Adoptive Couple v. Baby Girl

Syllabus

 

SUPREME COURT OF THE UNITED STATES

 

ADOPTIVE COUPLE

 v.

BABY GIRL,

A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

 

No. 12?399.

Argued April 16, 2013?

-Decided June 25, 2013

 

The Indian Child Welfare Act of 1978 (ICWA), which establishes feder­al standards for state-court child custody proceedings involving Indi­an children, was enacted to address ?the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usual­ly in non-Indian homes,? Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involun­tary termination of a parent?s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result fromthe parent?s ?continued custody? of the child, 25 U. S. C. §1912(f);conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the ?breakup of the Indian family,? §1912(d); and provides placement preferences for the adoption of Indian children to members of the child?s extended family, other members of the Indian child?s tribe, and other Indian families, §1915(a).

While Birth Mother was pregnant with Biological Father?s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoption agency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl?s birth, Biological Father provided no finan­cial assistance to Birth Mother or Baby Girl. About four months after Baby Girl?s birth, Adoptive Couple served Biological Father with no­tice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adop­tion. Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple?s adoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, con­cluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a ?parent? un­der the ICWA; that §§1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)?sadoption-placement preferences would have applied.

Held:

1. Assuming for the sake of argument that Biological Father is a?parent? under the ICWA, neither §1912(f) nor §1912(d) bars thetermination of his parental rights. Pp. 6?14.

(a) Section 1912(f) conditions the involuntary termination of pa­rental rights on a heightened showing regarding the merits of the parent?s ?continued custody of the child.? The adjective ?continued? plainly refers to a pre-existing state under ordinary dictionary defini­tions. The phrase ?continued custody? thus refers to custody that aparent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutorytext, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA?s primary goal is not implicat­ed when an Indian child?s adoption is voluntarily and lawfully initi­ated by a non-Indian parent with sole custodial rights. Nonbindingguidelines issued by the Bureau of Indian Affairs (BIA) demonstratethat the BIA envisioned that §1912(f)?s standard would apply only totermination of a custodial parent?s rights. Under this reading, Bio­logical Father should not have been able to invoke §1912(f) in this case because he had never had legal or physical custody of Baby Girlas of the time of the adoption proceedings. Pp. 7?11.

(b) Section §1912(d) conditions an involuntary termination of pa­rental rights with respect to an Indian child on a showing ?that activeefforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.? Consistent with this text, §1912(d) applies on­ly when an Indian family?s ?breakup? would be precipitated by termi­nating parental rights. The term ?breakup? refers in this context to?[t]he discontinuance of a relationship,? American Heritage Diction­ary 235 (3d ed. 1992), or ?an ending as an effective entity,? Webster?s Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child hasnever been in the Indian parent?s legal or physical custody, there is no ?relationship? to be ?discontinu[ed]? and no ?effective entity? to be?end[ed]? by terminating the Indian parent?s rights. In such a situa­tion, the ?breakup of the Indian family? has long since occurred, and§1912(d) is inapplicable. This interpretation is consistent with theexplicit congressional purpose of setting certain ?standards for theremoval of Indian children from their families,? §1902, and with BIAGuidelines. Section 1912(d)?s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child?s ?continued custody? with his parent, strongly suggests thatthe phrase ?breakup of the Indian family? should be read in harmony with the ?continued custody? requirement. Pp. 11?14.

2. Section 1915(a)?s adoption-placement preferences are inapplica­ble in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt BabyGirl in the Family Court or the South Carolina Supreme Court. Bio­logical Father is not covered by §1915(a) because he did not seek toadopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. And custody was never sought by Baby Girl?s paternal grandparents, other members of the Chero­kee Nation, or other Indian families. Pp. 14?16.

398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREY-ER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA-GAN, JJ., joined, and in which SCALIA, J., joined in part.

 

 

Opinion of the Court

 

 

SUPREME COURT OF THE UNITED STATES

 

No. 12?399

 

ADOPTIVE COUPLE,

PETITIONERS

 v.

BABY GIRL,

A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

[June 25, 2013]

 

JUSTICE ALITO delivered the opinion of the Court.

This case is about a little girl (Baby Girl) who is classi­fied as an Indian because she is 1.2% (3/256) Cherokee.Because Baby Girl is classified in this way, the SouthCarolina Supreme Court held that certain provisions ofthe federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parentsshe had ever known and handed over to her biologicalfather, who had attempted to relinquish his 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 holdthat 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 thatremedial efforts have been made to prevent the ?breakupof the Indian family?---is inapplicable when, as here, theparent abandoned the Indian child before birth and 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 likeAdoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.We accordingly reverse the South Carolina Supreme Court?s judgment and remand for further proceedings.

 

I

 

?The Indian Child Welfare Act of 1978 (ICWA), 92 Stat.3069, 25 U. S. C. §§1901?1963, was the product of rising concern in the mid-1970?s over the consequences to In- dian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation oflarge numbers of Indian children from their families and tribes through adoption or foster care placement, usuallyin 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 toenact the ICWA, which establishes federal standards that govern state-court child custody proceedings involvingIndian 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 tothis 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 Indianfamily and that these efforts have proved unsuccessful.? §1912(d). Second, a state court may not involuntarilyterminate parental rights to an Indian child ?in the ab­sence of a determination, supported by evidence beyond 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 Indianchild 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) othermembers 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 contactedthe Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter mis­spelled Biological Father?s first name and incorrectlystated 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, BirthMother selected Adoptive Couple, non-Indians living inSouth Carolina, to adopt Baby Girl. Adoptive Couplesupported 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. In-deed, Biological Father ?made no meaningful attempts to assume his responsibility of parenthood? during thisperiod. App. to Pet. for Cert. 122a (Sealed; internal quota­tion marks omitted).

Approximately four months after Baby Girl?s birth,Adoptive Couple served Biological Father with notice ofthe pending adoption. (This was the first notificationthat they had provided to Biological Father regarding the adoption proceeding.) Biological Father signed papersstating that he accepted service and that he was ?not contesting the adoption.? App. 37. But Biological Fatherlater testified that, at the time he signed the papers, hethought 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 theadoption 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 inSeptember 2011, by which time Baby Girl was two yearsold. 398 S. C. 625, 634?635, 731 S. E. 2d 550, 555?556 (2012). The Family Court concluded that Adoptive 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 adoptionand 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 ICWAapplied because the case involved a child custody proceed­ing relating to an Indian child. Id., at 637, 643, n. 18, 731 S. E. 2d, at 556, 560, n. 18. It also concluded that Biologi­cal Father fell within the ICWA?s definition of a ??parent.?? Id., at 644, 731 S. E. 2d, at 560. The court then held 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 ?activeefforts ha[d] been made to provide remedial services andrehabilitative 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 orphysical harm to her beyond a reasonable doubt.? Id., at 648?649, 731 S. E. 2d, at 562?563 (citing §1912(f )). Finally,the court stated that, even if it had decided to terminate Biological Father?s parental rights, §1915(a)?s adoption- placement preferences would have applied. Id., at 655?657, 731 S. E. 2d, at 566?567. We granted certiorari. 568 U. S. ___ (2013).

 

III

 

It is undisputed that, had Baby Girl not been 3/256Cherokee, 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 con- sent to the adoption would not have been required?). The South Carolina Supreme Court held, however, that Biolog­ical Father is a ?parent? under the ICWA and that two statutory provisions---namely, §1912(f ) and §1912(d)---bar the termination of his parental rights. In this Court, Adoptive Couple contends that Biological Father is not a ?parent? and that §1912(f ) and §1912(d) are inapplicable. We need not---and therefore do not---decide whether Bio­logical Father is a ?parent.? See §1903(9) (defining ?par­ent?).⁴ Rather, assuming for the sake of argument that he is a ?parent,? we hold that neither §1912(f ) nor §1912(d) bars the termination of his parental rights.

 

A

 

Section 1912(f ) addresses the involuntary terminationof 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 bythe parent or Indian custodian is likely to result in serious emotional or physical damage to the child.? (Emphasisadded.) 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 terminationof parental rights on a showing regarding the merits of ?continued custody of the child by the parent.? (Emphasisadded.) The adjective ?continued? plainly refers to a pre­existing state. As JUSTICE SOTOMAYOR concedes, post, 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 witha particular action or in a particular condition; persist. . . . 3. To remain in the same state, capacity, or place?); Web­ster?s Third New International Dictionary 493 (1961) (Webster?s) (defining ?continued? as ?stretching out in timeor space esp. without interruption?); Aguilar v. FDIC, 63 F. 3d 1059, 1062 (CA11 1995) (per curiam) (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 thepast). As a result, §1912(f ) does not apply in cases wherethe 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 continuedcustody of the child by the parent,? Biological Fathercontends that if a determination relating to ?continuedcustody? is inapposite in cases where there is no ?custody,? the statutory text prohibits termination. See Brief for Respondent Birth Father 39. But it would be absurd to think that Congress enacted a provision that permitstermination 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 theICWA 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 tostem 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 Indianchildren and to promote the stability and security of Indiantribes and families by establishing minimum Federalstandards 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 Indianfamilies); id., at 22 (discussing ?the removal? of Indianchildren from their parents pursuant to §§1912(e) and (f )). In sum, when, as here, the adoption of an Indian child isvoluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA?s primary goal ofpreventing the unwarranted removal of Indian childrenand the dissolution of Indian families is not implicated.

The dissent fails to dispute that nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) shortly afterthe ICWA?s enactment demonstrate that the BIA envi­sioned that §1912(f )?s standard would apply only to termi­nation of a custodial parent?s rights. Specifically, the 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 mustbe 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 isrequired is the question of whether or not serious damageto the child is likely to occur if the child is not removed?).

Under our reading of §1912(f ), Biological Father should not have been able to invoke §1912(f ) in this case, because he had never had legal or physical custody of Baby Girl asof 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 competentjurisdiction?).⁷

In sum, the South Carolina Supreme Court erred infinding that §1912(f ) barred termination of BiologicalFather?s parental rights.

 

B

 

Section 1912(d) provides that ?[a]ny party? seeking to terminate parental rights to an Indian child under statelaw ?shall satisfy the court that active efforts have beenmade 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 contextto ?[t]he discontinuance of a relationship,? American Her­itage Dictionary 235 (3d ed. 1992), or ?an ending as aneffective entity,? Webster?s 273 (defining ?breakup? as ?adisruption or dissolution into component parts: an endingas an effective entity?). See also Compact OED 1076 (defining ?break-up? as, inter alia, a ?disruption, separa­tion into parts, disintegration?). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent?s legal or physical custody, there is no ?relationship? that would be ?discontinu[ed]?---and no ?effective entity? that would be ?end[ed]?---by the termination of the Indian par- ent?s rights. In such a situation, the ?breakup of the Indian family? has long since occurred, and §1912(d) is inapplicable.

Our interpretation of §1912(d) is, like our interpretationof §1912(f ), consistent with the explicit congressionalpurpose of providing certain ?standards for the removal of Indian children from their families.? §1902 (emphasisadded); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32? 34. In addition, the BIA?s Guidelines confirm that reme­dial services under §1912(d) are intended ?to alleviate the need to remove the Indian child from his or her parents orIndian 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 theprovision?s placement next to §1912(e) and §1912(f ), bothof which condition the outcome of proceedings on themerits of an Indian child?s ?continued custody? with 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-careplacement 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 quickto 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 tobirth 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 bea 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 dissuadesome of them from seeking to adopt Indian children.⁹ And this would, in turn, unnecessarily place vulnerable Indianchildren at a unique disadvantage in finding a permanentand loving home, even in cases where neither an Indianparent nor the relevant tribe objects to the adoption.¹⁰

In sum, the South Carolina Supreme Court erred infinding that §1912(d) barred termination of 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 adoptiveplacement of an Indian child would have been applicable.398 S. C., at 655?657, 731 S. E. 2d, at 566?567. In so doing, however, the court failed to recognize a critical lim- itation on the scope of §1915(a).

Section 1915(a) provides that ?[i]n any adoptive place­ment of an Indian child under State law, a preferenceshall 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 CarolinaSupreme 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 thatsought to adopt Baby Girl in the Family Court or theSouth 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 beterminated 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 Actwould put certain vulnerable children at a great disad­vantage solely because an ancestor---even a remote one---was an Indian. As the State Supreme Court read §§1912(d) and (f ), a biological Indian father could abandonhis child in utero and refuse any support for the birth mother---perhaps contributing to the mother?s decision to put the child up for adoption---and then could play hisICWA 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 provisionapplies 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 notinconsistent 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 thatinvolve ?termination of parental rights? and ?adoptive placement,?§1903(1).

 

²  Around the same time, the Cherokee Nation identified BiologicalFather as a registered member and concluded that Baby Girl was an?Indian child? as defined in the ICWA. The Cherokee Nation inter­vened in the litigation approximately three months later.

 

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 toBirth 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 neednot decide whether Biological Father is a ?parent.?

 

⁵  With a torrent of words, the dissent attempts to obscure the factthat its interpretation simply cannot be squared with the statutory text. A biological father?s ?continued custody? of a child cannot beassessed if the father never had custody at all, and the use of a differ­ent phrase---?termination of parental rights?---cannot change that. In addition, the dissent?s reliance on subsection headings, post, at 9, overlooks the fact that those headings were not actually enacted byCongress. See 92 Stat. 3071?3072.

 

⁶ The dissent criticizes us for allegedly concluding that a biologicalfather qualifies for ?substantive? statutory protections ?only when [he] has physical or state-recognized legal custody.? Post, at 2, 6?7. But the dissent undercuts its own point when it states that ?numerous? ICWAprovisions 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 BiologicalFather?s rights with respect to Baby Girl, the dissent asserts that aminority of States afford (or used to afford) protection to similarlysituated biological fathers. See post, at 17?18, and n. 12 (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 biologicalfathers. The fact that state laws may provide certain protections tobiological fathers who have abandoned their children and who havenever had custody of their children in no way undermines our 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 ifthose 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 legalcustody, 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 isthe 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 immediatelyafter conception. Post, at 14, n. 8.

 

⁹  Biological Father and the Solicitor General argue that a tribe or state agency could provide the requisite remedial services under §1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don?t? And if they don?t, would the adoptive parents have to undertake the task?

 

¹⁰  The dissent repeatedly mischaracterizes our opinion. As our de­tailed discussion of the terms of the ICWA makes clear, our decision is not based on a ?[p]olicy disagreement with Congress? judgment.? Post, at 2; see also post, at 8, 21.

 

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 issue here, it may be the case that an Indian child?s tribe could alter §1915?spreferences in a way that includes a biological father whose rights 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 todetermine 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 theCherokee Nation certifies families to be adoptive parents and thatthere are approximately 100 such families ?that are ready to takechildren that want to be adopted.? Record 446. However, this testi­mony was only a general statement regarding the Cherokee Nation?s practices; it did not demonstrate that a specific Indian family waswilling to adopt Baby Girl, let alone that such a family formally soughtsuch adoption in the South Carolina courts. See Reply Brief for Peti­tioners 13?14; see also Brief for Respondent Cherokee Nation 21?22.

 

 

 

 

THOMAS, J., concurring

 

 

SUPREME COURT OF THE UNITED STATES

 

No. 12?399

 

ADOPTIVE COUPLE,

PETITIONERS

 v.

BABY GIRL,

 A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

[June 25, 2013]

 

JUSTICE THOMAS, concurring.

I join the Court?s opinion in full but write separately to explain why constitutional avoidance compels this out­come. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raisesignificant 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 adoptionproceeding. Adoption proceedings are adjudicated in statefamily courts across the country every day, and ?domestic relations? is ?an area that has long been regarded as avirtually exclusive province of the States.? Sosna v. Iowa, 419 U. S. 393, 404 (1975). Indeed, ?[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the lawsof the United States.? In re Burrus, 136 U. S. 586, 593? 594 (1890). Nevertheless, when Adoptive Couple filed 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 governstate-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 eligiblefor 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 terminatethe 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 astate court from terminating parental rights until thecourt 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 theadoption of Indian children, which favor placement withIndians over other adoptive families. §1915(a). Operatingtogether, these requirements often lead to different out­comes than would result under state law. That is precisely 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 adoptionunder South Carolina law?).

The ICWA recognizes States? inherent ?jurisdiction overIndian child custody proceedings,? §1901(5), but assertsthat 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 concernonly if the Constitution grants it such power. Admt. 10 (?The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re­served to the States respectively, or to the people?). The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved.

 

II

 

The ICWA asserts that the Indian Commerce Clause, Art. I, §8, cl. 3, and ?other constitutional authority? pro­vides Congress with ?plenary power over Indian affairs.? §1901(1). The reference to ?other constitutional authority? is not illuminating, and I am aware of no other enumer­ated power that could even arguably support Congress? intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121, 137 (2006) (?As a matter of federal constitutional law, the Indian Commerce Clause grantsCongress 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 supportingcongressional power over Indians). The assertion of ple­nary authority must, therefore, stand or fall on Congress? power under the Indian Commerce Clause. Although thisCourt has said that the ?central function of the Indian Commerce Clause is to provide Congress with plenarypower 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 originalConstitution 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-Federalistsdiscussed the Commerce Clause during the ratificationperiod, they often used trade (in its selling/barteringsense) 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 asadoption of children.

Furthermore, the term ?commerce with Indian tribes? was invariably used during the time of the founding tomean ??trade with Indians.?? See, e.g., Natelson, 215?216, and n. 97 (citing 18th-century sources); Report of Commit­tee on Indian Affairs (Feb 20, 1787), in 32 Journals of theContinental Congress 1774?1789, pp. 66, 68 (R. Hill ed.1936) (hereinafter J. Cont?l Cong.) (using the phrase ?commerce with the Indians? to mean trade with the  Indians). And regulation of Indian commerce generallyreferred to legal structures governing ?the conduct ofthe merchants engaged in the Indian trade, the nature of thegoods they sold, the prices charged, and similar matters.?Natelson 216, and n. 99.

The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is giventhe power to regulate Commerce ?with the Indian tribes.? The Clause does not give Congress the power to regulatecommerce with all Indian persons any more than theForeign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading ofthe text, thus, confirms that Congress may only regulatecommercial interactions---?commerce?---taking place withestablished Indian communities---?tribes.? That power is far from ?plenary.?

 

B

 

Congress? assertion of ?plenary power? over Indianaffairs is also inconsistent with the history of the IndianCommerce Clause. At the time of the founding, the 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 werenecessary 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 Indianretaliation. See Prucha 20. To mitigate these conflicts,most Colonies extensively regulated traders engaged incommerce with Indian tribes. See e.g., Ordinance to Regu­late Indian Affairs, Statutes of South Carolina (Aug. 31,1751), in 16 Early American Indian Documents: 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 tradewith 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 forthe 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?sproposals. 5 id., at 545, 546, n. 1. The draft prohibitedStates from waging offensive war against the Indianswithout congressional authorization and granted Congress the exclusive power to acquire land from the Indians out­side state boundaries, once those boundaries had been es­tablished. Id., at 549. This version also gave Congress?the sole and exclusive Right and Power of . . . Regulating the Trade, and managing all Affairs with the Indians.? Id. at 550.

On August 20, 1776, the Committee of the Whole pre­sented to Congress a revised draft, which provided Con­gress with ?the sole and exclusive right and power of . . .regulating the trade, and managing all affairs with the Indians.? Id., at 672, 681?682. Some delegates fearedthat the Articles gave Congress excessive power to in­terfere with States? jurisdiction over affairs with Indians residing within state boundaries. After further delibera­tion, the final result was a clause that included a broad grant of congressional authority with two significant exceptions: ?The United States in Congress assembled shall also have the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits benot infringed or violated.? Articles of Confederation, Art. IX, cl. 4. As a result, Congress retained exclusive jurisdic­tion over Indian affairs outside the borders of the States; the States retained exclusive jurisdiction over relations with Member-Indians;² and Congress and the States ?ex­ercise[d] concurrent jurisdiction over transactions with tribal Indians within state boundaries, but congressionaldecisions 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 werepolitically 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 electeda drafting committee---the Committee of Detail---and charged it to ?report a Constitution conformable to the Res­olutions passed by the Convention.? 2 Records of the Federal Convention of 1787, p.106 (M. Farrand rev. 1966) (J. Madison). During the Committee?s deliberations, JohnRutledge, the chairman, suggested incorporating an In­dian affairs power into the Constitution. Id., at 137, n. 6,  143. The first draft reported back to the convention, however, provided Congress with authority ?[t]o regulatecommerce with foreign nations, and among the 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 modifiedMadison?s proposed clause. The Committee proposed toadd 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 addingto the Commerce Clause the phrase, ?and with the Indiantribes,? id., at 493, which the Convention ultimatelyadopted.

It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulatetrade with the Indians and the power to regulate all In­dian affairs. By limiting Congress? power to the former, the Framers declined to grant Congress the same broad pow­ers over Indian affairs conferred by the Articles of Confed­eration. See Prakash, Against Tribal Fungibility, 89Cornell L. Rev. 1069, 1090 (2004).

During the ratification debates, opposition to the 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 scopewas 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 regulatetrade 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) (praisingthe Constitution for removing the obstacles that hadexisted 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 beobtained to advantage by trading with these people?); TheFederalist 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 ofthe 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 problemwas 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 tribeis 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, 53?54 (1989) (holding that the Indian Tribe had exclusive jurisdiction over child custody proceedings, even though the children were born off thereservation, because the children were ?domiciled? on the reservation for purposes of the ICWA). Although Birth Father is a registered member of The Cherokee Nation, hedid not live on a reservation either. He was, thus, subject to the laws of the State in which he resided (Oklahoma) and of the State where his daughter resided during the custody proceedings (South Carolina). Nothing in the In­dian Commerce Clause permits Congress to enact spe-cial 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 authorityover 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 powerwould allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indiandefendants. Likewise, it would allow Congress to substi­tute federal law for state law when contract disputesinvolve Indians. But the constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, applicationof the ICWA to these child custody proceedings would be unconstitutional.

 

* * *

 

Because the Court?s plausible interpretation of therelevant sections of the ICWA avoids these constitutional problems, I concur.

 

 

 

 

¹  South Carolina, for example, required traders to be licensed, to be ofgood moral character, and to post a bond. Ordinance to RegulateIndian Affairs, in 16 Early American Indian Documents, at 331?334. A potential applicant?s name was posted publicly before issuing thelicense, so anyone with objections had an opportunity to raise them. Id., at 332. Restrictions were placed on employing agents, id., at 333? 334, and names of potential agents had to be disclosed. Id., at 333. Traders who violated these rules were subject to substantial penalties. Id., at 331, 334.

 

²  Although Indians were generally considered ?members? of a State ifthey paid taxes or were citizens, see Natelson 230, the precise defini­tion of the term was ?not yet settled? at the time of the foundingand was ?a question of frequent perplexity and contention in the fed­eral councils,? The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J.Madison).

 

³  Petitioners and the guardian ad litem contend that applying theICWA to child custody proceedings on the basis of race implicates equalprotection concerns. See Brief for Petitioners 45 (arguing that the statute would be unconstitutional ?if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solelyon the Indian child?s race?); Brief for Respondent Guardian Ad Litem 48?49 (same). I need not address this argument because I am satisfiedthat Congress lacks authority to regulate the child custody proceedings in this case.

 

 

 

 

BREYER, J., concurring

 

 

SUPREME COURT OF THE UNITED STATES

 

No. 12?399

 

ADOPTIVE COUPLE,

PETITIONERS

 v.

BABY GIRL,

A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

 

[June 25, 2013]

 

JUSTICE BREYER, concurring.

I join the Court?s opinion with three observations. First, the statute does not directly explain how to treat an ab­sentee Indian father who had next-to-no involvement with his child in the first few months of her life. That categoryof 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 thebetter reading of the statute is, as the majority concludes,to exclude most of those fathers, ante, at 8, 12, I also un­derstand the risk that, from a policy perspective, 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 deceivedabout 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 decidewhether 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 theIndian 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 provisionsallow 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.

 

 

 

SCALIA, J., dissenting

 

SUPREME COURT OF THE UNITED STATES

 

No. 12?399

 

ADOPTIVE COUPLE,

PETITIONERS

v.

BABY GIRL,

A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

 

[June 25, 2013]

 

JUSTICE SCALIA, dissenting.

I join JUSTICE SOTOMAYOR?s dissent except as to one detail. I reject the conclusion that the Court draws fromthe 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 tosatisfy itself (beyond a reasonable doubt) not merely thatinitial 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?sopinion, 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 achild into the world to raise that child. We do not inquirewhether 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.

 

 

 

SOTOMAYOR, J., dissenting

 

SUPREME COURT OF THE UNITED STATES

 

No. 12?399

 

ADOPTIVE COUPLE,

PETITIONERS

 v.

BABY GIRL,

A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL.

 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

 

[June 25, 2013]

 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, and with whom JUSTICE SCALIA joins in part, dissenting.

A casual reader of the Court?s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sen- sible result. In truth, however, the path from the text ofthe 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 supposedlystraightforward 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 sce- nario confronted here, see ante, at 1 (BREYER, J., concurring). The second clue is that the majority begins its analysis byplucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it. That is not how we ordinarily read statutes. The third clue is that the major- ity openly professes its aversion to Congress? explicitlystated purpose in enacting the statute. The majority expresses concern that reading the Act to mean what itsays will make it more difficult to place Indian children inadoptive homes, see ante, at 14, 16, but the Congress thatenacted the statute announced its intent to stop ?an alarmingly high percentage of Indian families [from being] broken up? by, among other things, a trend of ?plac[ing][Indian children] in non-Indian . . . adoptive homes.? 25 U. S. C. §1901(4). Policy disagreement with Congress? judg- ment is not a valid reason for this Court to distort the provisions of the Act. Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and itsstated 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 ofthe 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 majoritythen concludes that §1912(d), tainted by its associationwith §1912(f ), is also inapplicable; in the majority?s view,a family bond that does not take custodial form is not afamily bond worth preserving from ?breakup.? 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 per- ceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fullythose parents have embraced the financial and emotional responsibilities of parenting. The majority thereby transforms a statute that was intended to provide uniformfederal 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 thantheir children,? 25 U. S. C. §1901(3), and it found that this resource was threatened. State authorities insufficientlysensitive to ?the essential tribal relations of Indian peopleand the cultural and social standards prevailing in Indian communities and families? were breaking up Indian families and moving Indian children to non-Indian homes andinstitutions. See §§1901(4)?(5). As §1901(4) makes clear, and as this Court recognized in Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 33 (1989), adoptive placements of Indian children with non-Indianfamilies contributed significantly to the overall problem. See §1901(4) (finding that ?an alarmingly high percentage of [Indian] children are placed in non-Indian . . . adoptive homes?).

Consistent with these findings, Congress declared itspurpose ?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 Federalstandards? applicable to child custody proceedings involving Indian children. §1902. Section 1903 then goes on toestablish the reach of these protections through its defi- nitional provisions. For present purposes, two of thesedefinitions are crucial to understanding the statute?s full scope.

First, ICWA defines the term ?parent? broadly to mean?any biological parent . . . of an Indian child or any In- dian person who has lawfully adopted an Indian child.?§1903(9). It is undisputed that Baby Girl is an ?Indian child? within the meaning of the statute, see §1903(4); ante, at 2, n. 1, and Birth Father consequently qualifiesas a ?parent? under the Act. The statutory definition of parent ?does not include the unwed father where paternityhas 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 devotemany 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 GuardianAd Litem 32?41. These arguments, however, are inconsistent with our recognition in Holyfield that Congressintended 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 themajority assumes for the purposes of its analysis thatBirth Father is an ICWA ?parent.? See ante, at 7.

Second, the Act?s comprehensive definition of ?childcustody proceeding? includes not only ??adoptive placement[s],?? ??preadoptive placement[s],?? and ??foster care   placement[s],?? but also ??termination of parental rights?? proceedings. §1903(1). This last category encompasses ?any action resulting in the termination of the parent­child relationship,? §1903(1)(ii) (emphasis added). So far, then, it is clear that Birth Father has a federally recognized status as Baby Girl?s ?parent? and that his ?parentchild 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, forexample, the state court would have been obligated to transfer it absent an objection from Birth Mother or goodcause to the contrary. See §1911(b). Any voluntary consent Birth Father gave to Baby Girl?s adoption would havebeen invalid unless written and executed before a judgeand would have been revocable up to the time a final decree of adoption was entered.¹ See §§1913(a), (c). And §1912, the center of the dispute here, sets forth proceduraland substantive standards applicable in ?involuntary proceeding[s] in a State court,? including foster careplacements of Indian children and termination of parental rights proceedings. §1912(a). I consider §1912?s provisions in order.

Section 1912(a) requires that any party seeking ?termination of parental rights t[o] an Indian child? provide notice to both the child?s ?parent or Indian custodian?and the child?s tribe ?of the pending proceedings and oftheir right of intervention.? Section 1912(b) mandatesthat counsel be provided for an indigent ?parent or In- dian 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---theright to inspect all material ?reports or other documents filed with the court.? By providing notice, counsel, andaccess to relevant documents, the statute ensures a biological father?s meaningful participation in an adoption proceeding where the termination of his parental rights is atissue.

These protections are consonant with the principle,recognized in our cases, that the biological bond betweenparent and child is meaningful. ?[A] natural parent?sdesire for and right to the companionship, care, custody,and management of his or her children,? we have explained, ?is an interest far more precious than any prop- erty right.? Santosky v. Kramer, 455 U. S. 745, 758?759 (1982) (internal quotation marks omitted). See also infra, at 19-20. Although the Constitution does not compel the protection of a biological father?s parent-child relationship until he has taken steps to cultivate it, this Court hasnevertheless 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 thanstate law may afford.

The majority does not and cannot reasonably disputethat ICWA grants biological fathers, as ?parent[s],? theright to be present at a termination of parental 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 proceduralrights, 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 orstate-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 attemptbe 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 meansthat 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 inactions 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 logicalmatter, 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 pro- vision aims to save from ?discontinuance.?

The majority, reaching the contrary conclusion, assertsbaldly that ?when an Indian parent abandons an Indianchild prior to birth and that child has never been in theIndian parent?s legal or physical custody, there is no ?relationship? that would be ?discontinu[ed]? . . . by the termination of the Indian parent?s rights.? Ante, at 12. Says who? Certainly not the statute. Section 1903 recognizes Birth Father as Baby Girl?s ?parent,? and, in conjunction withICWA?s other provisions, it further establishes that their?parent-child relationship? is protected under federal law.In the face of these broad definitions, the majority has no warrant to substitute its own policy views for Congress? by saying that ?no ?relationship?? exists between Birth Father and Baby Girl simply because, based on the hotly con- tested facts of this case, it views their family bond as in- sufficiently substantial to deserve protection.³ Ibid.

The majority states that its ?interpretation of §1912(d) is . . . confirmed by the provision?s placement next to §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 su- perimposed on the text; but the conclusion the majority draws from the juxtaposition of these provisions is exactly backward.

Section 1912(f ) is paired with §1912(e), and as the majority notes, both come on the heels of the requirement ofrehabilitative efforts just reviewed. The language of thetwo provisions is nearly identical; subsection (e) is headed ?Foster care placement orders,? and subsection (f ), therelevant provision here, is headed ?Parental rights termination orders.? Subsection (f ) reads in its entirety,

 

?No termination of parental rights may be orderedin such proceeding in the absence of a determination,supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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 tandemwith 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 parentalrights; (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 insubsections (a) through (d) suggests a limitation on thetypes of parental relationships that are protected by any ofthe provisions of §1912, and there is nothing in the structure of §1912 that would lead a reader to expect subsection (e) or (f ) to introduce any such qualification. Indeed, both subsections, in their opening lines, refer back to the priorprovisions of §1912 with the phrase ?in such proceeding.? This language indicates, quite logically, that in actionswhere subsections (a), (b), (c), and (d) apply, (e) and (f )apply too.⁵

All this, and still the most telling textual evidence is 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), includ- ing the relationship Birth Father, as an ICWA ?parent,?has with Baby Girl. The majority?s reading disregardsthe 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 interpretiveweight the majority would place on it.

Because a primary dictionary definition of ?continued? is??carried on or kept up without cessation,?? ante, at 8 (brackets omitted), the majority concludes that §1912(f )?does not apply in cases where the Indian parent never had custody of the Indian child,? ante, at 8. Emphasizingthat Birth Father never had physical custody or, under state law, legal custody of Baby Girl, the majority findsthe statute inapplicable here. Ante, at 10?11. But ?literalness may strangle meaning.? Utah Junk Co. v. Porter, 328 U. S. 39, 44 (1946). See also Robinson v. Shell Oil Co., 519 U. S. 337, 341?345 (1997) (noting that a term thatmay ?[a]t first blush? seem unambiguous can prove otherwise when examined in the context of the statute as a whole).⁶ In light of the structure of §1912, which indicates that subsection (f ) is applicable to the same actions towhich 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, theprovision?s explicit statement that it applies to ?termination of parental rights? proceedings, the necessary conclusion is that the word ?custody? does not strictly denote 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? ismost 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 theparent does not have pre-existing custody should, as BirthFather argues, determine whether the party seeking termination of parental rights has established that the continuation of the parent-child relationship will result in ?serious emotional or physical damage to the child.?⁷

The majority is willing to assume, for the sake of argument, that Birth Father is a ?parent? within the meaningof ICWA. But the majority fails to account for all thatfollows from that assumption. The majority repeatedlypasses over the term ?termination of parental rights? that, as defined by §1903, clearly encompasses an action aimed at severing Birth Father?s ?parent-child relationship? withBaby 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 asignal 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 biologicalfathers 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?supbringing.

Consider an Indian father who, though he has never had custody of his biological child, visits her and pays all of hischild 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 familyand proposed her ultimate adoption by them. Clearly, the father?s parental rights would have to be terminatedbefore the adoption could go forward.⁹ On the majority?sview, notwithstanding the fact that this father would bea ?parent? under ICWA, he would not receive the benefit of either §1912(d) or §1912(f ). Presumably the court considering the adoption petition would have to apply somestandard to determine whether termination of his parental rights was appropriate. But from whence would that standard come?

Not from the statute Congress drafted, according to themajority. The majority suggests that it might come from state law. See ante, at 13, n. 8. But it is incongruous tosuppose 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 normin the States, see 1 J. Hollinger, Adoption Law and Practice §2.10 (2012); Santosky, 455 U. S., at 767?768.

While some States might provide protections compar- able to §1912(d)?s required remedial efforts and §1912(f )?sheightened standard for termination of parental rights, many will provide less. There is no reason to believe Congress wished to leave protection of the parental rightsof a subset of ICWA ?parent[s]? dependent on the happenstance of where a particular ?child custody proceeding? takes place. I would apply, as the statute construed inits totality commands, the standards Congress 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 itwould 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 whohave not previously had custody of their children.¹⁰ And notwithstanding the South Carolina Supreme Court?s im- precise interpretation of the provision, see 398 S. C., at647?648, 731 S. E. 2d, at 562, §1912(d) does not require the prospective adoptive family to themselves undertakethe mandated rehabilitative efforts. Rather, it requires theparty seeking termination of parental rights to ?satisfythe court that active efforts have been made? to provideappropriate remedial services.

In other words, the prospective adoptive couple have tomake an evidentiary showing, not undertake person-toperson remedial outreach. The services themselves might be attempted by the Indian child?s Tribe, a state agency, or a private adoption agency. Such remedial efforts are a familiar requirement of child welfare law, including fed- eral child welfare policy. See 42 U. S. C. §671(a)(15)(B) (requiring States receiving federal funds for foster careand adoption assistance to make ?reasonable efforts . . . topreserve 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 onthe party seeking to terminate a father?s parental rightsthe 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 BirthFather 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.¹¹

 

B

 

On a more general level, the majority intimates thatICWA grants Birth Father an undeserved windfall: in themajority?s words, an ?ICWA trump card? he can ?play . . . at the eleventh hour to override the mother?s decision and the child?s best interests.? Ante, at 16. The implicit argument is that Congress could not possibly have intended torecognize a parent-child relationship between Birth Father and Baby Girl that would have to be legally terminated (either by valid consent or involuntary termination) before the adoption could proceed.

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 thattermination 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 showinga substantial lack of regard for his parental obligations,?§26.33.120(2).¹³

Without doubt, laws protecting biological fathers? parental rights can lead---even outside the context of ICWA---to outcomes that are painful and distressing for both wouldbe 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. 3d990, 999 (recognizing that award of custody of 2½-year-old child to biological father under applicable state law oncepaternity is established will result in the ?difficult and pain- ful? necessity of ?removing the child from the only homehe 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 understandingthat 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 lackingthis 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 achild, 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 familysituation 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 prece- dents and do not require a biological father?s consent to adoption unless he has provided financial support during pregnancy. See Quilloin v. Walcott, 434 U. S. 246, 254? 256 (1978); Lehr, 463 U. S., at 261. Other States, how-ever, have decided to give the rights of biological fathersmore robust protection and to afford them consent rightson 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, isconsistent with the law of those States that protected, andprotect, birth fathers? rights more vigorously. This reading can hardly be said to generate an anomaly. ICWA, 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 Indianfather?s relationship with his biological child fragile, but would instead grant it a degree of protection commensurate with the more robust state-law standards.¹⁴

 

C

 

The majority also protests that a contrary result to 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 ?analarmingly high percentage of [Indian] children . . . in non-Indian foster and adoptive homes and institutions.? §1901(4). The Act accomplishes this goal by, first, protecting the familial bonds of Indian parents and children, 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 thenecessity 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 astatute with a view to averting the very consequencesCongress expressly stated it was trying to bring about.Instead, it is the ??judicial duty to give faithful meaning to the language Congress adopted in the light of the evi- dent legislative purpose in enacting the law in question.?? Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 298 (2010) (quoting United States v. Bornstein, 423 U. S. 303, 310 (1976)).

The majority further claims that its reading is 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 mustapply the entire statute Congress has written. While there are indications that central among Congress? concernsin enacting ICWA was the removal of Indian childrenfrom homes in which Indian parents or other guardians had custody of them, see, e.g., §§1901(4), 1902, Con- gress also recognized that ?there is no resource that ismore 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 Indianchildren in homes with no connection to the tribe, whether or not those children were initially in the custody of anIndian parent.¹⁵

Moreover, the majority?s focus on ?intact? families, ante, at 10, begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps 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. Theywould 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. Congressunderstood 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 classificationsbased on Indian tribal membership are not impermissibleracial classifications. See United States v. Antelope, 430

U. S. 641, 645?647 (1977); Morton v. Mancari, 417 U. S. 535, 553?554 (1974). The majority?s repeated, analyticallyunnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal ProtectionClause as applied here. See ante, at 1, 6; see also ante, at 16 (stating that ICWA ?would put certain vulner- able children at a great disadvantage solely because an ancestor---even a remote one---was an Indian? (emphasis added)). I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978). I am particularly averse to doing so when the FederalGovernment 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 CherokeeNation 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 SupremeCourt 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 onremand 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 prospectivelythat §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 Statelaw,? 25 U. S. C. §1915(a) (emphasis added), and containsno temporal qualifications. It would indeed be an odd result for this Court, in the name of the child?s best in-terests, 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 ismanifestly contrary to Congress? express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indiantribes? relationships with the future citizens who are ?vitalto [their] continued existence and integrity.? §1901(3).

The majority casts Birth Father as responsible for 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-monthold child from her adoptive family. It bears remembering,however, that Birth Father took action to assert his parental rights when Baby Girl was four months old, as soon as 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 itduring any ensuing (and protracted) litigation.??? 398 S. C., at 652, 731 S. E. 2d, at 564 (quoting Holyfield, 490 U. S., at 53?54).

The majority?s hollow literalism distorts the statute andignores Congress? purpose in order to rectify a perceivedwrong that, while heartbreaking at the time, was a correctapplication of federal law and that in any case cannot 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 livehalfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty thatthe anguish this case has caused will only be compounded by today?s decision.

I believe that the South Carolina Supreme Court?sjudgment 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 islimited to such circumstances, see ante, at 13, n. 8; see also ante, at 1 (BREYER, J., concurring). While I would welcome any limitations on the majority?s holding given that it is contrary to the language and purposeof the statute, the majority never explains either the textual basis orthe precise scope of its ?abandon[ment]? limitation. I expect that 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 doesnot have a uniform meaning from State to State. See generally 1 J.Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussingvarious state-law standards for establishing parental abandonment of a child).

 

⁴  The full text of subsection (e) is as follows:?No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evi- dence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.?§1912(e).

 

⁵  For these reasons, I reject the argument advanced by the UnitedStates that subsection (d) applies in the circumstances of this case butsubsection (f ) does not. See Brief for United States as Amicus Curiae 24?26. The United States? position is contrary to the interrelated nature of §§1912(d), (e), and (f ). Under the reading that the UnitedStates 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 terminationof parental rights could be ordered in the event that rehabilitativeefforts 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 theadjective ?continued? mandates the retrospective, rather than prospective, application of §1912(f )?s standard.

 

⁷ The majority overlooks Birth Father?s principal arguments when itdismisses his reading of §1912(f ) as ?nonsensical.? Ante, at 8. He does argue that if one accepts petitioners? view that it is impossible to makea 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 possibleto make a determination of likely harm in the circumstances of thiscase, 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 holdingby asserting that the parent-child relationships of noncustodial fatherswith visitation rights will be at stake in an ICWA proceeding in only ?a relatively small class of cases.? Ante, at 13, n. 8. But it offers no support for this assertion, beyond speculating that there will not bemany fathers affected by its interpretation of §1912(d) because it isqualified by an ?abandon[ment]? limitation. Ibid. Tellingly, the 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 withtheir 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 falselythat 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), orotherwise obstructed the father?s involvement in the child?s life, see, e.g., In re Baby Girl W., 728 S. W. 2d 545 (Mo. App. 1987) (birth mothermoved and did not inform father of her whereabouts); In re Petition of Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancyexpenses until birth mother cut off contact with him and told him thattheir child had died shortly after birth). And it includes biologicalfathers who did not contribute to pregnancy expenses because theywere unable to do so, whether because the father lacked sufficient means, the expenses were covered by a third party, or the birth motherdid not pass on the relevant bills. See, e.g., In re Adoption of B. V., 2001 UT App 290, ¶¶ 24?31, 33 P. 3d 1083, 1087?1088.

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 ofartificial insemination and then carry the child to term, only to put thechild up for adoption or be found so unfit as mothers that state authorities attempt an involuntary adoptive placement---thereby necessitatingtermination of the parental rights of the sperm donor father---the majority does not cite them. As between a possibly overinclusive interpretation of the statute that covers this unlikely class of cases, 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?sdesign.

 

⁹  With a few exceptions not relevant here, before a final decree ofadoption may be entered, one of two things must happen: ?the biologicalparents must either voluntarily relinquish their parental rights or havetheir rights involuntarily terminated.? 2A. Haralambie, 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 thatthe services will benefit the child?); In re T. B. W., 312 Ga. App. 733,734?735, 719 S. E. 2d 589, 591 (2011) (describing reunification services provided to biological father beginning when ?he had yet to establishhis paternity? under state law, including efforts to facilitate visitationand involving father in family ? ?team meetings? ?); In re 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 Jerseystatutory 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 thereforeirrelevant here. Ante, at 14, n. 9. But as a general matter, if a parenthas rights that are an obstacle to an adoption, the state- and federallaw safeguards of those rights must be honored, irrespective of prospective adoptive parents? understandable and valid desire to see theadoption finalized. ?We must remember that the purpose of an adoption is to provide a home for a child, not a child for a home.? In 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 (West1977) (same); Nev. Rev. Stat. §§127.040, 127.090 (1971) (same); R. I.Gen. Laws §§15?7?5, 15?7?7 (Bobbs-Merrill 1970) (same); Conn. Gen. Stat. §§45?61d, 45?61i(b)(2) (1979) (natural father?s consent required 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 judiciallyestablished); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-MerrillSupp. 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 judicially established, or paternity asserted by affidavit); N. H. Rev. Stat. Ann.§170?B:5(I)(d) (1977) (natural father?s consent required if he files noticeof intent to claim paternity within set time from notice of prospective adoption); Wash. Rev. Code §§26.32.040(5), 26.32.085 (1976) (naturalfather?s consent required if paternity acknowledged, judicially established, or he files notice of intent to claim paternity within set timefrom notice of prospective adoption); W. Va. Code Ann. §48?4?1 (MichieSupp. 1979) (natural father?s consent required if father admits paternity by any means). See also Del. Code Ann., Tit. 13, §908(2) (MichieSupp. 1980) (natural father?s consent required unless court finds thatdispensing with consent requirement is in best interests of the child); Wyo. Stat. Ann. §§1?22?108, 1?22?109 (Michie 1988) (same).

 

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 ofparental 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 custody is subsequently granted to a child?s fit parent, consistent withthe presumption that a natural parent will act in the best interests ofhis child. See supra, at 19?20.

 

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 ofwhich 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 plausiblereading, he believes that the majority?s reading avoids ?significantconstitutional problems? concerning whether ICWA exceeds Congress?authority under the Indian Commerce Clause. Ante, at 1, 3?12. No party advanced this argument, and it is inconsistent with this Court?sprecedents holding that Congress has ?broad general powers to leg- islate in respect to Indian tribes, powers that we have consistentlydescribed as plenary and exclusive,? founded not only on the IndianCommerce Clause but also the Treaty Clause. United States v. Lara, 541 U. S. 193, 200?201 (2004) (internal quotation marks omitted).