ADOPTIVE COUPLE v. BABY GIRL
When the biological mother of Baby Girl became pregnant she did not live with the father and the father did not support the mother financially. The mother sent the father a text message asking if he would rather pay child support or relinquish his parental rights. He sent a text back, saying that he would relinquish his rights, though he later testified that he thought he was relinquishing his rights only to the mother. The biological father was a registered member of the Cherokee Nation. The biological mother attempted to verify this status, but spelled the father’s name wrong and misrepresented his birthday in the request, so the Nation could not locate the father’s registration. The mother listed Baby Girl’s ethnicity as “Hispanic” instead of “Native American” on the birth certificate. The mother decided to put Baby Girl up for adoption because she had two other children that she struggled to support.
Adoptive Couple, who resided in South Carolina, began adoption proceedings in that state. The Cherokee Nation finally identified the father as a registered member and filed a notice of intervention, stating that Baby Girl was an “Indian Child” under the Federal Indian Child Welfare Act (ICWA). The father stated that he did not consent to the adoption and would seek custody of Baby Girl. After trial, the family court denied Adoptive Couple’s petition for adoption and granted custody to the biological father. The court held that the biological father was a “parent” under the ICWA because of his paternity and pursuit of custody as soon as he learned that Baby Girl was being put up for adoption. Adoptive Couple did not follow the procedural directives in the ICWA to obtain the father’s consent prior to initiating adoption proceedings. The Supreme Court of South Carolina affirmed.
Can a non-custodial parent invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law?
Does ICWA define “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?
Legal provision: Indian Child Welfare Act of 1978
No, a non-custodial parent cannot invoke the ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent. The Court did not rule on the definition of “parent,” but, for the sake of argument, assumed that the biological father was a “parent” under the ICWA. Justice Samuel A. Alito, Jr. delivered the opinion of the 5-4 majority. The Court held that the ICWA was designed to stop the practice of unwarranted removal of Indian children from Indian families “due to the cultural insensitivity and bias of social workers and state courts.” In this case, however, the Court noted that the biological father never had either legal or physical custody of Baby Girl and had previously relinquished his parental rights. Because the biological father gave up custody before birth, and because Baby Girl had never been in his legal or physical custody, the ICWA's goal to prevent the breakup of Indian families did not apply. Furthermore, the Court held that the ICWA’s preference for placing an Indian child with family, other members of the tribe, or other Indian families did not apply in this case because no other parties beside the adoptive parents had come forward to adopt Baby Girl. The Court feared that applying the lower court’s rationale could lead to a scenario where a biological Indian father could play an “ICWA trump card” to override the mother’s decision and the child’s best interests.
In his concurring opinion, Justice Clarence Thomas stated that the federal government, in passing the ICWA, may have interfered in the area of family law, a topic constitutionally reserved to the states. However, because the majority opinion avoided constitutional problems, he concurred with the decision. Justice Stephen G. Breyer wrote a separate concurrence in which he stated that the majority’s decision may adversely affect parents without looking at whether the parent would look out for the child’s best interest, and that the ruling still raised the possibility of allowing an absentee father to re-gain custody with the support of his tribe.
Justice Sonia Sotomayor wrote a dissent in which she argued that the majority’s opinion distorted the statute and led to a result that was both contrary to Congress’ intent and potentially devastating to Baby Girl. Additionally, she argued that the majority completely ignores Congress’ policy reasons for passing the ICWA and distorts the clear provisions in the act. Finally, Justice Sotomayor stated that the majority’s interpretation of the ICWA applies adversely to all noncustodial Indian parents, regardless of whether those parents actively participated in their child’s upbringing. Justice Ruth Bader Ginsburg and Justice Elena Kagan joined in the dissent, and Justice Antonin Scalia joined in part. In his separate dissent, Justice Antonin Scalia argued that the majority’s definition of the phrase, “continued custody,” should have also included future custody. He also wrote that the majority’s decision “needlessly demeans the right of parenthood” by removing a father’s right to raise his child.
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
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, a minor child under the age of fourteen years, et al.
on writ of certiorari to the supreme court of south carolina
[June 25, 2013]
Justice Alito delivered the opinion of the Court.
This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court’s ruling, we hold that 25 U. S. C. §1912(f)—which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child—does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)—which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family”—is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.I
“The Indian Child Welfare Act of 1978 (ICWA), 92Stat. 3069, 25 U. S. C. §§1901–1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989) . Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4). This “wholesale removal of Indian children from their homes” prompted Congress to enact the ICWA, which establishes federal standards that govern state-court child custody proceedings involving Indian children. Id., at 32, 36 (internal quotation marks omitted); see also §1902 (declaring that the ICWA establishes “minimum Federal standards for the removal of Indian children from their families”). 1
Three provisions of the ICWA are especially relevant to this case. First, “[a]ny party seeking” an involuntary termination of parental rights to an Indian child under state law must demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” §1912(d). Second, a state court may not involuntarily terminate parental rights to an Indian child “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” §1912(f). Third, with respect to adoptive placements for an Indian child under state law, “a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” §1915(a).II
In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the Cherokee Nation) became engaged in December 2008. One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father asked Birth Mother to move up the date of the wedding. He also refused to provide any financial support until after the two had married. The couple’s relationship deteriorated, and Birth Mother broke off the engagement in May 2009. In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights.
Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter misspelled Biological Father’s first name and incorrectly stated his birthday, and the Cherokee Nation responded that, based on the information provided, it could not verify Biological Father’s membership in the tribal records.
Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby Girl.
It is undisputed that, for the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl, even though he had the ability to do so. Indeed, Biological Father “made no meaningful attempts to assume his responsibility of parenthood” during this period. App. to Pet. for Cert. 122a (Sealed; internal quotation marks omitted).
Approximately four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. (This was the first notification that they had provided to Biological Father regarding the adoption proceeding.) Biological Father signed papers stating that he accepted service and that he was “not contesting the adoption.” App. 37. But Biological Father later testified that, at the time he signed the papers, he thought that he was relinquishing his rights to Birth Mother, not to Adoptive Couple.
Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of the adoption proceedings. 2 In the adoption proceedings, Biological Father sought custody and stated that he did not consent to Baby Girl’s adoption. Moreover, Biological Father took a paternity test, which verified that he was Baby Girl’s biological father.
A trial took place in the South Carolina Family Court in September 2011, by which time Baby Girl was two years old. 398 S. C. 625, 634–635, 731 S. E. 2d 550, 555–556 (2012). The Family Court concluded that Adoptive Couple had not carried the heightened burden under §1912(f) of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody. See id., at 648–651, 731 S. E. 2d, at 562–564. The Family Court therefore denied Adoptive Couple’s petition for adoption and awarded custody to Biological Father. Id., at 629, 636, 731 S. E. 2d, at 552, 556. On December 31, 2011, at the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. 3
The South Carolina Supreme Court affirmed the Family Court’s denial of the adoption and the award of custody to Biological Father. Id., at 629, 731 S. E. 2d, at 552. The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731 S. E. 2d, at 556, 560, n. 18. It also concluded that Biological Father fell within the ICWA’s definition of a “ ‘parent.’ ” Id., at 644, 731 S. E. 2d, at 560. The court then held that two separate provisions of the ICWA barred the termination of Biological Father’s parental rights. First, the court held that Adoptive Couple had not shown that “active efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.” §1912(d); see also id., at 647–648, 731 S. E. 2d, at 562. Second, the court concluded that Adoptive Couple had not shown that Biological Father’s “custody of Baby Girl would result in serious emotional or physical harm to her beyond a reasonable doubt.” Id., at 648–649, 731 S. E. 2d, at 562–563 (citing §1912(f)). Finally, the court stated that, even if it had decided to terminate Biological Father’s parental rights, §1915(a)’s adoptionplacement preferences would have applied. Id., at 655–657, 731 S. E. 2d, at 566–567. We granted certiorari. 568 U. S. ___ (2013).III
It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law. See Tr. of Oral Arg. 49; 398 S. C., at 644, n. 19, 731 S. E. 2d, at 560, n. 19 (“Under state law, [Biological] Father’s consent to the adoption would not have been required”). The South Carolina Supreme Court held, however, that Biological Father is a “parent” under the ICWA and that two statutory provisions—namely, §1912(f) and §1912(d)—bar the termination of his parental rights. In this Court, Adoptive Couple contends that Biological Father is not a “parent” and that §1912(f) and §1912(d) are inapplicable. We need not—and therefore do not—decide whether Biological Father is a “parent.” See §1903(9) (defining “parent”). 4 Rather, assuming for the sake of argument that he is a “parent,” we hold that neither §1912(f) nor §1912(d) bars the termination of his parental rights.A
Section 1912(f) addresses the involuntary termination of parental rights with respect to an Indian child. Specifically, §1912(f) provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Emphasis added.) The South Carolina Supreme Court held that Adoptive Couple failed to satisfy §1912(f) because they did not make a heightened showing that Biological Father’s “prospective legal and physical custody” would likely result in serious damage to the child. 398 S. C., at 651, 731 S. E. 2d, at 564 (emphasis added). That holding was error.
Section 1912(f) conditions the involuntary termination of parental rights on a showing regarding the merits of “continued custody of the child by the parent.” (Emphasis added.) The adjective “continued” plainly refers to a pre-existing state. As Justice Sotomayor concedes, post, at 11 (dissenting opinion) (hereinafter the dissent), “continued” means “[c]arried on or kept up without cessation” or “[e]xtended in space without interruption or breach of conne[ct]ion.” Compact Edition of the Oxford English Dictionary 909 (1981 reprint of 1971 ed.) (Compact OED); see also American Heritage Dictionary 288 (1981) (defining “continue” in the following manner: “1. To go on with a particular action or in a particular condition; persist. . . . 3. To remain in the same state, capacity, or place”); Webster’s Third New International Dictionary 493 (1961) (Webster’s) (defining “continued” as “stretching out in time or space esp. without interruption”); Aguilar v. FDIC, 63 F. 3d 1059, 1062 (CA11 1995) (per curiam) (suggesting that the phrase “continue an action” means “go on with . . . an action” that is “preexisting”). The term “continued” also can mean “resumed after interruption.” Webster’s 493; see American Heritage Dictionary 288. The phrase “continued custody” therefore refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply in cases where the Indian parent never had custody of the Indian child. 5
Biological Father’s contrary reading of §1912(f) is nonsensical. Pointing to the provision’s requirement that “[n]o termination of parental rights may be ordered . . . in the absence of a determination” relating to “the continued custody of the child by the parent,” Biological Father contends that if a determination relating to “continued custody” is inapposite in cases where there is no “custody,” the statutory text prohibits termination. See Brief for Respondent Birth Father 39. But it would be absurd to think that Congress enacted a provision that permits termination of a custodial parent’s rights, while simultaneously prohibiting termination of a noncustodial parent’s rights. If the statute draws any distinction between custodial and noncustodial parents, that distinction surely does not provide greater protection for noncustodial parents. 6
Our reading of §1912(f) comports with the statutory text demonstrating that the primary mischief the ICWA was designed to counteract was the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts. The statutory text expressly highlights the primary problem that the statute was intended to solve: “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4) (emphasis added); see also §1902 (explaining that the ICWA establishes “minimum Federal standards for the removal of Indian children from their families” (emphasis added)); Holyfield, 490 U. S., at 32–34. And if the legislative history of the ICWA is thought to be relevant, it further underscores that the Act was primarily intended to stem the unwarranted removal of Indian children from intact Indian families. See, e.g., H. R. Rep. No. 95–1386, p. 8 (1978) (explaining that, as relevant here, “[t]he purpose of [the ICWA] is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes” (emphasis added)); id., at 9 (decrying the “wholesale separation of Indian children” from their Indian families); id., at 22 (discussing “the removal” of Indian children from their parents pursuant to §§1912(e) and (f)). In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.
The dissent fails to dispute that nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) shortly after the ICWA’s enactment demonstrate that the BIA envisioned that §1912(f)’s standard would apply only to termination of a custodial parent’s rights. Specifically, the BIA stated that, under §1912(f), “[a] child may not be removed simply because there is someone else willing to raise the child who is likely to do a better job”; instead, “[i]t must be shown that . . . it is dangerous for the child to remain with his or her present custodians.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67593 (1979) (emphasis added) (hereinafter Guidelines). Indeed, the Guidelines recognized that §1912(f) applies only when there is pre-existing custody to evaluate. See ibid. (“[T]he issue on which qualified expert testimony is required is the question of whether or not serious damage to the child is likely to occur if the child is not removed”).
Under our reading of §1912(f), Biological Father should not have been able to invoke §1912(f) in this case, because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. As an initial matter, it is undisputed that Biological Father never had physical custody of Baby Girl. And as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either. See S. C. Code Ann. §63–17–20(B) (2010) (“Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child”); Okla. Stat., Tit. 10, §7800 (West Cum. Supp. 2013) (“Except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction”). 7
In sum, the South Carolina Supreme Court erred in finding that §1912(f) barred termination of Biological Father’s parental rights.B
Section 1912(d) provides that “[a]ny party” seeking to terminate parental rights to an Indian child under state law “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (Emphasis added.) The South Carolina Supreme Court found that Biological Father’s parental rights could not be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial services in accordance with §1912(d). 398 S. C., at 647–648, 731 S. E. 2d, at 562. We disagree.
Consistent with the statutory text, we hold that §1912(d) applies only in cases where an Indian family’s “breakup” would be precipitated by the termination of the parent’s rights. The term “breakup” refers in this context to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s 273 (defining “breakup” as “a disruption or dissolution into component parts: an ending as an effective entity”). See also Compact OED 1076 (defining “break-up” as, inter alia, a “disruption, separation into parts, disintegration”). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no “relationship” that would be “discontinu[ed]”—and no “effective entity” that would be “end[ed]”—by the termination of the Indian parent’s rights. In such a situation, the “breakup of the Indian family” has long since occurred, and §1912(d) is inapplicable.
Our interpretation of §1912(d) is, like our interpretation of §1912(f), consistent with the explicit congressional purpose of providing certain “standards for the removal of Indian children from their families.” §1902 (emphasis added); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32–34. In addition, the BIA’s Guidelines confirm that remedial services under §1912(d) are intended “to alleviate the need to remove the Indian child from his or her parents or Indian custodians,” not to facilitate a transfer of the child to an Indian parent. See 44 Fed. Reg., at 67592 (emphasis added).
Our interpretation of §1912(d) is also confirmed by the provision’s placement next to §1912(e) and §1912(f), both of which condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent. That these three provisions appear adjacent to each other strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (explaining that statutory construction “is a holistic endeavor” and that “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme”). None of these three provisions creates parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an “Indian family” are provided with access to “remedial services and rehabilitative programs” under §1912(d) so that their “custody” might be “continued” in a way that avoids foster-care placement under §1912(e) or termination of parental rights under §1912(f). In other words, the provision of “remedial services and rehabilitative programs” under §1912(d) supports the “continued custody” that is protected by §1912(e) and §1912(f). 8
Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply §1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child. The decision below illustrates this point. The South Carolina Supreme Court held that §1912(d) mandated measures such as “attempting to stimulate [Biological] Father’s desire to be a parent.” 398 S. C., at 647, 731 S. E. 2d, at 562. But if prospective adoptive parents were required to engage in the bizarre undertaking of “stimulat[ing]” a biological father’s “desire to be a parent,” it would surely dissuade some of them from seeking to adopt Indian children. 9 And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption. 10
In sum, the South Carolina Supreme Court erred in finding that §1912(d) barred termination of Biological Father’s parental rights.IV
In the decision below, the South Carolina Supreme Court suggested that if it had terminated Biological Father’s rights, then §1915(a)’s preferences for the adoptive placement of an Indian child would have been applicable. 398 S. C., at 655–657, 731 S. E. 2d, at 566–567. In so doing, however, the court failed to recognize a critical 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 preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Contrary to the South Carolina Supreme Court’s suggestion, §1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under §1915(a) has come forward.
In this case, Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. See Brief for Petitioners 19, 55; Brief for Respondent Birth Father 48; Reply Brief for Petitioners 13. Biological Father is not covered by §1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. 11 Moreover, Baby Girl’s paternal grandparents never sought custody of Baby Girl. See Brief for Petitioners 55; Reply Brief for Petitioners 13; 398 S. C., at 699, 731 S. E. 2d, at 590 (Kittredge, J., dissenting) (noting that the “paternal grandparents are not parties to this action”). Nor did other members of the Cherokee Nation or “other Indian families” seek to adopt Baby Girl, even though the Cherokee Nation had notice of—and intervened in—the adoption proceedings. See Brief for Respondent Cherokee Nation 21–22; Reply Brief for Petitioners 13–14. 12
* * *
The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian. As the State Supreme Court read §§1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§1912(f) and (d) makes clear that neither provision applies in the present context. Nor do §1915(a)’s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child. We therefore reverse the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
1 It is undisputed that Baby Girl is an “Indian child” as defined by the ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” §1903(4)(b). See Brief for Respondent Birth Father 1, 51, n. 22; Brief for Respondent Cherokee Nation 1; Brief for Petitioners 44 (“Baby Girl’s eligibility for membership in the Cherokee Nation depends solely upon a lineal blood relationship with a tribal ancestor”).It is also undisputed that the present case concerns a “child custody proceeding,” which the ICWA defines to include proceedings that involve “termination of parental rights” and “adoptive placement,” §1903(1).
2 Around the same time, the Cherokee Nation identified Biological Father as a registered member and concluded that Baby Girl was an “Indian child” as defined in the ICWA. The Cherokee Nation intervened in the litigation approximately three months later.
3 According to the guardian ad litem, Biological Father allowed Baby Girl to speak with Adoptive Couple by telephone the following day, but then cut off all communication between them. Moreover, according to Birth Mother, Biological Father has made no attempt to contact her since the time he took custody of Baby Girl.
4 If Biological Father is not a “parent” under the ICWA, then §1912(f) and §1912(d)—which relate to proceedings involving possible termination of “parental” rights—are inapplicable. Because we conclude that these provisions are inapplicable for other reasons, however, we need not decide whether Biological Father is a “parent.”
5 With a torrent of words, the dissent attempts to obscure the fact that its interpretation simply cannot be squared with the statutory text. A biological father’s “continued custody” of a child cannot be assessed if the father never had custody at all, and the use of a different phrase—“termination of parental rights”—cannot change that. In addition, the dissent’s reliance on subsection headings, post, at 9, overlooks the fact that those headings were not actually enacted by Congress. See 92Stat. 3071–3072.
6 The dissent criticizes us for allegedly concluding that a biological father qualifies for “substantive” statutory protections “only when [he] has physical or state-recognized legal custody.” Post, at 2, 6–7. But the dissent undercuts its own point when it states that “numerous” ICWA provisions not at issue here afford “meaningful” protections to biological fathers regardless of whether they ever had custody. Post, at 4–7, and nn. 1, 2.
7 In an effort to rebut our supposed conclusion that “Congress could not possibly have intended” to require legal termination of Biological Father’s rights with respect to Baby Girl, the dissent asserts that a minority of States afford (or used to afford) protection to similarly situated biological fathers. See post, at 17–18, and n. 12 (emphasis added). This is entirely beside the point, because we merely conclude that, based on the statute’s text and structure, Congress did not extend the heightened protections of §1912(d) and §1912(f) to all biological fathers. The fact that state laws may provide certain protections to biological fathers who have abandoned their children and who have never had custody of their children in no way undermines our analysis of these two federal statutory provisions.
8 The dissent claims that our reasoning “necessarily extends to all Indian parents who have never had custody of their children,” even if those parents have visitation rights. Post, at 2–3, 13–14. As an initial matter, the dissent’s concern about the effect of our decision on individuals with visitation rights will be implicated, at most, in a relatively small class of cases. For example, our interpretation of §1912(d) would implicate the dissent’s concern only in the case of a parent who abandoned his or her child prior to birth and never had physical or legal custody, but did have some sort of visitation rights. Moreover, in cases where this concern is implicated, such parents might receive “comparable” protections under state law. See post, at 15. And in any event, it is the dissent’s interpretation that would have far-reaching consequences: Under the dissent’s reading, any biological parent—even a sperm donor—would enjoy the heightened protections of §1912(d) and§1912(f), even if he abandoned the mother and the child immediately after conception. Post, at 14, n. 8.
9 Biological Father and the Solicitor General argue that a tribeor state agency could provide the requisite remedial services under §1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don’t? And if they don’t, would the adoptive parents have to undertake the task?
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.
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 a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in [§1915(b)].” Although we need not decide the issuehere, it may be the case that an Indian child’s tribe could alter §1915’s preferences in a way that includes a biological father whose rights were terminated, but who has now reformed. See §1915(c). If a tribe were to take such an approach, however, the court would still have the power to determine whether “good cause” exists to disregard the tribe’s order of preference. See §§1915(a), (c); In re Adoption of T. R. M., 525 N. E. 2d 298, 313 (Ind. 1988).
12 To be sure, an employee of the Cherokee Nation testified that the Cherokee Nation certifies families to be adoptive parents and that there are approximately 100 such families “that are ready to take children that want to be adopted.” Record 446. However, this testi-mony was only a general statement regarding the Cherokee Nation’s practices; it did not demonstrate that a specific Indian family was willing to adopt Baby Girl, let alone that such a family formally sought such adoption in the South Carolina courts. See Reply Brief for Petitioners 13–14; see also Brief for Respondent Cherokee Nation 21–22.
SUPREME COURT OF THE UNITED STATES
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, a minor child under the age of fourteen years, et al.
on writ of certiorari to the supreme court of south carolina
[June 25, 2013]
Justice Sotomayor, with whom Justice Ginsburg and Justice Kagan join, and with whom Justice Scalia joins in part, dissenting.
A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only 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 expresses concern that reading the Act to mean what it says will make it more difficult to place Indian children in adoptive homes, see ante, at 14, 16, but the Congress that enacted the statute announced its intent to stop “an alarmingly high percentage of Indian families [from being] broken up” by, among other things, a trend of “plac[ing] [Indian children] in non-Indian . . . adoptive homes.” 25 U. S. C. §1901(4). Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the provisions of the Act. Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose. I respectfully dissent.I
Beginning its reading with the last clause of §1912(f), the majority concludes that a single phrase appearing there—“continued custody”—means that the entirety of the subsection is inapplicable to any parent, however committed, who has not previously had physical or legal custody of his child. Working back to front, the majority then concludes that §1912(d), tainted by its association with §1912(f), is also inapplicable; in the majority’s view, a family bond that does not take custodial form is not a family bond worth preserving from “breakup.” Because there are apparently no limits on the contaminating power of this single phrase, the majority does not stop there. Under its reading, §1903(9), which makes biological 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 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 reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting. The majority thereby transforms a statute that was intended to provide uniform federal standards for child custody proceedings involving Indian children and their biological parents into an illogical piecemeal scheme.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,” 25 U. S. C. §1901(3), and it found that this resource was threatened. State authorities insufficiently sensitive to “the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families” were breaking up Indian families and moving Indian children to non-Indian homes and institutions. See §§1901(4)–(5). As §1901(4) makes clear, and as this Court recognized in Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989) , adoptive placements of Indian children with non-Indian families contributed significantly to the overall problem. See §1901(4) (finding that “an alarmingly high percentage of [Indian] children are placed in non-Indian . . . adoptive homes”).
Consistent with these findings, Congress declared its purpose “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards” applicable to child custody proceedings involving Indian children. §1902. Section 1903 then goes on to establish the reach of these protections through its definitional provisions. For present purposes, two of these definitions are crucial to understanding the statute’s full scope.
First, ICWA defines the term “parent” broadly to mean “any biological parent . . . of an Indian child or any Indian person who has lawfully adopted an Indian child.” §1903(9). It is undisputed that Baby Girl is an “Indian child” within the meaning of the statute, see §1903(4); ante, at 2, n. 1, and Birth Father consequently qualifies as a “parent” under the Act. The statutory definition of parent “does not include the unwed father where paternity has not been acknowledged or established,” §1903(9), but Birth Father’s biological paternity has never been questioned by any party and was confirmed by a DNA test during the state court proceedings, App. to Pet. for Cert. 109a (Sealed).
Petitioners and Baby Girl’s guardian ad litem devote many pages of briefing to arguing that the term “parent” should be defined with reference to the law of the State in which an ICWA child custody proceeding takes place. See Brief for Petitioners 19–29; Brief for Respondent Guardian Ad Litem 32–41. These arguments, however, are 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. §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 “parent-child relationship” with her is subject to the protections of the Act.
These protections are numerous. Had Birth Father petitioned to remove this proceeding to tribal court, for example, the state court would have been obligated to transfer it absent an objection from Birth Mother or good cause to the contrary. See §1911(b). Any voluntary consent Birth Father gave to Baby Girl’s adoption would have been invalid unless written and executed before a judge and would have been revocable up to the time a final decree of adoption was entered. 1 See §§1913(a), (c). And §1912, the center of the dispute here, sets forth procedural and substantive standards applicable in “involuntary proceeding[s] in a State court,” including foster care placements of Indian children and termination of 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” provide notice to both the child’s “parent or Indian custodian” and the child’s tribe “of the pending proceedings and of their right of intervention.” Section 1912(b) mandates that counsel be provided for an indigent “parent or Indian custodian” in any “termination proceeding.” Section 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—the right to inspect all material “reports or other documents filed with the court.” By providing notice, counsel, and access to relevant documents, the statute ensures a biological father’s meaningful participation in an adoption proceeding where the termination of his parental rights is at issue.
These protections are consonant with the principle, recognized in our cases, that the biological bond between parent and child is meaningful. “[A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children,” we have explained, “is an interest far more precious than any property right.” Santosky v. Kramer, 455 U. S. 745 –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 offspring.” 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 away with the other. Having assumed a uniform federal definition of “parent” that confers certain procedural rights, the majority then illogically concludes that ICWA’s substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. The statute does not support this departure.
Section 1912(d) provides that
“Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (Emphasis added.)
In other words, subsection (d) requires that an attempt be made to cure familial deficiencies before the drastic measures of foster care placement or termination of parental 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 previously 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 relationship” 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 preserved via remedial services and rehabilitation programs. See infra, at 15–17. Nothing in the text of subsection (d) indicates that this blood relationship should be excluded from the category of familial “relationships” that the provision aims to save from “discontinuance.”
The majority, reaching the contrary conclusion, asserts baldly that “when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘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 Birth Father as Baby Girl’s “parent,” and, in conjunction with ICWA’s other provisions, it further establishes that their “parent-child relationship” is protected under federal law. In the face of these broad definitions, the majority has no warrant to substitute its own policy views for Congress’ by saying that “no ‘relationship’ ” exists between Birth Father and Baby Girl simply because, based on the hotly 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 §1912(e) and §1912(f),” both of which use the phrase “ ‘continued custody.’ ” Ante, at 13. This is the only aspect of the majority’s argument regarding §1912(d) that is based on ICWA’s actual text rather than layers of assertion superimposed on the text; but the conclusion the majority draws from the juxtaposition of these provisions is exactly backward.
Section 1912(f) is paired with §1912(e), and as the majority notes, both come on the heels of the requirement of rehabilitative efforts just reviewed. The language of the two provisions is nearly identical; subsection (e) is headed “Foster care placement orders,” and subsection (f), the relevant provision here, is headed “Parental rights termination orders.” Subsection (f) reads in its entirety,
“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” §1912(f). 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 ordering foster care or terminating parental rights until these curative efforts have failed and it is established that the child will suffer “serious emotional or physical damage” if his or her familial situation is not altered. Nothing in subsections (a) through (d) suggests a limitation on the types of parental relationships that are protected by any of the provisions of §1912, and there is nothing in the structure of §1912 that would lead a reader to expect subsection (e) or (f) to introduce any such qualification. Indeed, both subsections, in their opening lines, refer back to the prior provisions of §1912 with the phrase “in such proceeding.” This language indicates, quite logically, that in actions where subsections (a), (b), (c), and (d) apply, (e) and (f) apply too. 5
All this, and still the most telling textual evidence is yet to come: The text of the subsection begins by announcing, “[n]o termination of parental rights may be ordered” unless the specified evidentiary showing is made. To repeat, a “termination of parental rights” includes “any action resulting 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 disregards the Act’s sweeping definition of “termination of parental rights,” which is not limited to terminations of custodial relationships.
The entire foundation of the majority’s argument that subsection (f) does not apply is the lonely phrase “continued custody.” It simply cannot bear the interpretive weight the majority would place on it.
Because a primary dictionary definition of “continued” is “ ‘carried on or kept up without cessation,’ ” ante, at 8 (brackets omitted), the majority concludes that §1912(f) “does not apply in cases where the Indian parent never had custody of the Indian child,” ante, at 8. Emphasizing that Birth Father never had physical custody or, under state law, legal custody of Baby Girl, the majority finds the statute inapplicable here. Ante, at 10–11. But “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 –345 (1997) (noting that a term that may “[a]t first blush” seem unambiguous can prove otherwise when examined in the context of the statute as a whole). 6 In light of the structure of §1912, which indicates that subsection (f) is applicable to the same actions to which subsections (a) through (d) are applicable; the use of the phrase “such proceeding[s]” at the start of subsection (f) to reinforce this structural inference; and finally, the provision’s explicit statement that it applies to “termination of parental rights” proceedings, the necessary conclusion is that the word “custody” does not strictly denote a state-recognized custodial relationship. If one refers back to the Act’s definitional section, this conclusion is not surprising. Section 1903(1) includes “any action resulting in the termination of the parent-child relationship” within the meaning of “child custody proceeding,” thereby belying any congressional intent to give the term “custody” a narrow and exclusive definition throughout the statute.
In keeping with §1903(1) and the structure and language of §1912 overall, the phrase “continued custody” is most sensibly read to refer generally to the continuation of the parent-child relationship that an ICWA “parent” has with his or her child. A court applying §1912(f) where the parent does not have pre-existing custody should, as Birth Father argues, determine whether the party seeking 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 meaning of ICWA. But the majority fails to account for all that follows from that assumption. The majority repeatedly passes over the term “termination of parental rights” that, as defined by §1903, clearly encompasses an action aimed at severing Birth Father’s “parent-child relationship” with Baby Girl. The majority chooses instead to focus on phrases not statutorily defined that it then uses to exclude Birth Father from the benefits of his parental status. When one must disregard a statute’s use of terms that have been explicitly defined by Congress, that should be a signal that one is distorting, rather than faithfully reading, the law in question.B
The majority also does not acknowledge the full implications 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, but nothing in the majority’s reasoning limits its manufactured class of semiprotected ICWA parents to biological fathers who failed to support their child’s mother during pregnancy. Its logic would apply equally to noncustodial fathers who have actively participated in their child’s upbringing.
Consider an Indian father who, though he has never had custody of his biological child, visits her and pays all of his child support obligations. 8 Suppose that, due to deficiencies in the care the child received from her custodial parent, the State placed the child with a foster family and proposed her ultimate adoption by them. Clearly, the father’s parental rights would have to be terminated before the adoption could go forward. 9 On the majority’s view, notwithstanding the fact that this father would be a “parent” under ICWA, he would not receive the benefit of either §1912(d) or §1912(f). Presumably the court considering the adoption petition would have to apply some standard to determine whether termination of his parental rights was appropriate. But from whence would that standard come?
Not from the statute Congress drafted, according to the majority. The majority suggests that it might come from state law. See ante, at 13, n. 8. But it is incongruous to suppose that Congress intended a patchwork of federal and state law to apply in termination of parental rights proceedings. Congress enacted a statute aimed at protecting the familial relationships between Indian parents and their children because it concluded that state authorities “often failed to recognize the essential tribal relations of Indian people and the cultural and social standards 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 more demanding than the showing of unfitness under a high “clear and convincing evidence” standard that is the norm in the States, see 1 J. Hollinger, Adoption Law and 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)’s heightened standard for termination of parental rights, many will provide less. There is no reason to believe Congress wished to leave protection of the parental rights of a subset of ICWA “parent[s]” dependent on the happenstance of where a particular “child custody proceeding” takes place. I would apply, as the statute construed in its totality commands, the standards Congress provided in §§1912(d) and (f) to the termination of all ICWA “parent[s’]” parent-child relationships.II
The majority’s textually strained and illogical reading of the statute might be explicable, if not justified, if there were reason to believe that it avoided anomalous results or furthered a clear congressional policy. But neither of these conditions is present here.A
With respect to §1912(d), the majority states that it would be “unusual” to apply a rehabilitation requirement where a natural parent has never had custody of his child. Ante, at 14. The majority does not support this bare assertion, and in fact state child welfare authorities can and do provide reunification services for biological fathers who have not previously had custody of their children. 10 And notwithstanding the South Carolina Supreme Court’s imprecise interpretation of the provision, see 398 S. C., at 647–648, 731 S. E. 2d, at 562, §1912(d) does not require the prospective adoptive family to themselves undertake the mandated rehabilitative efforts. Rather, it requires the party seeking termination of parental rights to “satisfy the court that active efforts have been made” to provide appropriate remedial services.
In other words, the prospective adoptive couple have to make an evidentiary showing, not undertake person-to-person remedial outreach. The services themselves might be attempted by the Indian child’s Tribe, a state agency, or a private adoption agency. Such remedial efforts are a familiar requirement of child welfare law, including federal child welfare policy. See 42 U. S. C. §671(a)(15)(B) (requiring States receiving federal funds for foster care and adoption assistance to make “reasonable efforts . . . to preserve and reunify families” prior to foster care placement or removal of a child from its home).
There is nothing “bizarre,” ante, at 14, about placing on the party seeking to terminate a father’s parental rights the burden of showing that the step is necessary as well as justified. “For . . . natural parents, . . . the consequence of an erroneous termination [of parental rights] is the unnecessary destruction of their natural family.” Santosky, 455 U. S., at 766. In any event, the question is a nonissue in this case given the family court’s finding that Birth Father is “a fit and proper person to have custody of his child” who “has demonstrated [his] ability to parent effectively” and who possesses “unwavering love for this child.” App. to Pet. for Cert. 128a (Sealed). Petitioners cannot show that rehabilitative efforts have “proved unsuccessful,” 25 U. S. C. §1912(d), because Birth Father is not in need of rehabilitation. 11B
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 argument is that Congress could not possibly have intended to recognize 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.
But this supposed anomaly is illusory. In fact, the law of at least 15 States did precisely that at the time ICWA was passed. 12 And the law of a number of States still does so. The State of Arizona, for example, requires that notice of an adoption petition be given to all “potential father[s]” and that they be informed of their “right to seek custody.” Ariz. Rev. Stat. §§8–106(G)–(J) (West Supp. 2012). In Washington, an “alleged father[’s]” consent to adoption is required absent the termination of his parental rights, Wash. Rev. Code §§26.33.020(1), 26.33.160(1)(b) (2012); and those rights may be terminated only “upon a showing by clear, cogent, and convincing evidence” not only that termination is in the best interest of the child and that the father is withholding his consent to adoption contrary to child’s best interests, but also that the father “has failed to perform parental duties under circumstances showing a substantial lack of regard for his parental obligations,” §26.33.120(2). 13
Without doubt, laws protecting biological fathers’ parental 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 painful” 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 children have a reciprocal interest in knowing their biological parents. 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] 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 relationship 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 natural parent’s “liberty interest in family privacy,” which has its source “in intrinsic human rights,” with a foster parent’s parallel interest in his or her relationship with a child, which has its “origins in an arrangement in which the State has been a partner from the outset”). This preference is founded in the “presumption that fit parents act in the best interests of their children.” Troxel v. Granville, 530 U. S. 57, 68 (2000) (plurality opinion). “ ‘[H]istorically [the law] has recognized that natural bonds of affection [will] lead parents’ ” to promote their child’s well-being. Ibid. (quoting Parham v. J. R., 442 U. S. 584, 602 (1979) ).
Balancing the legitimate interests of unwed biological fathers against the need for stability in a child’s family situation is difficult, to be sure, and States have, over the years, taken different approaches to the problem. Some States, like South Carolina, have opted to hew to the constitutional baseline established by this Court’s precedents 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 –256 (1978); Lehr, 463 U. S., at 261. Other States, however, have decided to give the rights of biological fathers more robust protection and to afford them consent rights on the basis of their biological link to the child. At the time that ICWA was passed, as noted, over one-fourth of States did so. See supra, at 17–18.
ICWA, on a straightforward reading of the statute, is consistent with the law of those States that protected, and protect, birth fathers’ rights more vigorously. This reading 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 would instead grant it a degree of protection commensurate with the more robust state-law standards. 14C
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 perplexing of all. A central purpose of ICWA is to “promote the stability and security of Indian . . . families,” 25 U. S. C. §1902, in part by countering the trend of placing “an alarmingly high percentage of [Indian] children . . . in 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, see supra, 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 the necessity of adoptive placement and makes adoptions of Indian children by non-Indian families less likely.
The majority may consider this scheme unwise. But no principle of construction licenses a court to interpret a statute with a view to averting the very consequences Congress expressly stated it was trying to bring about. Instead, it is the “ ‘judicial duty to give faithful meaning to 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 the majority’s view was to prevent the dissolution of “intact” Indian families. Ante, at 9–10. We may not, however, give effect only to congressional goals we designate “primary” while casting aside others classed as “secondary”; we must apply the entire statute Congress has written. While there are indications that central among Congress’ concerns in enacting ICWA was the removal of Indian children from homes in which Indian parents or other guardians had custody of them, see, e.g., §§1901(4), 1902, Congress also recognized that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” §1901(3). As we 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 of citizens is adversely affected by the placement of Indian children in homes with no connection to the tribe, whether or not those children were initially in the custody of an Indian parent. 15
Moreover, the majority’s focus on “intact” families, ante, at 10, begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much. ICWA’s definitions of “parent” and “termination of parental rights” provided in §1903 sweep broadly. They should be honored.D
The majority does not rely on the theory pressed by petitioners and the guardian ad litem that the canon of constitutional avoidance compels the conclusion that ICWA is inapplicable here. See Brief for Petitioners 43–51; Brief for Respondent Guardian Ad Litem 48–58. It states instead that it finds the statute clear. 16 Ante, at 17. But the majority nevertheless offers the suggestion that a contrary result would create an equal protection problem. Ibid. Cf. Brief for Petitioners 44–47; Brief for Respondent Guardian Ad Litem 53–55.
It is difficult to make sense of this suggestion in light of our precedents, which squarely hold that classifications based on Indian tribal membership are not impermissible racial classifications. See United States v. Antelope, 430 U. S. 641 –647 (1977); Morton v. Mancari, 417 U. S. 535 –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 intimation 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 vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian” (emphasis added)). I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978) . I am particularly averse to doing so when the Federal Government requires Indian tribes, as a prerequisite for official recognition, to make “descen[t] from a historical Indian tribe” a condition of membership. 25 CFR §83.7(e) (2012).
The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.III
Because I would affirm the South Carolina Supreme Court on the ground that §1912 bars the termination of Birth Father’s parental rights, I would not reach the question of the applicability of the adoptive placement preferences of §1915. I note, however, that the majority does not and cannot foreclose the possibility that on remand, Baby Girl’s paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl. If these parties do so, and if on remand Birth Father’s parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in §1915. The majority cannot rule prospectively that §1915 would not apply to an adoption petition that has not yet been filed. Indeed, the statute applies “[i]n any adoptive placement of an Indian child under State law,” 25 U. S. C. §1915(a) (emphasis added), and contains no temporal qualifications. It would indeed be an odd result for this Court, in the name of the child’s best interests, cf. ante, at 15, to purport to exclude from the proceedings possible custodians for Baby Girl, such as her paternal grandparents, who may have well-established relationships with her.* * *
The majority opinion turns §1912 upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress’ express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes’ relationships with the future citizens who are “vital to [their] continued existence and integrity.” §1901(3).
The majority casts Birth Father as responsible for the painful circumstances in this case, suggesting that he intervened “at the eleventh hour to override the mother’s decision and the child’s best interests,” ante, at 16. I have no wish to minimize the trauma of removing a 27-month-old child from her adoptive family. It bears remembering, however, that Birth Father took action to assert his parental rights when Baby Girl was four months old, as soon as 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 anguish might have been avoided[;] and in any case the law cannot be applied so as automatically to “reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.” ’ ” 398 S. C., at 652, 731 S. E. 2d, at 564 (quoting Holyfield, 490 U. S., at 53–54).
The majority’s hollow literalism distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, 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.
1 For this reason, the South Carolina Supreme Court held that Birth Father did not give valid consent to Baby Girl’s adoption when, four months after her birth, he signed papers stating that he accepted service and was not contesting the adoption. See 398 S. C. 625, 645–646, 731 S. E. 2d 550, 561 (2012). See also ante, at 5. Petitioners do not challenge this aspect of the South Carolina court’s holding.
2 Petitioners concede that, assuming Birth Father is a “parent” under ICWA, the notice and counsel provisions of 25 U. S. C. §§1912(a) and (b) apply to him. See Tr. of Oral Arg. 13.
3 The majority’s discussion of §1912(d) repeatedly references Birth Father’s purported “abandon[ment]” of Baby Girl, ante, at 12, 13, n. 8, 14, and it contends that its holding with regard to this provision is limited to such circumstances, see ante, at 13, n. 8; see also ante, at 1 (Breyer, J., concurring). While I would welcome any limitations on the majority’s holding given that it is contrary to the language and purpose of the statute, the majority never explains either the textual basis or the precise scope of its “abandon[ment]” limitation. I expect that the majority’s inexact use of the term “abandon[ment]” will sow confusion, because it is a commonly used term of art in state family law that does not have a uniform meaning from State to State. See generally 1 J. Hollinger, Adoption Law and Practice §4.04[a][ii] (2012) (discussing various state-law standards for establishing parental abandonment ofa child).
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 evi-dence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” §1912(e).
5 For these reasons, I reject the argument advanced by the United States that subsection (d) applies in the circumstances of this case but subsection (f) does not. See Brief for United States as Amicus Curiae 24–26. The United States’ position is contrary to the interrelated nature of §§1912(d), (e), and (f). Under the reading that the United States proposes, in a case such as this one the curative provision would stand alone; ICWA would provide no evidentiary or substantive standards by which to measure whether foster care placement or termination of parental rights could be ordered in the event that rehabilitative efforts did not succeed. Such a scheme would be oddly incomplete.
6 The majority’s interpretation is unpersuasive even if one focuses exclusively on the phrase “continued custody” because, as Justice Scalia explains, ante, at 1 (dissenting opinion), nothing about the adjective “continued” mandates the retrospective, rather than prospective, application of §1912(f)’s standard.
7 The majority overlooks Birth Father’s principal arguments when it dismisses his reading of §1912(f) as “nonsensical.” Ante, at 8. He does argue that if one accepts petitioners’ view that it is impossible to make a determination of likely harm when a parent lacks custody, then the consequence would be that “ ‘[n]o termination of parental rights may be ordered.’ ” Brief for Respondent Birth Father 39 (quoting §1912(f)). But Birth Father’s primary arguments assume that it is indeed possible to make a determination of likely harm in the circumstances of this case, and that parental rights can be terminated if §1912(f) is met. See id., at 40–42.
8 The majority attempts to minimize the consequences of its holding by asserting that the parent-child relationships of noncustodial fathers with visitation rights will be at stake in an ICWA proceeding in only“a relatively small class of cases.” Ante, at 13, n. 8. But it offers no support for this assertion, beyond speculating that there will not be many fathers affected by its interpretation of §1912(d) because it is qualified by an “abandon[ment]” limitation. Ibid. Tellingly, the major-ity 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 ICWA parents that the majority’s opinion creates. It also includes, for example, biological fathers who have not yet established a relationship with their child because the child’s mother never informed them of the pregnancy, see, e.g., In re Termination of Parental Rights of Biological Parents of Baby Boy W., 1999 OK 74, 988 P. 2d 1270, told them falsely that the pregnancy ended in miscarriage or termination, see, e.g., A Child’s Hope, LLC v. Doe, 178 N. C. App. 96, 630 S. E. 2d 673 (2006), or otherwise obstructed the father’s involvement in the child’s life, see, e.g., In re Baby Girl W., 728 S. W. 2d 545 (Mo. App. 1987) (birth mother moved and did not inform father of her whereabouts); In re Petition of Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancy expenses until birth mother cut off contact with him and told him that their child had died shortly after birth). And it includes biological fathers who did not contribute to pregnancy expenses because they were unable to do so, whether because the father lacked sufficient means, the expenses were covered by a third party, or the birth mother did not pass on the relevant bills. See, e.g., In re Adoption of B. V., 2001 UT App 290, ¶¶ 24–31, 33 P. 3d 1083, 1087–1088. The majority expresses the concern that my reading of the statute would produce “far-reaching consequences,” because “even a sperm donor” would be entitled to ICWA’s protections. Ante, at 13–14, n. 8. If there are any examples of women who go to the trouble and expense of artificial insemination and then carry the child to term, only to put the child up for adoption or be found so unfit as mothers that state authorities attempt an involuntary adoptive placement—thereby necessitating termination of the parental rights of the sperm donor father—the ma-jority does not cite them. As between a possibly overinclusive in-terpretation of the statute that covers this unlikely class of cases, and the majority’s underinclusive interpretation that has the very real consequence of denying ICWA’s protections to all noncustodial biological fathers, it is surely the majority’s reading that is contrary to ICWA’s design.
9 With a few exceptions not relevant here, before a final decree of adoption may be entered, one of two things must happen: “the biological parents must either voluntarily relinquish their parental rights or have their rights involuntarily terminated.” 2A. Haralambie, Handling Child Custody, Abuse and Adoption Cases §14.1, pp.764–765 (3d ed. 2009) (footnote omitted).
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’ order reunification services for a biological father if the court determines that the services will benefit the child”); In re T. B. W., 312 Ga. App. 733, 734–735, 719 S. E. 2d 589, 591 (2011) (describing reunification services provided to biological father beginning when “he had yet to establish his paternity” under state law, including efforts to facilitate visitation and involving father in family “ ‘team meetings’ ”); In re Guardianship of DMH, 161 N. J. 365, 391–394, 736 A. 2d 1261, 1275–1276 (1999) (discussing what constitutes “reasonable efforts” to reunify a noncustodial biological father with his children in accordance with New Jersey statutory requirements); In re Bernard T., 319 S. W. 3d 586, 600 (Tenn. 2010) (stating that “in appropriate circumstances, the Department [of Children’s Services] must make reasonable efforts to reunite a child with his or her biological parents or legal parents or even with the child’s putative biological father”).
11 The majority’s concerns about what might happen if no state or tribal authority stepped in to provide remedial services are therefore irrelevant here. Ante, at 14, n. 9. But as a general matter, if a parent has rights that are an obstacle to an adoption, the stateand federal-law safeguards of those rights must be honored, irrespective of pro-spective adoptive parents’ understandable and valid desire to see the adoption finalized. “We must remember that the purpose of an adoption is to provide a home for a child, not a child for a home.” In re Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190 (Heiple, J,. supplemental opinion supporting denial of rehearing).
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 (West 1977) (same); Nev. Rev. Stat. §§127.040, 127.090 (1971) (same); R. I. Gen. Laws §§15–7–5, 15–7–7 (Bobbs-Merrill 1970) (same); Conn. Gen. Stat. §§45–61d, 45–61i(b)(2) (1979) (natural father’s consent required if paternity acknowledged or judicially established); Fla. Stat. §63.062 (1979) (same); Ore. Rev. Stat. §§109.092, 109.312 (1975) (same); S. D. Codified Laws §§25–6–1.1, 25–6–4 (Allen Smith 1976) (natural father’s consent required if mother identifies him or if paternity is judicially established); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-Merrill Supp. 1980) (same); Ala. Code §26–10–3 (Michie 1977) (natural father’s consent required when paternity judicially established); Minn. Stat. §§259.24(a), 259.26(3)(a), (e), (f), 259.261 (1978) (natural father’s consent required when identified on birth certificate, paternity judi-cially established, or paternity asserted by affidavit); N. H. Rev. Stat. Ann. §170–B:5(I)(d) (1977) (natural father’s consent required if he files notice of intent to claim paternity within set time from notice of prospective adoption); Wash. Rev. Code §§26.32.040(5), 26.32.085 (1976) (natural father’s consent required if paternity acknowledged, judicially established, or he files notice of intent to claim paternity within set time from notice of prospective adoption); W. Va. Code Ann. §48–4–1 (Michie Supp. 1979) (natural father’s consent required if father admits pater-nity by any means). See also Del. Code Ann., Tit. 13, §908(2) (Michie Supp. 1980) (natural father’s consent required unless court finds that dispensing with consent requirement is in best interests of the child); Wyo. Stat. Ann. §§1–22–108, 1–22–109 (Michie 1988) (same).
13 See also, e.g., Nev. Rev. Stat. §§127.040(1)(a), 128.150 (2011).
14 It bears emphasizing that the ICWA standard for termination of parental rights of which Birth Father claims the benefit is more protective than, but not out of step with, the clear and convincing standard generally 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 South Carolina Supreme Court. Of course, it will often be the case that cus-tody is subsequently granted to a child’s fit parent, consistent withthe presumption that a natural parent will act in the best interests of his child. See supra, at 19–20.
15 Birth Father is a registered member of the Cherokee Nation, a fact of which Birth Mother was aware at the time of her pregnancy and of which she informed her attorney. See 398 S. C. 625, 632–633, 731 S. E. 2d 550, 554 (2012).
16 Justice Thomas concurs in the majority’s interpretation because, although he finds the statute susceptible of more than one plausible reading, he believes that the majority’s reading avoids “significant constitutional problems” concerning whether ICWA exceeds Congress’ authority under the Indian Commerce Clause. Ante, at 1, 3–12. No party advanced this argument, and it is inconsistent with this Court’s precedents holding that Congress has “broad general powers to leg-islate in respect to Indian tribes, powers that we have consistently described as plenary and exclusive,” founded not only on the Indian Commerce Clause but also the Treaty Clause. United States v. Lara, 541 U. S. 193 –201 (2004) (internal quotation marks omitted).
SUPREME COURT OF THE UNITED STATES
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, a minor child under the age of fourteen years, et al.
on writ of certiorari to the supreme court of south carolina
[June 25, 2013]
Justice Scalia, dissenting.
I join Justice Sotomayor’s dissent except as to one detail. I reject the conclusion that the Court draws from the words “continued custody” in 25 U. S. C §1912(f) not because “literalness may strangle meaning,” see post, at 11, but because there is no reason that “continued” must refer to custody in the past rather than custody in the future. I read the provision as requiring the court to satisfy itself (beyond a reasonable doubt) not merely that initial or temporary custody is not “likely to result in serious emotional or physical damage to the child,” but that continued custody is not likely to do so. See Webster’s New International Dictionary 577 (2d ed. 1950) (defining “continued” as “[p]rotracted in time or space, esp. without interruption; constant”). For the reasons set forth in Justice Sotomayor’s dissent, that connotation is much more in accord with the rest of the statute.
While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.
SUPREME COURT OF THE UNITED STATES
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, a minor child under the age of fourteen years, et al.
on writ of certiorari to the supreme court of south carolina
[June 25, 2013]
Justice Breyer, concurring.
I join the Court’s opinion with three observations. First, the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life. That category of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range of others in between. Most of those who fall within that category seem to fall outside the scope of the language of 25 U. S. C. §§1912(d) and (f). Thus, while I agree that the better reading of the statute is, as the majority concludes, to exclude most of those fathers, ante, at 8, 12, I also understand the risk that, from a policy perspective, the Court’s interpretation could prove to exclude too many. See post, at 13, 22–23 (Sotomayor, J., dissenting).
Second, we should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid “all of his child support obligations.” See post, at 13. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child. See post, at 13 n. 8. The Court need not, and in my view does not, now decide whether or how §§1912(d) and (f) apply where those circumstances are present.
Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families . . . . in the absence of good cause to the contrary.” Further, §1915(c) allows the “Indian child’s tribe” to “establish a different order of preference by resolution.” Could these provisions allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but do not here try to answer, the question.
SUPREME COURT OF THE UNITED STATES
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, a minor child under the age of fourteen years, et al.
on writ of certiorari to the supreme court of south carolina
[June 25, 2013]
Justice Thomas, concurring.
I join the Court’s opinion in full but write separately to explain why constitutional avoidance compels this out-come. 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 –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 his parental rights via a text message to Birth Mother, claimed a federal right under the ICWA to block the adoption and to obtain custody.
The ICWA establishes “federal standards that govern state-court child custody proceedings involving Indian children.” Ante, at 2. The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U. S. C. §1903(4). As relevant, the ICWA defines “child custody proceeding,” §1903(1), to include “adoptive placement,” which means “the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption,” §1903(1)(iv), and “termination of parental rights,” which means “any action resulting in the termination of the parent-child relationship,” §1903(1)(ii).
The ICWA restricts a state court’s ability to terminate the parental rights of an Indian parent in two relevant ways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Section 1912(d) prohibits a state court from terminating parental rights until the court is satisfied “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” A third provision creates specific placement preferences for the adoption of Indian children, which favor placement with Indians over other adoptive families. §1915(a). Operating together, these requirements often lead to different outcomes than would result under state law. That is precisely what happened here. See ante, at 6 (“It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law”).
The ICWA recognizes States’ inherent “jurisdiction over Indian child custody proceedings,” §1901(5), but asserts that federal regulation is necessary because States “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards preailing in Indian communities and families,” ibid. However, Congress may regulate areas of traditional state concern only if the Constitution grants it such power. Admt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved.II
The ICWA asserts that the Indian Commerce Clause, Art. I, §8, cl. 3, and “other constitutional authority” provides Congress with “plenary power over Indian affairs.” §1901(1). The reference to “other constitutional authority” is not illuminating, and I am aware of no other enumer-ated power that could even arguably support Congress’ intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes”); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev. 201, 210 (2007) (hereinafter Natelson) (evaluating, and rejecting, other potential sources of authority supporting congressional power over Indians). The assertion of plenary authority must, therefore, stand or fall on Congress’ power under the Indian Commerce Clause. Although this Court has said that the “central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989) , neither the text nor the original understanding of the Clause supports Congress’ claim to such “plenary” power.A
The Indian Commerce Clause gives Congress authority “[t]o regulate Commerce . . . with the Indian tribes.” Art. I, §8, cl. 3 (emphasis added). “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United States v. Lopez, 514 U. S. 549, 585 (1995) (Thomas, J., concurring). See also 1 S. Johnson, A Dictionary of the English Language 361 (4th rev. ed. 1773) (reprint 1978) (defining commerce as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”). “[W]hen Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably.” Lopez, supra, at 586 (Thomas, J., concurring). The term “commerce” did not include economic activity such as “manufacturing and agriculture,” ibid., let alone noneconomic activity such as adoption of children.
Furthermore, the term “commerce with Indian tribes” was invariably used during the time of the founding to mean “ ‘trade with Indians.’ ” See, e.g., Natelson, 215–216, and n. 97 (citing 18th-century sources); Report of Committee on Indian Affairs (Feb 20, 1787), in 32 Journals of the Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed. 1936) (hereinafter J. Cont’l Cong.) (using the phrase “commerce with the Indians” to mean trade with the Indians). And regulation of Indian commerce generally referred to legal structures governing “the conduct of the merchants engaged in the Indian trade, the nature of the goods they sold, the prices charged, and similar matters.” Natelson 216, and n. 99.
The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is given the power to regulate Commerce “with the Indian tribes.” The Clause does not give Congress the power to regulate commerce with all Indian persons any more than the Foreign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading of the text, thus, confirms that Congress may only regulate commercial interactions—“commerce”—taking place with established Indian communities—“tribes.” That power is far from “plenary.”B
Congress’ assertion of “plenary power” over Indian affairs is also inconsistent with the history of the Indian Commerce Clause. At the time of the founding, the Clause was understood to reserve to the States general police powers with respect to Indians who were citizens of the several States. The Clause instead conferred on Congress the much narrower power to regulate trade with Indian tribes—that is, Indians who had not been incorporated into the body-politic of any State.1
Before the Revolution, most Colonies adopted their own regulations governing Indian trade. See Natelson 219, and n. 121 (citing colonial laws). Such regulations were necessary because colonial traders all too often abused their Indian trading partners, through fraud, exorbitant prices, extortion, and physical invasion of Indian territory, among other things. See 1 F. Prucha, The Great Father 18–20 (1984) (hereinafter Prucha); Natelson 220, and n. 122. These abuses sometimes provoked violent Indian retaliation. See Prucha 20. To mitigate these conflicts, most Colonies extensively regulated traders engaged in commerce with Indian tribes. See e.g., Ordinance to Regulate Indian Affairs, Statutes of South Carolina (Aug. 31, 1751), in 16 Early American Indian Documents: Treaties and Laws, 1607–1789, pp. 331–334 (A. Vaughan and D. Rosen eds. 1998). 1 Over time, commercial regulation at the colonial level proved largely ineffective, in part because “[t]here was no uniformity among the colonies, no two sets of like regulations.” Prucha 21.
Recognizing the need for uniform regulation of trade with the Indians, Benjamin Franklin proposed his own “articles of confederation” to the Continental Congress on July 21, 1775, which reflected his view that central control over Indian affairs should predominate over local control. 2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s proposal was not enacted, but in November 1775, Congress empowered a committee to draft regulations for the Indian trade. 3 id., at 364, 366. On July 12, 1776, the committee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin’s proposals. 5 id., at 545, 546, n. 1. The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress the exclusive power to acquire land from the Indians out-side state boundaries, once those boundaries had been es-tablished. Id., at 549. This version also gave Congress “the sole and exclusive Right and Power of . . . Regulating the Trade, and managing all Affairs with the Indians.” Id. at 550.
On August 20, 1776, the Committee of the Whole presented to Congress a revised draft, which provided Congress with “the sole and exclusive right and power of . . . regulating the trade, and managing all affairs with the Indians.” Id., at 672, 681–682. Some delegates feared that the Articles gave Congress excessive power to in-terfere 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 “ex-ercise[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 Confederation reveals the delegates’ concern with protecting the power of the States to regulate Indian persons who were politically incorporated into the States. This concern for state power reemerged during the drafting of the Constitution.2
The drafting history of the Constitutional Convention also supports a limited construction of the Indian Commerce Clause. On July 24, 1787, the convention elected a drafting committee—the Committee of Detail—and charged it to “report a Constitution conformable to the Res-olutions 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 In-dian 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 Committee of Eleven for further action. Id., at 473 (Journal), 481 (J. Madison). That Committee recommended adding to the Commerce Clause the phrase, “and with the Indian tribes,” id., at 493, which the Convention ultimately adopted.
It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulate trade with the Indians and the power to regulate all In-dian affairs. By limiting Congress’ power to the former, the Framers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1090 (2004).
During the ratification debates, opposition to the Indian Commerce Clause was nearly nonexistent. See Natelson 248 (noting that Robert Yates, a New York Anti-Federalist was “almost the only writer who objected to any part [of ] of the Commerce Clause—a clear indication that its scope was understood to be fairly narrow” (footnote omitted)). Given the Anti-Federalists’ vehement opposition to the Constitution’s other grants of power to the Federal Government, this silence is revealing. The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress—namely, the power to regulate trade with Indian tribes living beyond state borders. And this feature of the Constitution was welcomed by Federalists and Anti-Federalists alike due to the considerable interest in expanding trade with such Indian tribes. See, e.g., The Federalist No. 42, at 265 (J. Madison) (praising the Constitution for removing the obstacles that had existed under the Articles of Confederation to federal control over “trade with Indians” (emphasis added)); 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 580 (2d ed. 1863) (Adam Stephens, at the Virginia ratifying convention, June 23, 1788, describing the Indian tribes residing near the Mississippi and “the variety of articles which might be obtained to advantage by trading with these people”); The Federalist No. 24, at 158 (A. Hamilton) (arguing that frontier garrisons would “be keys to the trade with the Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24, 1788, in 15 The Documentary History of the Ratification of the Constitution 462, 465 (J. Kaminski & G. Saladino eds. 2012) (conceding that there must be a standing army for some purposes, including “trade with Indians”). There is little evidence that the ratifiers of the Constitution understood the Indian Commerce Clause to confer anything resembling plenary power over Indian affairs. See Natelson 247–250.III
In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” §1903(1), not “commerce.” It was enacted in response to concerns that “an alarmingly high percentage of Indian families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4). The perceived problem was that many Indian children were “placed in non-Indian foster and adoptive homes and institutions.” Ibid. This problem, however, had nothing to do with commerce.
Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes. Sections 1912(d) and (f ), and §1915(a) apply to all child custody proceedings involving an Indian child, regardless of whether an Indian tribe is involved. This case thus does not directly implicate Congress’ power to “legislate in respect to Indian tribes.” United States v. Lara, 541 U. S. 193, 200 (2004) (emphasis added). Baby Girl was never domiciled on an Indian Reservation, and the Cherokee Nation had no jurisdiction over her. Cf. Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30 –54 (1989) (holding that the Indian Tribe had exclusive jurisdiction over child custody proceedings, even though the children were born off the reservation, because the children were “domiciled” on the reservation for purposes of the ICWA). Although Birth Father is a registered member of The Cherokee Nation, he did not live on a reservation either. He was, thus, subject to the laws of the State in which he resided (Oklahoma) and of the State where his daughter resided during the custody proceedings (South Carolina). Nothing in the In-dian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of his status as an Indian. 3
Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional.* * *
Because the Court’s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur.
1 South Carolina, for example, required traders to be licensed, to be of good moral character, and to post a bond. Ordinance to Regulate Indian Affairs, in 16 Early American Indian Documents, at 331–334. A potential applicant’s name was posted publicly before issuing the license, so anyone with objections had an opportunity to raise them. Id., at 332. Restrictions were placed on employing agents, id., at 333–334, and names of potential agents had to be disclosed. Id., at 333. Traders who violated these rules were subject to substantial penalties. Id., at 331, 334.
2 Although Indians were generally considered “members” of a State if they paid taxes or were citizens, see Natelson 230, the precise definition of the term was “not yet settled” at the time of the foundingand was “a question of frequent perplexity and contention in the fed-eral councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J. Madison).
3 Petitioners and the guardian ad litem contend that applying the ICWA to child custody proceedings on the basis of race implicates equal protection concerns. See Brief for Petitioners 45 (arguing that the statute would be unconstitutional “if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race”); Brief for Respondent Guardian Ad Litem 48–49 (same). I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case.
ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-399, Adoptive Couple v. Baby Girl.
Lisa S. Blatt: Thank you, Mr. Chief Justice, and may it please the Court:
All parties agree that even if the birth father is a parent under the Indian Child Welfare Act, the State court decision below awarding custody to the father must nonetheless be reversed unless Sections 1912(d) or (f) create custodial rights that the father concededly does not have under State law.
Justice Sonia Sotomayor: Are you suggesting -- I don't know that the parties -- I know that the Government has said that (f) doesn't apply to the father, but (d) does, so there's not a full concession on your point.
But putting that aside, if it is a father who has visitation rights, and exercising all of his support obligations, is it your position that -- that because that father's not a custodian, he has no protections whatsoever under (d) or (e)?
The State can come and take the child away from an unfit mother or father if they're the ones with custody, and that responsible parent who only has visiting rights has no protections under (d), (e), or (f)?
Lisa S. Blatt: Well, under State law--
Justice Sonia Sotomayor: I'm not asking about State law--
Lisa S. Blatt: --Right.
I think that--
Justice Sonia Sotomayor: --I'm asking about Federal law.
Lisa S. Blatt: --Yes, it's Federal law, which requires custodial rights, would protect a father who has visitation, i.e., custodial rights under State law.
So in other words, that -- that is to say, if a father--
Justice Sonia Sotomayor: Well, (d) doesn't talk about custodial rights.
I do agree that (f) talks about continued--
Lisa S. Blatt: --Right.
Justice Sonia Sotomayor: --custody.
Lisa S. Blatt: Okay.
So let's talk about (d), because I think we are in agreement that the Respondents would have to agree that they either need to win under (d) or (f), and we can talk about Section 1915, but that's not a basis for father.
But section (d) -- and I'm reading from the blue brief at 8a -- says that it requires the party seeking the termination of parental rights to provide, quote,
"remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. "
Justice Sonia Sotomayor: Well, you don't think that a parent with custody -- well, you do think a parent with custody is the only definition of family, but why wouldn't a noncustodial parent with visitation rights be considered a family with that child?
Lisa S. Blatt: My understanding under State law, a parent who--
Justice Sonia Sotomayor: I'm not going to State law--
Chief Justice John G. Roberts: Could -- could I hear her answer, please?
Lisa S. Blatt: --Yes.
So the answer is, a parent with visitation rights has custody, so he's protected.
Under State law, if you're paying child support and you bring a paternity action and sue for visitation rights, that's a petition for custody.
So all a birth dad needs to do to protect himself is to acquire legal rights.
This father had no legal rights whatsoever, parental or custodial, and the word “ breakup ”, even the other side concedes, it's discontinuance of an existing legal relationship.
There was no legal relationship between this child and the birth father or his relatives.
Justice Sonia Sotomayor: --Well, there is a support obligation on that unwed father.
Lisa S. Blatt: No.
Justice Sonia Sotomayor: Why isn't that a parental right?
It's one of the parental rights the States enforce whether or not you want to provide support or not.
Lisa S. Blatt: If a child is being adopted, by definition, the -- the adoptive family would be providing support.
But let's take the -- let's take what a -- again, the definition of breakup.
There is no familial legal custodial parental relationship that either this father or the -- or his parents -- his extended family had with this child.
This adoption no more broke up an Indian family than his -- than this Hispanic sole custodial birth mother had raised the child herself.
Justice Sonia Sotomayor: So what do you do with the States that do give unwed fathers that don't support their children and who don't have an ongoing relationship the right to be considered first for adoption?
Why should we follow the definitions of South Carolina or those other States?
Why shouldn't we just give it a Federal meaning?
Lisa S. Blatt: Because there's--
Justice Sonia Sotomayor: As--
Lisa S. Blatt: --Because there's nothing in this Act that anyone can point to that was a basis for transferring custody to this father.
At most, there is an obligation, an exhaustion obligation, that if a custodial parent has something like a drug abuse problem the State has to remediate before the family is broken up.
What is so extraordinary about this case, particularly the United States' position, is that the adoptive parents' failure to remediate a dad meant that the child got custody of the dad.
So if this dad had had a drug problem, because there was no treatment of him the court held, well, that's a basis for giving the dad custody.
But there's no language in the statute that even remotely suggests that it's a rights-creating provision.
All of both of (d), (e), and (f) are protections that assume existing rights and then make it harder to terminate those rights.
Justice Antonin Scalia: Your -- your argument assumes that the phrase in the statute
"to prevent the breakup of the Indian family. "
only applies where -- where the father has custody.
I don't -- I don't know why that should be true.
If -- if that's what Congress meant, they could have put it much more narrowly.
They had a very broad phrase,
"to prevent the break up of an Indian family. "
And this guy is -- is the father of the child--
Lisa S. Blatt: So he--
Justice Antonin Scalia: --and they're taking the child away from him even though he wants it.
Lisa S. Blatt: --Okay.
But when you--
Justice Antonin Scalia: And that -- that is not the breakup of -- of an Indian family?
Lisa S. Blatt: --The only relationship the dad had is one of biology.
And, Justice Scalia, you cannot logically break up that biological relationship, nor can you provide remedial services to prevent the breakup of that biological relationship.
Justice Antonin Scalia: Oh, I see.
You're reading -- you're reading “ Indian family ” to mean something more than -- than a biological relationship, right?
You're going to hang a lot of -- a lot of other ornaments on that phrase?
Lisa S. Blatt: Well, I'm hanging -- I'm hanging a lot on two things.
Justice Antonin Scalia: I mean, it seems to me he's the father, the other woman's the mother, that's the -- that's the Indian family, the father, the mother, and the kid.
Lisa S. Blatt: He has a biological link that under State law was equivalent to a sperm donor.
Justice Antonin Scalia: He's the father.
He's the father.
Lisa S. Blatt: And so is a sperm donor under your definition.
He's a biological father and nothing else in the eyes of State law.
And under that view--
Justice Antonin Scalia: This isn't State law.
This is a Federal statute which uses an expansive phrase,
"the breakup of the Indian family. "
Lisa S. Blatt: --Right.
And there is no Indian family here.
The only breakup--
Justice Sonia Sotomayor: --What's the difference with a sperm donor?
I mean, I know that you raise that in your brief.
But, going back to Justice Scalia's point, if the choice is between a mother, a biological father, or a stranger, and if the father's fit, why do you think that the Federal statute requires that it be given to a stranger rather than to the biological father when the statute defines “ parent ” as the biological father?
Lisa S. Blatt: --And assuming all biological fathers that are acknowledged or established are swept in, which would include any biological father, the only stranger in this case was the birth father, who expressly repudiated all parental rights and had no custodial rights.
So, again, the problem the other side has--
Justice Ruth Bader Ginsburg: But he didn't.
I mean, he -- he said that he was prepared to surrender rights to the mother, but not to a stranger.
And when the issue of adoption came up, he said:
"Yes, I want to assert my parental rights. "
Lisa S. Blatt: --It was too late.
There's not a single State law that lets a dad, birth dad, hold that kind of veto power over a woman.
Justice Ruth Bader Ginsburg: Where does it -- where is there a reference in the definition of “ parent ” to a State law?
I see the -- which is the section which defines a parent?
Lisa S. Blatt: Section 1903(9).
But even assuming -- which is--
Justice Ruth Bader Ginsburg: Yes.
Lisa S. Blatt: --on page 4A.
Whether it's a Federal definition or a State law definition, I think everyone agrees you've got to at least look at some sort of State law.
But even if it's just a bare fact of paternity, meaning a biological link is established, they still have to have a basis for an extraordinary award of a transfer of custody when there's been no best interest determination and you have a dad who's a complete stranger with no -- no parental rights whatsoever.
Justice Ruth Bader Ginsburg: It says a parent means a biological parent of an Indian child, and he fits that definition.
And then the next section -- the next sentence doesn't have any reference to State law.
Lisa S. Blatt: That's right.
And again, assuming he is a parent -- they -- they need to win both points, Justice Ginsburg.
He needs to be a parent.
Now, if you're an ICWA parent, which means if you want to accept this definition of “ all biological ”, you do have rights under the Federal Act of getting notice and a right to counsel, and the tribe would have a right to intervene.
The question is, is there a basis for transferring custody under (d) or (f).
(F) is the one that requires continuing custody.
Justice Elena Kagan: But, Ms. Blatt, if he's a parent, why wouldn't some provision in 1912 give him some rights?
In other words, what's the point of making him a parent under that definitional section if he doesn't get any of the protections that 1912 provides for when to terminate rights?
Lisa S. Blatt: Because this -- this Act is not about creating rights that didn't otherwise exist.
It's about protecting rights and making it harder to terminate rights that already exist.
Justice Elena Kagan: But what's the point of labeling him a parent if he gets no parental rights under the statute and if the termination provisions don't apply to him?
Lisa S. Blatt: Notice, right to counsel, and heightened consent requirements.
So the mother here, the birth mother is a parent, so she had a right to notice, right to counsel, and heightened consent requirements.
Justice Elena Kagan: But what are they supposed to--
Lisa S. Blatt: So those are very significant.
Justice Elena Kagan: --Well, how are they significant?
I mean, I'm trying to understand this, because if you get notice, but then you have nothing to say in the proceeding because the statute gives you no rights and the statute doesn't provide any standards for terminating those rights--
Lisa S. Blatt: Right.
Justice Elena Kagan: --what are you supposed to do once you get notice?
Lisa S. Blatt: Justice Kagan, just because he's in the door as a parent, that doesn't mean the statute let him leave out the back door with the child when there was no, no determination with respect to -- I mean, any kind -- it would be unprecedented to think that because you had a failure to remediate to prevent the breakup of an Indian family, that's a basis for awarding custody?
And that's the United States' view, which is--
Justice Elena Kagan: I think you're not answering the question of what's the point of labeling him a parent if he gets none of the protections that the Act provides to a parent?
Lisa S. Blatt: --You're assuming that this entire Act was to make sure unwed dads who are Indian got more time than non-Indian dads to veto adoptions, and that had -- that's not even remotely the purpose of this.
Justice Stephen G. Breyer: Well, wait, wait, wait.
Isn't your answer 1915(a) still applies?
Lisa S. Blatt: 1915(a) still applies.
Justice Stephen G. Breyer: And so 1915(a) means -- that's right.
Lisa S. Blatt: Right.
Justice Stephen G. Breyer: So he does have a -- a considerable right.
Lisa S. Blatt: Well, 19--
Justice Stephen G. Breyer: I mean, they'll have to go through a set and decide.
They have to give it to him unless -- unless something overcomes the preference or there is good cause to the contrary.
Lisa S. Blatt: --He's not -- he didn't seek to adopt the child and he's not one of the preferred parties.
Justice Stephen G. Breyer: Well, you're thinking about this case.
I'm thinking in general.
I think the question--
Lisa S. Blatt: Well, no -- no father is a preferred party under 1915.
No father can -- can assert 1915.
Justice Ruth Bader Ginsburg: Doesn't 1915 preclude the adoptive parents because they're not in the preferred category?
If 1915(a) precludes the adoption, then the adoptive parents would have no legal basis for objecting to an award to the father.
Lisa S. Blatt: --Right.
Well, we have three responses.
First, that provision assumes that somebody actually in that -- in that statute stepped up to adopt the child, and no one did here.
Second, it would raise grave constitutional concerns.
I mean, just look at (a)(3) on the other Indian families if Congress presumptively presumed that a non-Indian parent was unfit to raise any child with any amount of Indian blood.
And so it would either have to -- it's not implicated here or resolved by good cause.
Otherwise, you do have an extraordinary reading, Justice Ginsburg, of a statute that would override a birth mother's right to choose the adoptive parents for her child.
Chief Justice John G. Roberts: Is it your position that the preference is absolute or is it simply a factor to be considered with the other -- in other words, if every other factor suggests that the best interests of the child are served by placement with the adoptive couple, does the preference under 1915(a) trump all those other interests?
Lisa S. Blatt: It's not our view.
Our view is you would have -- you absolutely would have had good cause with -- here when you had the 27 months and also the mother's choice.
The tribe 's position is that--
Justice Ruth Bader Ginsburg: It's not listed under the -- there are guidelines for what constitutes good cause.
Lisa S. Blatt: --The best interests of the child is not listed under the Government's guidelines, which again is extraordinary.
It's also extraordinary that any other adopt -- any other Indian would get a preference whether or not that Indian had the same tribal member.
Justice Anthony Kennedy: In -- in your view, at what point, at what date did the Indian father lose the right to ask for custody?
Because he changed his mind in -- in January, there was about a 5-day period there.
Lisa S. Blatt: Yeah.
Justice Anthony Kennedy: The adoption proceedings had not concluded.
Lisa S. Blatt: Right.
Justice Anthony Kennedy: And at this point he said, in effect: I've changed my mind.
Lisa S. Blatt: So State law is you have to support the mother during pregnancy or at birth.
So the cases are pretty clear that the father can't wait till he learns of the adoption.
Justice Anthony Kennedy: So the State law determines when his rights under the Federal Act end?
Lisa S. Blatt: No.
State law determines just when you have parental rights to begin with.
So if there's no question that this particular dad, had State law applied, the adoption would have gone forward and his rights would have been terminated by virtue of his lack of a right to -- to object to the adoption.
Justice Antonin Scalia: Unless we believe that the Federal statute determines when he has parental rights by defining “ parent ” to include a biological father.
Lisa S. Blatt: Yes, but you still have--
Justice Antonin Scalia: If that's the case, then what you said doesn't apply.
Lisa S. Blatt: --custodial rights, though.
That's not a basis for granting him custodial rights.
This -- again, the -- we can talk about (f), but I think (f) is pretty obvious that that assumes preexisting custody to be continued.
Justice Antonin Scalia: Yes, I wanted you to talk about (f).
Are you going to say something about that or--
Lisa S. Blatt: Yes, and I do--
Justice Antonin Scalia: --Are you going to leave it to the Government?
Lisa S. Blatt: --No.
Justice Antonin Scalia: You don't agree with the Government's position, do you?
Lisa S. Blatt: Well, the Government agrees with us on (f).
But if you read (d), by the way, it is inextricably intertwined with (e) and (f).
It's talking about the breakup of a removal proceeding under (f) or a foster care proceeding under (e), and the Government concedes that neither of those provisions create rights; they just make it harder to terminate the custodial rights of a parent who has custody that can be continued.
The other side doesn't really have a definition of “ custody ” or “ continue ” that would sweep in a dad without any parental rights.
And I do just want to say in terms of looking, taking one step back.
This is not the case that Congress had in mind when it passed the Act to halt the depletion of the tribal population.
This involves accretion and conscripting other people's children to grow the tribal population based solely on a biological link.
Justice Elena Kagan: Ms. Blatt, continuing on the assumption that this man is a parent under the statutory definition, what your argument seems to be suggesting is that there are really two classes of parents under the statute, right, that everybody is labeled a parent, but then there are the parents who get the protections of -- of the termination of rights provision and the parents who don't.
And I'm just wondering why if this statute creates two classes of parents it didn't say that in a more upfront kind of way.
Lisa S. Blatt: Yes.
Justice Elena Kagan: It seems a strange thing to read into a statute in this sort of backhanded way that there are really two kinds of parents.
Lisa S. Blatt: Well, I think it's rather completely upside down that this entire statute, with 20 or 24 references to removal, custody, return of child to the parent, is somehow being read to create rights.
There is no language in this statute that creates custodial rights, and the birth father in this case, because of an exhaustion failure under (d), walked off with the child without any best interest determination.
If I could--
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT GUARDIAN AD LITEM IN SUPPORT OF PETITIONERS
Paul D. Clement: Mr. Chief Justice, and may it please the Court:
But for the application of ICWA, two things would be crystal clear: The birth father would have absolutely no parental or custodial rights under State law or the Constitution; and second, the baby girl would be entitled to a custodial determination that focused on her best interests.
Now, the lower courts--
Justice Sonia Sotomayor: What do you do with the lower court's determination that one of the factors of the best interest calculus was the Federal policy to ensure that Indian children, children of biological Indian parents, at least one, should be raised with their parents?
Because the lower court said it thought it was in the best interest of this child to stay with its birth father in light of the Federal policy.
So I disagree with your colleague that there wasn't a best interest--
Paul D. Clement: --Justice Sotomayor, would that it were true that the Federal preference was one factor in a multifactor test that looked at this child in her best interest.
That did not happen here.
And if you have any doubt about that, look at page 40a of the petition appendix.
And what the lower court--
Justice Sonia Sotomayor: --What do I do with the lower court's finding that this father, despite not being married to his prior lover, had children, was attentive of those children, had the resources to raise the child?
What do we with -- why are you--
Paul D. Clement: --What you do with that, Justice Sotomayor, is you look what context those findings were made.
Those findings were made in the context of 1912(f), and the court specifically said that for those purposes all I can look at is the birth father and whether this new custodial relationship beyond a reasonable doubt would pose a serious harm to the girl.
And what he--
Justice Sonia Sotomayor: --But they looked at something else that everybody's ignoring--
Justice Antonin Scalia: Please finish.
Paul D. Clement: --What the court specifically said is they looked at the expert testimony of how it would cause trauma, despair, anxiety, depression on this baby girl to be taken from her parents, and the court specifically said all of that was legally irrelevant because 1912(f) only lets you look at the harm from the new custodial relationship; it doesn't let you look at any harm from the breakup of the previous custodial relationship.
And all of that would make sense if you were talking about 912(f)'s application to the situations it's designed for.
Justice Anthony Kennedy: Well, and even in that sense, serious emotional and physical damage is a much different threshold than the best interests of the child, even on the statutory terms.
Paul D. Clement: It's miles away.
And it's the appropriate standard when you're taking somebody who has existing legal custody and depriving them of it.
But everywhere in the law, including ICWA, when you make an initial placement of a child in a new custodial setting, you don't do that unless you look at the child's best interest.
And look 1916(a) of ICWA, which is the only provision in the Act that specifically contemplates a child being placed in a new custodial setting.
It talks about what happens if you have an adoption and then the adoptive parents for some reason terminate their rights and then you send the child back to their original Indian custodian.
And in that situation, recognizing that when there's been a break of custody, you don't just send somebody off to a -- a new setting based on beyond a reasonable doubt; you look at the best interests of the child.
Justice Sonia Sotomayor: --Mr. Clement, can I go back to that best interest calculus.
There's two timeframes in my mind to look at: In January, when he asserted his parental rights and 2 years later when the trial was heard.
If there's serious emotional harm, I think the court below said: We're not looking at what happens at the time we're deciding the custody issue, because otherwise, we're going to give custody by estoppel.
We're going to encourage people to hold on to kids and create the serious physical harm.
In January, when he asserted his rights, that's what we're looking at.
What was in the best interests of the child at the time the issue was raised, and that was 4 or 5 months after the birth of the child.
Paul D. Clement: --Well, Justice Sotomayor, I'm here representing the guardian who represents the best interest of the child.
From the child's perspective, the child really doesn't care whose fault it was when they were brought in one custodial situation or another.
They just want a determination that focuses on at the relevant time, that time, what's in their best interest.
And so in the same way that we think if you rule in our favor and you remand to the lower court that there has to be a best interest determination that takes into account the current situation, notwithstanding that that would be on the hypothesis that the last 15 months of custody were based on a legal misunderstanding, we still think this girl--
Justice Sonia Sotomayor: So we're going to freeze it at that point or are we going to freeze it today, after the child's been with his -- with her father for 2 years?
Paul D. Clement: --You freeze it at the time that somebody's talking about--
Justice Sonia Sotomayor: I don't want to be that judge, by the way.
Paul D. Clement: --You freeze it at the time that somebody's talking about changing a custodial situation.
But what is so tragic here is that the lower court applied 1912(d) and (f), which are clearly designed for a situation when you're contemplating transferring custody away from an existing custodial relationship.
They looked at that and applied those inapposite standards to create a transfer to somebody with new custody.
Now, the Solicitor--
Justice Ruth Bader Ginsburg: What about now, when you said the best interest.
Now the child has been some 15 months with the father.
So if a best interest calculus is made now, you would have to take into account uprooting that relationship, would you not?
Paul D. Clement: --Absolutely, Justice Ginsburg.
We're not here to try to say that anybody is entitled to automatic custody of this child based on some legal rule.
Justice Anthony Kennedy: And I -- and I take it you'll say that that goes back to this South Carolina court if you prevail?
Paul D. Clement: Absolutely.
And I would hope with instructions to please make that determination as quickly as humanly possible.
Justice Anthony Kennedy: If the best interest of the child is the uniformly accepted standard in State courts, and if we forget constitutional avoidance problems which I -- I think exist here, is there anything in the statute that allows us to import the best interests of the child into the statutory language, or do we have to just rely on constitutional avoidance and -- and really rewrite the statute?
Paul D. Clement: Well, a couple of things, Justice Kennedy.
If you got to the point of applying 1915(a) and the placement preferences -- and we agree with Petitioners that they're not squarely applicable here, because the birth father's argument was not that I get to adopt, but that I have an entitlement -- if you got to that, I think the good cause standard gives you a vehicle for importing a lot of best interest standards.
I also think you could look--
Justice Ruth Bader Ginsburg: Even though -- even though the guidelines to what's good cause do not include best interest.
Paul D. Clement: --That's right, but even the Justice Department doesn't say that the guidelines are binding or entitled to anything more than Skidmore deference, and I'd take constitutional avoidance over Skidmore deference any day.
But the second thing I would put on the table is I think the fact that 1916(a) tells you that the one time you are thinking about transferring custody, Congress looked to the best interest standard.
That's a good hint that if you are talking about transferring custody you should look to the best interests.
And, again, I think it's imperative to look at 1912(d), (e), and (f).
As the Government and the Solicitor General recognizes, they all contemplate continued custody, (e) and (f) do.
Now, then the Government turns around and says: Well, but (d) was a basis for what the lower court did, which is to transfer custody.
With all due respect to the Government, (d) makes even less sense as a basis for transferring custody than (f).
At least (f) has some standard designed for some transfer of custody.
It happens to be the wrong transfer.
It's the transfer away from continuing custody out and it's beyond a reasonable doubt.
But (d) has no standard to satisfy.
And their position is that because this birth father was not presented with remedial and rehabilitative services, therefore, because he didn't get remedial services that presumably he needed, he gets the child.
And what it shows is that 12(d) assumes that it's like an exhaustion requirement, and unless and until these services are provided you preserve the status quo ante.
But the lower court didn't preserve the status quo ante.
The lower court ordered this poor girl sent to somebody who, at least under state law and just a matter of practicality, is a stranger to her.
And nowhere in the law do you see any child being transferred to a new custodial arrangement without a best interest determination.
And why did it happen here?
It happened here because of ICWA, which by its terms does not apply to these situations, and it happened because of 3/256ths of Cherokee blood.
Now, the Justice Department back in 1978 recognized there were profound constitutional problems with the statute.
Then-Assistant Assistant Attorney General, later Judge, Patricia Wald, told Congress that there were applications of the statute that raised equal protection problems because they treated people differently solely on the basis of race.
One of the things she pointed to is what she point -- described as
"the (b) portion of the definition of “ Indian child ”. "
And that's what makes this child an Indian child here, its biology, its biology combined with the fact that the tribe, based on a racial classification, thinks that somebody with 325 -- 1 percent Indian blood is enough to make them a tribal -- a tribal member, eligible for tribal membership.
And as a result of that, her whole world changes and this whole inquiry changes.
It goes from an inquiry focused on her best interests and it changes to a focus on the birth father and whether or not beyond a reasonable doubt there is a clear and present danger.
Again, that is--
Justice Stephen G. Breyer: So what do we do about that?
Paul D. Clement: --You correct the lower court.
And there's two paths to correct the lower court.
One way to correct the lower court is to say, look -- can I finish the answer?
Chief Justice John G. Roberts: Finish the answer.
Paul D. Clement: You could -- you would either do it by changing the definition of “ parent ” and recognize that, given the consequences that flow from a parent in the statute, it only makes sense to prove something more than bare paternity.
Or you could do it by recognizing that if somebody gets in the front door of this statute based on bare paternity, you have to interpret provisions like (d), (e), and (f) with sensitivity to the fact that under that reading just because you are a parent doesn't mean you have these kind of extraordinary rights.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF RESPONDENTS BIRTH FATHER, ET AL.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:
It is simply false to say that this child's custody was transferred without a best interest determination, as is apparent from any reading of the lower court decisions in this case.
Both of the State courts here looked very closely at the situation here and they found, in their words, that the father here was a
"fit, devoted, and loving father. "
and they said expressly and found expressly as a factual matter that it was in the best interest of this child.
Chief Justice John G. Roberts: Do you think that's correct under the Act?
Where in the Act does it say that you need to consider whether or not the father is a -- would be a good parent?
I thought your reading was that it doesn't matter, all that matters is that he has in his case 3/128ths Cherokee blood.
Charles A. Rothfeld: Well, I -- I think that there is some confusion as to exactly what the State courts did here and what ICWA does.
ICWA does not assign custody.
ICWA -- ICWA addresses the question whether or not the parental rights of -- of a parent of an Indian child can be terminated.
The courts here, both courts, correctly held that under the plain application of ICWA, under Section 1912(d), as discussed by Justices Sotomayor and Scalia, clearly parental rights could not be terminated.
The question then arose: What happens to the child?
And the court then, because there were a natural parent with intact parental rights, applied the usual rule that there is a strong presumption that a fit parent, natural parent, who wants to exercise custody of -- of his or her child should get custody.
That was what happened here.
Justice Anthony Kennedy: And do you -- you want us to write the case as if this is just a standard best interest determination and -- and this federal statute is irrelevant?
I don't understand your argument.
Charles A. Rothfeld: No, no, Your Honor.
I -- I think that the analysis of the South Carolina Supreme Court was exactly right in this -- in -- in those terms.
The court applied ICWA, the Federal statute.
The question was: Could the parental rights of this parent be terminated?
This -- everyone concedes this is an Indian child.
ICWA applies because of that.
The question then is: Can the parental rights be terminated?
Sections 1912(e) and (f) address that question -- (d), (e), and (f).
Justice Antonin Scalia: Do you apply a “ best interest of the child ” standard to a termination of parental rights?
Charles A. Rothfeld: --No, not in the--
Justice Antonin Scalia: I mean, can -- can -- I know a lot of kids that would be better off with different parents.
Charles A. Rothfeld: --And that -- that, too, is exactly right, Justice Scalia.
That is precisely what the ordinary state law standard says, that there is a presumption that the natural parent, if the natural parent is fit, should be awarded custody of the child.
Justice Stephen G. Breyer: Actually, it does -- does (f) apply in your opinion to this case or not?
Charles A. Rothfeld: Yes, it -- in our opinion, both (d) and (f) apply.
Justice Stephen G. Breyer: And (f) has something of the best interest standard tilted towards the Indian parent.
Charles A. Rothfeld: Well, I think--
Justice Stephen G. Breyer: Is that right or not?
I mean, as I read it it's something.
It's tough, but it's there.
Charles A. Rothfeld: --I think that that's right, but I -- but I would add the -- the caveat that it's not a best interest in the sense of we are going to apply this standard to determine custody.
Justice Stephen G. Breyer: So in your view the best interest standard does not apply, but rather (f) applies?
Charles A. Rothfeld: (F) applies--
Justice Stephen G. Breyer: And (f) is a tough version of the best interest standard.
Have I got it right or not?
Charles A. Rothfeld: --Correct, but with this addition: What it applies for is the question whether or not the rights of this parent can be terminated, whether the parental rights of the parent can be terminated.
Justice Elena Kagan: Well, how does (f) apply?
It says “ continued custody ”.
That seems to assume that custody exists.
Charles A. Rothfeld: --That is -- that is the other side's argument.
Our response is that there is a definitional provision in ICWA that says that a child custody proceeding is one that includes a proceeding leading to the termination of parental rights.
Parental rights are defined to be broadly as the parent-child relationship.
And so we think in context (f) means that it's the termination of the parent-child relationship is what has to be considered.
Justice Elena Kagan: So your argument is not that “ continued ” means something different from the normal language; your argument is that “ custody ” means something different from its normal language.
Charles A. Rothfeld: Our argument is that “ custody ” means what Congress said “ child custody proceeding ” means, which is termination of the parent-child relationship.
And so we think that continuation of a relationship -- the question is under (f) would that be harmful for the child?
But I should quickly say that (f) is only one part of the argument here.
As Justices Sotomayor and Scalia began the discussion with Ms. Blatt, (d) also applies.
(D) says nothing at all about custody.
The question under--
Chief Justice John G. Roberts: Could -- could I go back to what you just said about (f)?
You think custody covers someone who has never had custody of the child because it refers to something beyond the accepted definition?
Charles A. Rothfeld: --Well, I -- again, the definition of “ child custody proceeding ” in ICWA includes a proceeding leading to the termination of parental rights.
Chief Justice John G. Roberts: But (f) doesn't say “ child custody proceeding ”.
It says “ continued custody of the child ”.
Charles A. Rothfeld: --That -- that's true, but I think that has to be interpreted within the context of the definitional provision and what Congress had in mind when it referred to child custody proceeding.
But I think -- you know, (f), as I say, is only a portion of the argument here.
And to return to what Justices--
Justice Sonia Sotomayor: Tell me why you are fighting Justice Breyer?
He said: I see -- and your -- Mr. Clement said the same thing -- that “ good cause ” under 1958 is a variant of best interests of the child or factors that are considered.
I see (f) as doing the same thing, allotting however a burden of proof that may or may not be higher than other States.
I mean, in -- in -- some States may have clear and convincing evidence, some States may have preponderance.
Some States -- I don't know if any have beyond a reasonable doubt.
But it's an allocation of burden.
Charles A. Rothfeld: --No.
I -- I think that that's right, and I certainly don't intend to fight Justice Breyer.
I -- I think that--
Justice Stephen G. Breyer: You should if I'm not right.
Charles A. Rothfeld: --I don't--
Justice Ruth Bader Ginsburg: But I think Justice Breyer is quite wrong because a standard that says results in serious emotional or physical damage to the child is far from a best interest standard.
Justice Antonin Scalia: It sure is.
And do you know of any State that -- that applies best interest of the child standard to termination of parental rights as opposed to adoption?
Charles A. Rothfeld: --Absolutely not.
And I -- and I think I -- I will try to agree with both Justice Breyer and Justice Ginsburg and Justice Scalia and say that--
Chief Justice John G. Roberts: But not me, right?
Charles A. Rothfeld: --And Justice Sotomayor.
And always -- always the Chief Justice.
Justice Sonia Sotomayor: You might just have to take--
Charles A. Rothfeld: Which gets me to five, so.
But I think -- I think the crucial point is what -- what we're talking about the determination of parental rights under -- under (f) is whether or not, as Justice Scalia says, the rights of a biological parent can be terminated, which is not sort of the ordinary best interest determination when you're choosing between two people who are strangers to the child.
Chief Justice John G. Roberts: This is not -- (f) is not about terminating parental rights.
It's about what -- I mean, it's about custody, right?
Charles A. Rothfeld: --No, no.
I think (f) is about -- both (d) and (f) are about terminating parental rights.
Parental rights cannot be terminated unless these determinations have been made.
Unless it's been shown that--
Chief Justice John G. Roberts: In what proceeding, the adoption proceeding or custody determination?
Charles A. Rothfeld: --Any proceeding which is aimed at the termination of parental rights.
The adoption proceeding here cannot go forward, all concede, unless parental rights are terminated.
And so if parental rights cannot be terminated under either (d) or (f), this adoption cannot go forward and we are in a different place.
I think that's what -- exactly what the South Carolina Supreme Court said.
It said, we're going to apply -- we're going to look to ICWA to see can we terminate the parental rights of this natural father.
And as Justice Scalia says, that is central.
There is a natural parent here who wants custody.
Can his -- can his claim for custody be denied and can his parental rights be terminated?
To determine that, Congress has put Federal standards in place in ICWA, in (d) and (f), and we have to say both of those have been satisfied here.
Chief Justice John G. Roberts: If -- if you had a tribe, is there at all a threshold before you can call, under the statute, a child an “ Indian child ”?
And what if the tribe -- what if you had a tribe with a zero percent blood requirement; they're open for, you know, people who want to apply, who think culturally they're a Cherokee or -- or any number of fundamentally accepted conversions.
Charles A. Rothfeld: That--
Chief Justice John G. Roberts: I mean, is it -- is -- would that child be considered an Indian child, so a father who had renounced any interest in her until he found out about the adoption would have all these rights?
Charles A. Rothfeld: --Well, that -- that would be a different question.
What we have here is a--
Chief Justice John G. Roberts: No, no.
That's why I asked it.
It's a different question.
Charles A. Rothfeld: --Well -- and the answer would, I think, be as a threshold matter, as this Court has said consistently, it is fundamental -- fundamental basis of tribal sovereignty that -- that a tribe get to determine the--
Justice Ruth Bader Ginsburg: I thought the definition of an Indian child is just straight out of the statute.
An Indian child is someone who is either a member of a tribe or eligible, and is the biological child of a member of an Indian tribe.
Charles A. Rothfeld: --That is correct.
Chief Justice John G. Roberts: So return to what is a hypothetical question and not what the statute provides: Under your argument, a tribe that did not require any blood requirement, but simply enrollment, could be considered an Indian child.
Charles A. Rothfeld: Well, the -- the child would have to be a -- would have to be biological parents--
Chief Justice John G. Roberts: Yes, you have somebody who has no Indian blood, he enrolls in my hypothetical tribe, has a biological child.
That child would be an Indian child and the father would be entitled to the protections you're arguing for.
Charles A. Rothfeld: --Well, that's -- that's true in theory.
But of course, A, that is not our case.
B, if that were to occur and whether or not that would be sort of a legitimate basis for determining membership of a -- in an Indian tribe I think would be--
Justice Stephen G. Breyer: But that is a problem.
Because, look, I mean, as it appears in this case is he had three Cherokee ancestors at the time of George Washington's father.
Now, you say, oh, well, that's a different issue.
But I don't see how to decide that case without thinking about this issue, because if your view is taken and you accept that definition, a woman who is a rape victim who has never seen the father could, would, in fact, be at risk under this statute that the child would be taken and given to the father who has never seen it and probably just got out of prison, all right?
And you don't know that this beyond reasonable doubt standard would satisfy that.
Now, that's obviously something I find disturbing, as a person and also as a judge, because we're trying to interpret the statute to avoid results that would be very far out, at least.
And -- and that's what I want you to tell me.
How do I prevent that kind of risk through an interpretation of the statute?
Charles A. Rothfeld: --Well, let me answer both that question and the Chief Justice's question which I think have similar responses.
As to the rape victim, I am confident that an application of Section 1912(f) would lead to termination of that father's parental rights, and so he would never be in the picture as a possible -- well, the question whether or not custody of someone who has engaged in such conduct could lead to serious physical or emotional damage to the child, I think there will be no difficulty in reaching that conclusion.
But on the question of could a tribe establish some manipulative type of -- of membership criteria, it's significant that that is not this case because--
Justice Antonin Scalia: Aren't there Federal definitions of approvals of tribes?
Not every group of native Americans who get together can call themselves a tribe.
Charles A. Rothfeld: --That -- that is quite right.
Justice Antonin Scalia: And isn't one of the conditions of that a condition of blood and not -- not of voluntary membership?
Charles A. Rothfeld: As I--
Justice Antonin Scalia: I'm quite sure that's right.
So I think the hypothetical is -- is a null set.
I don't think it ever exists.
Charles A. Rothfeld: --I -- I think that--
Chief Justice John G. Roberts: Well--
Charles A. Rothfeld: --that's what I was trying to get to -- I'm sorry, Mr. Chief Justice.
Chief Justice John G. Roberts: --I'm just wondering is 3/256ths close -- close to zero?
I mean, that's -- that's the question in terms to me, that if you have a definition, is it one drop of blood that triggers all these extraordinary rights?
Charles A. Rothfeld: But it has always been the Cherokee membership criterion that if someone who can trace their lineal ancestry to some -- to a person who is on the Dawes Rolls is a member.
No one has ever questioned that that is a legitimate basis for establishing tribal citizenship.
Justice Samuel Alito: But what if a tribe makes eligibility available for anybody who, as a result of a DNA test, can establish any Indian ancestry, no matter how slight?
Charles A. Rothfeld: --I think that that would lead to the question posed by Justice Scalia.
Whether or not that would be a legitimate basis for establishing--
Justice Samuel Alito: No, it's different from his.
He says it's -- it has to be based on blood.
This would be based on blood.
Charles A. Rothfeld: --But I -- I think it leads to his question that there is a Federal element to recognition of an Indian tribe.
And I think whether or not tribal membership criteria so far depart from the traditional understanding of what constitutes a tribe as to be acceptable for those purposes, that would be a question to be resolved by the United States, by the political branches.
Justice Sonia Sotomayor: --Counsel, there are two forms of the EIFD doctrine, the existing Indian family doctrine.
One applies directly to this case; what's the status of an unwed father, and they seem, under that doctrine, to apply the definition that a parent who hasn't been involved in the care during pregnancy is not a father.
But the other side of the doctrine is the one that addresses, I think, the Chief's concern, which is you don't only have Indian blood, but you've been a father who's actually been a member of an Indian tribe, an active member.
We don't have to reach that separate issue here, that EIFD -- that part of the EIFD doctrine.
Charles A. Rothfeld: Well, I guess I'll give you two answers to that.
First, in this case, there has been a finding by the family court that this father has significant ties to the Cherokee Nation.
And so, if one could think that that was part of the test under ICWA, it is certainly satisfied here.
I -- I would go further than that and say that I think the vast majority of State courts have correctly rejected that theory, because--
Justice Sonia Sotomayor: I don't disagree.
Charles A. Rothfeld: --It -- it would be sort of beyond the judicial competence to determine whether or not a particular person is Indian enough to qualify for treatment as a father of an Indian child under -- under ICWA.
Just to nail this down, as to the particular membership criteria of the Cherokee Nation, no one has ever suggested, our opponents here do not suggest that that is, in any sense, illegitimate or not a traditional basis for establishing membership in an Indian tribe.
So if one can imagine wild hypotheticals of the sort that Justice Alito and the Chief Justice have suggested, they are not present here, and those would present political questions to be addressed by Congress or addressed by the executive branch.
In this case, again, the Sate courts found that ICWA should be applied to allow a natural father to raise his child.
Those courts found that s in the best interests of the child to be raised by their natural parent because that parent was a fit, was a loving, was a devoted parent in the words of -- of the lower courts.
Those conclusions were quite clearly correct.
And if I can turn to something which attracted some attention from Justice Scalia and Justice Sotomayor in their exchanges with Ms. Blatt, the application of Section 1912(d) and whether or not the parental rights of this -- this father, who unquestionably satisfies the definition of parent in ICWA, Section 1912(d) says that parental rights cannot be terminated unless remedial efforts have been made, rehabilitative efforts have been made to fix a family that is broken in some respect.
And Ms. Blatt suggests that that does not apply here because there was no Indian family.
I think what Justice Scalia said was absolutely right.
There unquestionably was a family here in the ordinary sense.
There was a mother, there was a father, there was their little girl, there were grandparents who very much wanted to be involved in the life of this child, who knit socks for her.
There's no question--
Justice Antonin Scalia: Is my recollection correct that -- that he had offered to -- to marry the mother, and she rejected that?
Charles A. Rothfeld: --That -- that is quite correct.
I think that the genesis of this case, they -- they were an engaged couple and the mother broke the engagement.
The father wanted, very much wanted to marry the mother, wanted to--
Justice Ruth Bader Ginsburg: I thought that there's some ambiguity there, because one reason why he wanted to marry was that he would get more pay and allowances.
Charles A. Rothfeld: --Well, there -- there are disputed facts as to what was going on, and so I don't want to hinge a lot on this.
But I think it is quite clear the father -- they were engaged, the father wanted to marry the mother.
The father's testimony -- and the family court found, so we're not talking about simply, you know, assertions here.
The family court found that the father was excited by the pregnancy, was looking forward to the birth of the child, that he wanted to marry the mother so that she would qualify for military health benefits.
The father at the time--
Chief Justice John G. Roberts: He was excited, but there is no doubt he paid nothing during the pregnancy and nothing at the time of the birth, right, to support the child or the mother?
Charles A. Rothfeld: --That -- that is true.
But I -- I am--
Chief Justice John G. Roberts: So he was excited by it; he just didn't want to take any responsibility.
Justice Antonin Scalia: Well, that -- that was after she had rejected his offer to marry her, no?
Charles A. Rothfeld: --Yes.
Justice Anthony Kennedy: Well, these -- these considerations are why domestic relations pose the hardest problems for judges.
Our domestic relations judges all by themselves every day have these difficult problems.
If we could appoint King Solomon, who was the first domestic relations judge, as special master, we could do it.
But we can't do it.
Charles A. Rothfeld: --That -- that -- that--
But what we have -- what we have here is a question of a Federal statute which, as I must understand it, displaces the ordinary best interest determinations of the State courts.
Would you agree with that?
I -- I would agree that Congress indicated that part of the best interest inquiry for an Indian child concerns -- takes account of their status as an Indian child, and Congress made a factual determination -- the fact that--
Justice Antonin Scalia: I don't know why you make that concession.
I mean, your client has been deprived of parental rights.
I do not know that -- that it is traditional to decide whether a parent will be deprived of parental rights by assessing what is in the best interest of the child.
That seems to me quite--
Charles A. Rothfeld: --That is quite--
Justice Antonin Scalia: --extraordinary, not normal.
Justice Anthony Kennedy: But is -- is that true under South Carolina law?
Charles A. Rothfeld: --Yes, that is.
I -- with respect to that--
Justice Anthony Kennedy: Under South Carolina law in this adoption proceeding, the -- if it had not been for the statute, the best interest of the child standard would not have applied?
Charles A. Rothfeld: --I think there are three things that are going on here.
Had ICWA not applied here at all, then the father would have had no right to object to the adoption, so the adoption would have gone forward had it not been for ICWA.
However, as Justice Scalia says correctly, when a natural parent is involved, and the natural parent has rights that have not yet been terminated, as this parent's have not, then ordinarily a best interest inquiry--
Justice Ruth Bader Ginsburg: He would be out under South Carolina law because he didn't support the child during the pregnancy.
Charles A. Rothfeld: --I -- I have to disagree with that, Justice Ginsburg.
The family court judge found that his parental rights could not be terminated as a matter of South Carolina law, as well as a matter of ICWA law.
And so we think it is quite clear that this father's right would not be terminated.
As Justice Scalia says, in the ordinary course, while we're not engaged in a free-floating best interest inquiry, one would say whether or not a -- a profound showing of parental neglect or insufficiency has been made to terminate those rights.
If it cannot, then that father should get custody.
In response to what Justice Kennedy asked about--
Justice Ruth Bader Ginsburg: Termination of parental rights requires a showing that it's an unfit parent, which is quite--
Charles A. Rothfeld: --That -- that is absolutely right, and no such showing has been made or could be made in this case.
And if I may just finish--
Chief Justice John G. Roberts: You have an extra -- you have an extra minute.
Charles A. Rothfeld: --The -- both of the State courts in this case carefully looked at the -- at the situation here and found that this father, far from being an unfit father, was a fit, loving, devoted father who had created a safe, satisfactory and -- and loving environment for the child.
Under ordinary South Carolina standards, once one gets past ICWA, parental rights cannot be terminated in a situation of this sort, the parental rights, as Justice Scalia says, of a natural parent, who had--
Justice Samuel Alito: Well, if this case would have come out the same way under purely South Carolina law, then why are we here?
Charles A. Rothfeld: --The -- the only reason that ICWA comes into play is because South Carolina law did not give this father a right to object to the adoption.
Chief Justice John G. Roberts: Thank you, counsel.
Charles A. Rothfeld: Thank you very much, Your Honor.
Chief Justice John G. Roberts: Mr. Kneedler?
ORAL ARGUMENT OF EDWIN S. KNEEDLER, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING RESPONDENTS BIRTH FATHER, ET AL.
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court:
I would like to start with the definition of “ parent ” under the Act because I think a lot flows from that.
The Act provides that a parent -- a parent of an Indian child is the -- is the biological parent, except where the child -- or where the parent -- paternity has not been established or acknowledged.
Here, the -- the father's paternity was acknowledged and established, both courts below found.
As a consequence, he has not simply a biological relationship to the child; he has a legal relationship to the child, created under Federal law.
Justice Anthony Kennedy: But -- but -- did you -- at your -- when you began, do you use “ paternity ” in the biological sense?
Edwin S. Kneedler: --“ Paternity ” itself is in a biological sense, but when--
Justice Anthony Kennedy: As -- as you -- as you interpret the statute, “ paternity is the biological sense ”, not -- not an--
Edwin S. Kneedler: --Yes.
Justice Anthony Kennedy: --not an existing parental relationship.
Edwin S. Kneedler: No, a biological sense.
But the establishment of--
Justice Antonin Scalia: It says that, doesn't it?
A parent is -- is the -- the biological parent.
Edwin S. Kneedler: --Yes.
Justice Antonin Scalia: That's what it says.
Edwin S. Kneedler: Yes.
But what I'm saying is, once -- in the unwed father situation, once the father establishes or acknowledges paternity, the father has a legal relationship, not just the--
Justice Samuel Alito: Well, family law is traditionally a State province, but your argument is that Federal law can take a traditional family law term like “ parent ” and perhaps others and give it a meaning that is very different from its traditional meaning or its meaning under State law?
Edwin S. Kneedler: --Well, several things about that.
Justice Samuel Alito: Strike the
"traditional meaning: But its meaning under State law. "
Edwin S. Kneedler: Well, several things about that.
First, there are States -- the Casey amicus brief in footnote 7 identifies a number of States which recognize parental rights for a parent who has established or acknowledged citizenship.
So the State law varies on that.
And this was the -- one of the very problems Congress was concerned about with respect to Indian children, because--
Justice Antonin Scalia: Wait.
I didn't understand.
Citizenship, who has acknowledged citizenship?
Edwin S. Kneedler: --I'm sorry.
I meant to say paternity.
Justice Antonin Scalia: Okay.
I understand now.
Edwin S. Kneedler: What you have here are people who are citizens of two separate sovereigns.
An Indian tribe is a sovereign and a State.
Congress tried to accommodate those competing interests by leaving the cases in State court, letting them be subject to State law, but subject to minimum standards to protect the people who are citizens -- or eligible for citizenship in the Indian tribe.
That is a classic implementation of Congress's plenary responsibility in the Federal trust and guardianship for Indians, and nothing could be more at the core of tribal self-determination and tribal survival than the determination of tribal membership and the care about what happens to Indian children.
Justice Elena Kagan: Mr. Kneedler, let's say you're right that this man is a parent under the terms of the Act, so not just a biological father but also he has a legal status as parent under this Act.
And then 1912 says, well, this is how you go about terminating parental rights, right?
But then your argument suggests that one of these clauses applies to him and the other one doesn't, even though he's a parent.
But you're saying he only gets some of the protections, that there are really two classes of parents, custodial parents and non.
So where does that come from?
Edwin S. Kneedler: I think it's not two classes of parents.
It comes from the text of (f) itself, which talks about continued custody, which we think means that (f) applies -- it presupposes that there is custody to continue.
And that's just a condition on the termination of parental rights.
Justice Antonin Scalia: That's a very strange way to put it.
I mean, just -- just in passing in the sentence, that “ the continued custody ”.
I mean, you would think if that's what they meant, they would say, “ where the child ” is --
"is within the custody of a parent, comma, no termination of parental rights may be ordered, in the absence of a determination. "
blah, blah, blah, blah, blah.
It doesn't say that.
"No termination may be ordered in absence of a determination, including testimony of a qualified expert, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional. "
When it's -- when it's framed that way, I am -- I am inclined to believe that the “ continued custody ” means looks to the future, the continuing custody by this person in the future.
To read into it the fact that -- that the whole provision only applies to someone who is then in custody of the child, that's very strange.
That's -- that's not the way somebody would write a provision like that.
Edwin S. Kneedler: I -- I grant you it is somewhat awkwardly written, but we think the sense of it is -- is that, because this is -- as this court noted in the Santosky decision, this is a very unusual statutory provision with respect to the burden of proof.
And there is some logic for Congress applying this -- this -- where there is a custodial--
Justice Stephen G. Breyer: But doesn't it happen, in your interpretation, unlike the two parties who have an interpretation I can understand, that -- remember my hypothetical, which I deliberately made dramatic.
We can think of a whole range of things short of that where the father has seen the mother never, perhaps, or sperm donors for very short periods of time, and under your interpretation where there is an ongoing relationship, even a short one, at least they can't give the child to the father where it would be very harmful to the -- to the child.
But under your interpretation, the one category of people who is exempt from that are the category of fathers who've never seen the mother.
Who've seen the mother a very short time.
Who may be in -- they're not even subject to looking to see if it's very harmful to the child.
So I just -- am I right about your interpretation having that effect?
And if it does have that effect, what's the justification for it?
Edwin S. Kneedler: --Well, the -- there's several -- several things about that with respect to the rapist and the sperm donor.
In the 35-year history of this statute--
Justice Stephen G. Breyer: All right.
So you can say, oh, there's no such thing as a parent, a father who only sees the mother--
Edwin S. Kneedler: --No, no, no.
Justice Stephen G. Breyer: --All right.
Now, let's suppose there is such a thing.
As long as there is such a thing, the anomaly that I mention seems to me to exist.
And am I wrong or right about that?
And if it exists, what's the basis for your creating an interpretation of the statute that would produce it?
Edwin S. Kneedler: It's -- it's not as anomalous as you're suggesting because state law standards still apply, and under state law standard under Santosky, there has to be clear and convincing evidence to terminate -- to apply the State termination of parental rights provisions, which is what the family court did in this case.
This is -- this is a Federal overlay, an additional requirement.
If I could, though, move on to--
Justice Elena Kagan: But as a Federal overlay, Mr. Kneedler, I mean, does it make sense to sort of split apart (d) and (f) in this way?
Because (d) is the curing provision that says you have to take steps to try to cure this parent and, you know, to try to make him or her a better parent.
And then (f) says here's the standard for terminating parental rights if those curative efforts have failed.
So to -- to use -- to have the curative provision but not the standard just seems to -- to make a -- a mess of the statute.
Edwin S. Kneedler: --Well, with respect, I don't think so, because custody is in the one and -- and not in the other.
(D) speaks of breakup of -- of the family relationship.
And I think there, the family relationship, because it -- it speaks of termination of parental rights, which is in turn defined in the Act as anything that terminates the parent-child relationship, which -- which can be much broader than -- than whether the parent actually has custody, which is the word that--
Justice Ruth Bader Ginsburg: But the whole thrust of it, you -- this is directed to providing remedial services, which it -- it seems that it fits a situation where someone has custody but is having problems getting his or her act together so needs the help of a social worker, but it makes no sense to talk about remedial services for someone who has never had custody.
Charles A. Rothfeld: Not -- with -- with respect, Justice Ginsburg, I don't agree.
Remedial services here would entail -- the remedial services have to be tied to whatever the problem is.
And here the problem was the father had not shown sufficient interest in the child.
Remedial services would have been efforts to interest the father in the child.
Here that wasn't necessary because as soon as the father found out about the adoption proceeding, he acknowledged and established his paternity and said, I want that child.
Chief Justice John G. Roberts: But he didn't want anything to do with the child if the mother had kept the child in her care.
It was only when she wanted to put it up for adoption that he had developed this interest in the child.
Edwin S. Kneedler: --And that's -- that is precisely the point when ICWA kicks in.
ICWA does not try to regulate the relationship between the mother and the father.
That is -- that is left to State law or tribal law.
ICWA kicks in only when there's going to be an adoption or a termination of rights and the child is going to be placed outside of -- of the relationship.
Chief Justice John G. Roberts: But what's -- is -- is -- are the would-be adoptive parents required to provide remedial services and rehabilitative programs under (d)?
Edwin S. Kneedler: No, their burden is to demonstrate that that has happened.
Chief Justice John G. Roberts: So that it's a tribe -- if the tribe wants to defeat the adoption, all they have to do is do nothing with respect to the father's--
Edwin S. Kneedler: --Well, I -- I think the -- the family court could direct that remedial service -- this -- this happens, I think, frequently in family court, is the remedial services -- this is not an unusual provision.
Much State family law provides for this.
The State court can oversee the -- the remedial services and that could have been done in this -- in this case.
Chief Justice John G. Roberts: --Thank you, Mr. Kneedler.
Ms. Blatt, you have three minutes remaining.
REBUTTAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONERS
Lisa S. Blatt: Thank you, Mr. Chief Justice, and may it please the Court:
If you affirm below, you're basically banning the interracial adoption of abandoned Indian children.
There's not a single adoptive parent in their right mind who is going to do what the court below said, which is go through these Kafkaesque hoops of making sure an absentee father's desire to be a parent has been stimulated.
This is private adoption.
This is absurd that an adoptive parent would beg the family court to go provide parenting classes.
And I wanted to--
Justice Sonia Sotomayor: Counsel, this Act, in terms of voluntary surrender of Indian children by parents, says that it's not final for an adoptive parent until the court does the adoption decree.
It gives the mother the right -- or father -- to rescind the voluntary adoption till the very last minute.
Has that stopped voluntary adoptions?
Lisa S. Blatt: --No, but this -- first of all -- I mean, I love that about this case, the irony here.
He had no -- we didn't need his consent under State law, so the application of 1913, which allowed this withdrawal of consent, mandates the return of the child.
Well, there was no way to return this child to anybody other than the mother.
And I want you to keep in mind about this case, is your decision is going to apply to the next case and to a apartment in New York City where a tribal member impregnates someone who's African-American or Jewish or Asian Indian, and in that view, even though the father is a completely absentee father, you are rendering these women second-class citizens with inferior rights to direct their reproductive rights and their -- who raises their child.
You are relegating adopted parents to go to the back of the bus and wait in line if they can adopt.
And you're basically relegating the child, the child to a piece of property with a sign that says,
"Indian, keep off. "
"Do not disturb. "
This case is going to affect any interracial adoption of children.
Justice Antonin Scalia: That was its intent.
Lisa S. Blatt: No.
Justice Antonin Scalia: You don't think that that's what its intent was?
Lisa S. Blatt: No.
Justice Antonin Scalia: It only applies to children of -- to tribal children.
And -- and the purpose was to establish much more difficult standards for the adoption of -- of a child--
Lisa S. Blatt: No, no, Justice Scalia.
Justice Antonin Scalia: --Now, maybe you -- you disagree with that policy, but that's clearly a policy behind the law.
Lisa S. Blatt: No, I think the policy is fantastic.
It was talking about Indian families who were being ripped away because of cultural biases and insensitivity.
This case didn't involve cultural biases.
Justice Antonin Scalia: It didn't say that.
It -- its definition of--
Lisa S. Blatt: There's 30,000 pages of legislative history that's talking about the removal.
Justice Ruth Bader Ginsburg: That might is what provoked the Act that Indian children were being removed from their families, but the Act is written in much broader terms.
Lisa S. Blatt: I agree.
1915 is extraordinary, if you read it the way the tribe does, which is -- and the Government does.
And a little bit about the membership criteria.
The tribe's view is any child born Indian is automatically a member.
So even if the parents withdrew their tribal membership, this child would be covered.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Samuel Alito: The second case is Adoptive Couple versus Baby Girl, No. 12-399.
This case involves the custody of a young girl who through her biological father has some Native-American Ancestry.
Specifically, we are told she is 3/256 Cherokee and as a result falls within the Federal Indian Child Welfare Act of 1978.
Before the child was born, her biological father refused to provide any support for her mother even though he was able to do so and he sent the mother a text message giving up his parental rights.
The mother arranged for the baby to be adopted and the biological father initially signed papers stating that he did not object to the adoption.
However, he later changed his position and sought custody.
The South Carolina Supreme Court held that certain provisions of the Indian Child Welfare Act required the child at the age of 27 months to be taken from the only parents she had ever known and handed over to the biological father.
We hold that the Federal Act does not support this result.
A provision of the Indian Child Welfare Act 25 U.S.C. Section 1912(f) 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 parents “continued custody of the child, the key phrase there is continued custody.”
We hold that this provision does not apply when, as in this case, the relevant parent never had custody of the child, continued custody cannot be terminated if there never was any custody in the first place.
Another provision of the same statute, Section1912 (d), conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “Breakup of the Indian family.”
We hold that this provision is inapplicable when, as in this case, the parent abandoned the Indian child before birth and never had custody of the child.
In that situation no Indian family is broken up.
Finally, we clarify that Section 1915(a) which provides placement preferences for the adoption of Indian children does not bar a non Indian family like adoptive couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.
We, therefore, reverse the judgment of the South Carolina Supreme Court and remand for further proceedings.
Justice Thomas and Justice Breyer have filed concurring opinions.
Justice Scalia has filed a dissenting opinion.
Justice Sotomayor has also filed a dissenting opinion in which Justices Ginsburg and Kagan have joined and in which Justice Scalia has joined and in part.