Supreme
Court on the ground that
*
*
*
The majority opinion turns
The majority casts Birth Father as responsible for the
painful circumstances in this case, suggesting that he
intervened “at the eleventh hour to override the mother‘s
decision and the child‘s best interests,” ante, at 16. I have
no wish to minimize the trauma of removing a 27-month-
old child from her adoptive family. It bears remembering,
however, that Birth Father took action to assert his paren-
tal rights when Baby Girl was four months old, as soon as
The majority‘s hollow literalism distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple‘s home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreor- dained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today‘s decision.
I believe that the South Carolina Supreme Court‘s judgment was correct, and I would affirm it. I respectfully dissent.