Couple v. Girl

“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 (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)'s adoption placement preferences would have applied.

Held:

1. Assuming for the sake of argument that Biological Father is a “parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights. Pp. 646-654, 186 L. Ed. 2d, at 739-743.

(a) Section 1912(f) conditions the involuntary termination of parental rights on a heightened showing regarding the merits of the parent's “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions. The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutory text, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA's primary goal is not implicated when an Indian child's adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. time of the adoption proceedings. Pp. 647-651, 186 L. Ed. 2d, at 739-741.

(b) Section 1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active efforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family's “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster's Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent's legal or physical of setting certain “standards for the removal of Indian children from their families,” §1902, and with BIA Guidelines. Section 1912(d)'s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child's “continued custody” with his parent, strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. Pp. 651-654, 186 L. Ed. 2d, at 741-743.

And custody was never sought by Baby Girl's paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 654-656, 186 L. Ed. 2d, at 743-744.

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., post, p. 656, and Breyer, J., post, p. 666, filed concurring opinions. Scalia, J., filed a dissenting opinion, post, p. 667. Sotomayor, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined, and in which Scalia, J., joined in part, post, p. 668.

Justice Alito delivered the opinion of the Court.

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his at issue here do not demand this result.

Contrary to the State Supreme Court’s Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.

I

“The Indian Child Welfare Act of 1978 (ICWA or Act), 92 Stat. 3069, 25 U. S. C. §§1901-1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4). This “wholesale removal of Indian children from their homes” prompted Congress to enact the ICWA, which establishes federal standards that govern state-court child custody proceedings involving Indian children. Id., 490 U.S. at 32, 36, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (internal quotation marks omitted); see also §1902 (declaring that the ICWA establishes “minimum Federal standards for the removal of Indian children from their families”).

It is undisputed that Baby Girl is an “Indian child” as defined by the ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” §1903(4)(b). See Brief for Respondent Birth Father 1, 51, n. 22; Brief for Respondent Cherokee Nation 1; Brief for Petitioners 44 (“Baby Girl’s eligibility for membership in the Cherokee Nation depends solely upon a lineal blood relationship with a tribal ancestor”). It is also undisputed that the present case concerns a “child custody proceeding,” which the ICWA defines to include proceedings that involve “termination of parental rights” and “adoptive placement,” §1903(1).

child.” §1912(f). Third, with respect to adoptive placements for an Indian child under state law, “a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” §1915(a).

II

In this case, Birth Mother (who is predominantly Hispanic) and Biological Father (who is a member of the Cherokee Nation) became engaged in December 2008. One month later, Birth Mother informed Biological Father, who lived about four hours away, that she was pregnant. After learning of the pregnancy, Biological Father asked Birth Mother to move up the date of the wedding. He also refused to provide any financial support until after the two had married. The couple’s relationship deteriorated, and Birth Mother broke off the engagement in May 2009. In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights.

Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter misspelled Biological Father’s first name and incorrectly stated his birthday, and the Cherokee Nation responded that, based on the information provided, it could not verify Biological Father’s membership in the tribal records.

Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby Girl.

It is undisputed that, for the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl, even though he had the ability to do so. Indeed, Biological Father “made no meaningful attempts to assume his responsibility of parenthood” during this period. App. to Pet. for Cert. 122a (Sealed; internal quotation marks omitted).

Approximately four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. (This was the first notification that they had provided relinquishing his rights to Birth Mother, not to Adoptive Couple.

Biological Father contacted a lawyer the day after signing the papers, and subsequently father.

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

A trial took place in the South Carolina Family Court in September 2011, by which time Baby Girl was two years old. 398 S. C. 625, 634-635, 731 S. E. 2d 550, 555-556 (2012). The Family Court concluded that Adoptive Couple had not carried the heightened burden under §1912(f) of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody. See id., at 648-651, 731 S. E. 2d, at 562-564. The Family Court therefore denied Adoptive Couple’s petition for adoption and awarded custody to Biological Father. Id., at 629, 636, 731 S. E. 2d, at 552, 556. On December 31, 2011, at the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met.

According to the guardian ad litem, Biological Father allowed Baby Girl to speak with Adoptive Couple by telephone the following day, but then cut off all communication between them. Moreover, according to Birth Mother, Biological Father has made no attempt to contact her since the time he took custody of Baby Girl.

The South Carolina Supreme Court affirmed the Family Court’s denial of the adoption and the award of custody to Biological Father. Id., at 629, 731 S. E. 2d, at 552. The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child. Id., at 637, 643, n. 18, 731 S. E. 2d, (citing §1912(f)). Finally, the court stated that, even if it had decided to terminate Biological Father’s parental rights, §1915(a)’s adoptionplacement preferences would have applied. Id., at 655-657, 731 S. E. 2d, at 566-567. We granted certiorari. 568 U. S. 1081, 133 S. Ct. 831, 184 L. Ed. 2d 646 (2013).

[***739] III

It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law. See Tr. of Oral Arg. 49; 398 S. C., at 644, n. 19, 731 S. E. 2d, at 560, n. 19 (“Under state law, [Biological] Father’s consent to the adoption would not have been required”). The South Carolina Supreme Court held, however, that Biological Father is a “parent” under the ICWA and that two statutory provisions — namely, §§1912(f) and (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 his parental rights.

If Biological Father is not a “parent” under the ICWA, then §§1912(f) and (d) — which relate to proceedings involving possible termination of “parental” rights—are inapplicable. Because we conclude that these provisions are inapplicable for other reasons, however, we need not decide whether Biological Father is a “parent.”

A

Section 1912(f) addresses the involuntary termination of parental rights with respect to an Indian child. Specifically, §1912(f) provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Emphasis added.) The South Carolina Supreme Court held that Adoptive Couple failed to satisfy §1912(f) because they did not make a heightened showing that Biological Father’s “ prospective legal and physical custody” would likely result in serious damage to the child. 398 S. C., at 651, 731 S. E. 2d, at 564 (emphasis added). That holding was error.

Section 1912(f) conditions the involuntary termination already has (or at least had at some point in the past). As a result, §1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.

With a torrent of words, the dissent attempts to obscure the fact that its interpretation simply cannot be squared with the statutory text. A biological father’s “continued custody” of a child cannot be assessed if the father never had custody at all, and the use of a different phrase — “termination of parental rights” — cannot change that. In addition, the dissent’s reliance on subsection headings, post, at 676, 186 L. Ed. 2d, at 756, overlooks the fact that those headings were not actually enacted by Congress. See 92 Stat. 3071-3072.

Biological Father’s contrary reading of §1912(f) is nonsensical. Pointing to the provision’s requirement that “[n]o termination of parental rights may be ordered . . . in the absence of a determination” relating to “the continued custody of the Birth Father 39. But it would be absurd to think that Congress enacted a provision that permits termination of a custodial parent’s rights, while simultaneously prohibiting termination of a noncustodial parent’s rights. If the statute draws any distinction between custodial and noncustodial parents, that distinction surely does not provide greater protection for noncustodial parents.

The dissent criticizes us for allegedly concluding that a biological father qualifies for “substantive” statutory protections “only when [he] has physical or state-recognized legal custody.” Post, at 670, 673-674, 186 L. Ed. 2d, at 753, 754-756. But the dissent undercuts its own point when it states that “numerous” ICWA provisions not at issue here afford “meaningful” protections to biological fathers regardless of whether they ever had custody. Post, at 672-674, and nn. 1, 2, 186 L. Ed. 2d, at 754-756.

(f)). In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.

or not serious damage to the child is likely to occur if the child is not removed”).

Under our reading of §1912(f), Biological Father should not have been able to invoke §1912(f) in this case, because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. As an initial matter, it is undisputed that Biological Father never had physical custody of Baby Girl. And as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either. See S. C. Code Ann. §63-17-20(B) (2010) (“Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child”); Okla. Stat., Tit. 10, §7800 (West Cum. Supp. 2013) (“Except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction”).

In an effort to rebut our supposed conclusion that “Congress could not possibly have intended” to require legal termination of Biological Father’s rights with respect to Baby Girl, the dissent asserts that a minority of States afford (or used to afford) protection to similarly situated biological fathers. See post, at 684-685, 186 L. Ed. 2d, at 761-762, 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 (f) to all biological fathers. The fact that state laws may provide certain protections to biological fathers who have abandoned their children and who have never had custody of their children in no way undermines our analysis of these two federal statutory provisions.

In sum, the South Carolina Supreme Court erred in finding that §1912(f) barred termination of Biological Father’s parental rights.

B

Section 1912(d) provides that “[a]ny party” seeking to terminate parental rights to an Indian child under state law “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (Emphasis added.) The South Carolina Supreme Court found that Biological Father’s parental rights could not be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial services in accordance with §1912(d). 398 S. C., at 647-648, 731 S. E. 2d, at 562. We disagree.

Consistent with the statutory text, we hold that §1912(d) applies only in cases where an Indian family’s “breakup” would be precipitated by the termination of the parent’s rights. The term “breakup” refers in this context to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s 273 (defining “breakup” as “a disruption or dissolution into component parts: an ending as an effective entity”). See also Compact OED 1076 (defining “break-up” as, inter alia, a “disruption, separation into parts, disintegration”). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no “relationship” that would be “discontinu[ed]” — and no “effective entity” that would be “end[ed]” — by the termination of the Indian parent’s rights. In such a situation, the “breakup of the Indian family” has long since occurred, and §1912(d) is inapplicable.

consistent with the explicit congressional purpose of providing certain “standards for the removal of Indian children from their families.” §1902 (emphasis added); see also, e.g., §1901(4); Holyfield, 490 U. S., at 32-34, 109 S. Ct. 1597, 104 L. Ed. 2d 29. In addition, the BIA’s Guidelines confirm that remedial services under §1912(d) are intended “to alleviate the need to remove the Indian child from his or her parents or Indian custodians,” not to facilitate a transfer of the child to an Indian parent. See 44 Fed. Reg., at 67592 (emphasis added).

Our interpretation of §1912(d) is also confirmed by the provision’s placement next to §§1912(e) and (f), both of which condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent. That these three provisions appear adjacent to each other strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371, 108 S. Ct. 626, 98 L. Ed. 2d 740 (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 continued custody” that is protected by §§1912(e) and (f).

The dissent claims that our reasoning “necessarily extends to all Indian parents who have never had custody of their children,” even if those parents have visitation rights. Post, at 670, 679-681, 186 L. Ed. 2d, at 753, 759-760. As an initial matter, the dissent’s concern about the effect of our decision on individuals with visitation rights will be implicated, at most, in a relatively small class of cases. For example, our interpretation of §1912(d) would implicate the dissent’s concern only in the case of a parent who abandoned his or her child prior to birth and never had physical or legal custody, but did have some sort of visitation rights. Moreover, in cases where this concern is implicated, such parents might receive “comparable” protections under state law. See post, at 682, 186 L. Ed. 2d, at 760. And in any event, it is the dissent’s interpretation that would have far-reaching consequences: Under the dissent’s reading, any biological parent—even a sperm donor—would enjoy the heightened protections of §§1912(d) and (f), even if he abandoned the mother and the child immediately after conception. Post, at 680, n. 8, 186 L. Ed. 2d, at 759.

disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption.

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?

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, 669, 186 L. Ed. 2d, at 752; see also post, at 675, 668, 186 L. Ed. 2d, at 756.

In sum, the South Carolina Supreme Court erred in finding that §1912(d) barred termination of Biological Father’s parental rights.

IV

In the decision below, the South Carolina Supreme Court suggested that if it had terminated Biological Father’s rights, then §1915(a)’s preferences for the adoptive placement of an Indian child would have been applicable. 398 S. C., at 655-657, 731 S. E. 2d, at 566-567. In so doing, however, the court failed to recognize a critical limitation on the scope of §1915(a).

Section 1915(a) provides that “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Contrary to the South Carolina Supreme Court’s suggestion, §1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under §1915(a) has come forward.

for Respondent Cherokee Nation 21-22; Reply Brief for Petitioners 13-14.

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’s preferences in a way that includes a biological father whose rights were terminated, but who has now reformed. See §1915(c). If a tribe were to take such an approach, however, the court would still have the power to determine whether “good cause” exists to disregard the tribe’s order of preference. See §§1915(a), (c); In re Adoption of T. R. M., 525 N. E. 2d 298, 313 (Ind. 1988).

To be sure, an employee of the Cherokee Nation testified that the Cherokee Nation certifies families to be adoptive parents and that there are approximately 100 such families “that are ready to take children that want to be adopted.” Record 446. However, this testimony was only a general statement regarding the Cherokee Nation’s practices; it did not demonstrate that a specific Indian family was willing to adopt Baby Girl, let alone that such a family formally sought such adoption in the South Carolina courts. See Reply Brief for Petitioners 13-14; see also Brief for Respondent Cherokee Nation 21-22.

The ICWA was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian. As the State Supreme §§1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§1912(f) and (d) makes clear that neither provision applies in the present context. Nor do §1915(a)’s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child. We therefore reverse the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Concur by:Thomas; Breyer

Concur

Justice Thomas, concurring.

I join the Court’s opinion in full but write separately to explain why constitutional avoidance compels this out-come. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raise significant constitutional problems as applied to this case. Because the Court’s decision avoids those problems, I concur in its interpretation.

I

This case arises out of a contested state-court adoption proceeding. Adoption proceedings are adjudicated in state family courts across the country every day, and “domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). Indeed, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U. S. 586, 593-594, 10 S. Ct. 850, 34 L. Ed. 500 (1890). Nevertheless, when Adoptive Couple filed a petition in South Carolina Family Court to finalize their adoption of Baby Girl, Birth Father, who had relinquished his parental rights via a text message to Birth Mother, claimed a federal right under the ICWA to block the adoption and to obtain custody.

The ICWA establishes “federal standards that govern state-court child custody proceedings involving member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U. S. C. §1903(4). As relevant, the ICWA defines “child custody proceeding,” §1903(1), to include “adoptive placement,” which means “the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption,” §1903(1)(iv), and “termination of parental rights,” which means “any action resulting in the termination of the parent-child relationship,” §1903(1)(ii).

The ICWA restricts a state court’s ability to terminate the parental rights of an Indian parent in two relevant ways. Section 1912(f) prohibits a state court from involuntarily terminating parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Section 1912(d) prohibits a outcomes than would result under state law. That is precisely what happened here. See ante, at 646, 186 L. Ed. 2d, at 739 (“It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law”).

The ICWA recognizes States’ inherent “jurisdiction over Indian child custody proceedings,” §1901(5), but asserts that federal regulation is necessary because States “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families,” ibid. However, Congress may regulate areas of traditional state concern only if the Constitution grants it such power. Admt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved.

II

The ICWA asserts that the Indian Commerce Clause, Art. I, §8, cl. 3, and “other constitutional authority” provide Congress with “plenary power over Indian affairs.” §1901(1). The reference to “other constitutional authority” is not illuminating, and I am aware of no other enumerated power that could even arguably support Congress’ intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes”); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev. 201, 210 (2007) (hereinafter the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192, 109 S. Ct. 1698, 104 L. Ed. 2d 209 (1989), neither the text nor the original understanding of the Clause supports Congress’ claim to such “plenary” power.

A

The Indian Commerce Clause gives Congress authority “[t]o regulate Commerce . . . with the Indian tribes.” Art. I, §8, cl. 3 (emphasis added). “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United States v. Lopez, 514 U. S. 549, 585, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (Thomas, J., concurring). See also 1 S. Johnson, A Dictionary of the English Language 361 (4th rev. ed. 1773) (reprint 1978) (defining commerce as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”). “[W]hen Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering (Thomas, J., concurring). The term “commerce” did not include economic activity such as “manufacturing and agriculture,” ibid., let alone noneconomic activity such as adoption of children.

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

The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is given the power to regulate Commerce “with the Indian tribes.” The Clause does not give Congress the power to regulate commerce with all Indian persons any more than the Foreign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading of the text, thus, confirms that Congress may only regulate commercial interactions — “commerce” — taking place with established Indian communities — “tribes.” That power is far from “plenary.”

B

Congress’ assertion of “plenary power” over Indian affairs is also inconsistent with the history of the Indian Commerce Clause. At the time of the founding, the Clause was understood to reserve to the States general police powers with respect to Indians who were citizens of the several States. The Clause instead conferred on Congress the much narrower power to regulate trade with Indian tribes — that is, Indians who had not been incorporated into the body-politic of any State.

1

Before the Revolution, most Colonies adopted their own regulations governing Indian trade. See Natelson 219, and n. 121 (citing colonial laws). Such regulations were necessary because colonial traders all too often abused their Indian trading partners, through fraud, exorbitant no uniformity among the colonies, no two sets of like regulations.” Prucha 21.

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

Recognizing the need for uniform regulation of trade with the Indians, Benjamin Franklin proposed his own “articles of confederation” to the Continental Congress on July 21, 1775, which reflected his view that central control over Indian affairs should predominate over local control. 2 J. Cont’l Cong. 195-199 (W. Ford ed. 1905). Franklin’s proposal was not enacted, but in November 1775, Congress empowered a Committee to draft regulations for the Indian trade. 3 id., at 364, 366. On July 12, 1776, the Committee submitted a draft of the Articles of Confederation to Congress, which incorporated many of Franklin’s proposals. id., at 545, 546. n. 1. The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress the exclusive power to acquire land from the Indians out-side state boundaries, once those boundaries had been established. Id., 514 U.S. at 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 . ration to Congress, which incorporated many of Franklin’s proposals. 5 id., at 545, 546, n. 1. The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress the exclusive power to acquire land from the Indians out-side state boundaries, once those boundaries had been established. Id., 514 U.S. at 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 . This version also gave Congress “the sole and exclusive Right and Power of . . . Regulating the Trade, and managing all Affairs with the Indians.” Id., 514 U.S. at 550, 115 S. Ct. 1624, 131 L. Ed. 2d 626.

On August 20, 1776, the Committee of the Whole presented would have to be in compliance with local law.” Natelson 230. The drafting of the Articles of Confederation reveals the delegates’ concern with protecting the power of the States to regulate Indian persons who were politically incorporated into the States. This concern for state power reemerged during the drafting of the Constitution.

Although Indians were generally considered “members” of a State if they paid taxes or were citizens, see Natelson 230, the precise definition of the term was “not yet settled” at the time of the founding and was “a question of frequent perplexity and contention in the fed-eral councils,” The Federalist No. 42, p. 269 (C. Rossiter ed. 1961) (J. Madison).

[*663] 2

The drafting history of the Constitutional Convention also supports a limited construction of the Indian adding to the Commerce Clause the phrase, “and with the Indian tribes,” id., at 493 (Journal), which the Convention ultimately adopted.

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

During the ratification debates, opposition to the Indian Commerce Clause was nearly nonexistent. See Natelson 248 (noting that Robert Yates, a New York Anti-Federalist, was “almost the only writer who objected to any part [of ] the Commerce Clause — a clear indication that its scope was understood to be fairly narrow” (footnote omitted)). Given the Anti-Federalists’ vehement opposition to the Constitution’s other grants of power to the Federal Government, this silence is revealing. The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes 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 proceeding[s],” §1903(1), not “commerce.” It was enacted in response to concerns that “an alarmingly high percentage of Indian families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4). The perceived problem was that many Indian children were “placed in non-Indian foster and adoptive homes and institutions.” Ibid. This problem, however, had nothing to do with commerce.

Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes. Sections 1912(d) and (f ) and §1915(a) apply to all child custody proceedings involving an Indian child, regardless of whether an Indian tribe is involved. This case thus does not directly implicate Congress’ power to “legislate in respect to Indian tribes.” United States v. Lara, 541 U. S. 193, 200, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004) Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of his status as an Indian.

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

can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional.

* * *

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

Justice Breyer, concurring.

I join the Court’s opinion with three observations. First, the statute does not directly explain how to treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life. That category of fathers may include some who would prove highly unsuitable parents, some who would be suitable, and a range of others in between. Most of those who fall within that category seem to fall outside the scope of the language of 25 U. S. C. §§1912(d) and (f). Thus, while I agree that the better reading of the statute is, as the majority concludes, to exclude most of those fathers, ante, at 647-648, 651-652, 186 L. Ed. 2d, at 739, 742, I also understand the risk that, from a policy perspective, the Court’s interpretation could prove to exclude too many, see post, at 679-680, 689, 186 L. Ed. 2d, at 759, 764-765 (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.” Post, at 680, 186 L. Ed. 2d, at 759. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child. See ibid., n. 8, 186 L. Ed. 2d, at 759. The Court need not, and in my view does not, now decide whether or how §§1912(d) and (f) apply where those circumstances are present.

Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families . . . .in the absence of good cause to the contrary.” Further, §1915(c) allows the “Indian child’s tribe” to “establish a different order of preference by resolution.” Could these provisions allow an absentee father to reenter 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.

Dissent by:SCALIA; SOTOMAYOR

Dissent

Justice Scalia, dissenting.

I join Justice Sotomayor’s dissent except as to one detail. I reject the conclusion that the Court draws from the words “continued custody” in 25 U. S. C §1912(f) not because not merely that initial or temporary custody is not “likely to result in serious emotional or physical damage to the child,” but that continued custody is not likely to do so. See Webster’s New International Dictionary 577 (2d ed. 1950) (defining “continued” as “[p]rotracted in time or space, esp. without interruption; constant”). For the reasons set forth in Justice Sotomayor’s dissent, that connotation is much more in accord with the rest of the statute.

While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

Justice Sotomayor, with whom Justice Ginsburg and Justice Kagan join, and with whom Justice Scalia joins in part, dissenting.

A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result. In truth, however, the path from the text of the Indian Child Welfare Act of 1978 (ICWA or Act) to the result the Court reaches is anything but clear, and its result anything but right.

The reader’s first clue that the majority’s supposedly straightforward reasoning is flawed is that not all Members The third clue is that the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute. The majority expresses concern that reading the Act to mean what it says will make it more difficult to place Indian children in adoptive homes, see ante, at 653-654, 655-656, 186 L. Ed. 2d, at 743, 744, but the Congress that enacted the statute announced its intent to stop “an alarmingly high percentage of Indian families [from being] broken up” by, among other things, a trend of “plac[ing] [Indian children] in non-Indian . . . adoptive homes.” 25 U. S. C. §1901(4). Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the provisions of the Act. Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose. I respectfully dissent.

I

Beginning its reading with the last clause of §1912(f), the majority concludes does not stop there. Under its reading, §1903(9), which makes biological fathers “parent[s]” under this federal statute (and where, again, the phrase “continued custody” does not appear), has substantive force only when a birth father has physical or state-recognized legal custody of his daughter.

When it excludes noncustodial biological fathers from the Act’s substantive protections, this textually backward reading misapprehends ICWA’s structure and scope. Moreover, notwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting. The majority thereby transforms a statute that was intended to provide uniform federal standards for child custody proceedings involving Indian children and their biological parents into an illogical piecemeal scheme.

A

Better to start at the beginning and consider the operation of the statute as a whole. Cf. ante, at 652, 186 L. Ed. 2d, at 742 (“[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, 108 S. Ct. 626, 98 L. Ed. 2d 740 (1988))).

ICWA commences with express findings. Congress recognized that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” 25 U. S. C. §1901(3), and it found that this resource was threatened. State authorities insufficiently sensitive to “the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families” were breaking up Indian families and moving Indian children to non-Indian homes and institutions. See §§1901(4)-(5). As §1901(4) makes clear, and as this Court significantly to the overall problem. See §1901(4) (finding that “an alarmingly high percentage of [Indian] children are placed in non-Indian . . . adoptive homes”).

Consistent with these findings, Congress declared its purpose “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards” applicable to child custody proceedings involving Indian children. §1902. Section 1903 then goes on to establish the reach of these protections through its definitional provisions. For present purposes, two of these definitions are crucial to understanding the statute’s full scope.

First, ICWA defines the term “parent” broadly to mean “any biological parent . . . of an Indian child or any Indian person who has lawfully adopted an Indian child.” §1903(9). It is undisputed that Baby Girl is an “Indian child” within the meaning of the statute, see §1903(4); ante, at 642, n. 1, 186 L. Ed. 2d, at 736, and Birth Father consequently qualifies as a “parent” under the Act. The statutory definition of parent “does not include the unwed father where paternity has not been acknowledged or established,” §1903(9), state court proceedings, App. to Pet. for Cert. 109a (Sealed).

Petitioners and Baby Girl’s guardian ad litem devote many pages of briefing to arguing that the term “parent” should be defined with reference to the law of the State in which an ICWA child custody proceeding takes place. See Brief for Petitioners 19-29; Brief for Respondent Guardian ad Litem 32-41. These arguments, however, are inconsistent with our recognition in Holyfield that Congress intended the critical terms of the statute to have uniform federal definitions. See 490 U. S. at 44-45, 109 S. Ct. 1597, 104 L. Ed. 2d 29. It is therefore unsurprising, although far from unimportant, that the majority assumes for the purposes of its analysis that Birth Father is an ICWA “parent.” See ante, at 646-647, 186 L. Ed. 2d, at 739.

Second, the Act’s comprehensive definition of “child custody proceeding” includes not only “‘adoptive placement[s],’” “‘preadoptive placement[s],’” and “‘foster care placement[s],’” but also “‘termination of parental rights’” proceedings. §1903(1). This last category encompasses “ any action resulting in the termination of the parent-child relationship,” §1903(1)(ii) (emphasis added). So far, then, it is clear that Birth Father has a federally recognized status as Baby Girl’s “parent” and that his “parent-child relationship” with her is subject to the protections of the Act.

These protections are numerous. Had Birth Father petitioned to remove this proceeding to tribal court, for example, the state court would have been obligated to transfer it absent an objection from Birth Mother or good cause to the contrary. See §1911(b). Any voluntary consent Birth Father gave to Baby Girl’s adoption would have been invalid unless written and executed before a judge and would have been revocable up to the time a final decree of adoption was entered. See §§1913(a), (c). And §1912, the center of the dispute here, sets forth procedural and substantive standards applicable in “involuntary proceeding[s] in a State court,” including foster care placements of Indian children and termination of parental rights proceedings. §1912(a). I consider §1912’s provisions in order.

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 644-645, 186 L. Ed. 2d, at 737. Petitioners do not challenge this aspect of the South Carolina court’s holding.

both the child’s “parent or Indian custodian” and the child’s tribe “of the pending proceedings and of their right of intervention.” Section 1912(b) mandates that counsel be provided for an indigent “parent or Indian custodian” in any “termination proceeding.” Section 1912(c) also gives all “part[ies]” to a termination proceeding — which, thanks to §§1912(a) and (b), will always include a biological father if he desires to be present—the right to inspect all material “reports or other documents filed with the court.” By providing notice, counsel, and access to relevant documents, the statute ensures a biological father’s meaningful participation in an adoption proceeding where the termination of his parental rights is at issue.

These protections are consonant with the principle, recognized in our cases, that the biological bond between parent and child right.” Santosky v. Kramer, 455 U. S. 745, 758-759, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (internal quotation marks omitted). See also infra, at 686-687, 186 L. Ed. 2d, at 762-763. Although the Constitution does not compel the protection of a biological father’s parent-child relationship until he has taken steps to cultivate it, this Court has nevertheless recognized that “the biological connection . . . offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” Lehr v. Robertson, 463 U. S. 248, 262, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983). Federal recognition of a parent-child relationship between a birth father and his child is consistent with ICWA’s purpose of providing greater protection for the familial bonds between Indian parents and their children than state law may afford.

The majority does not and cannot reasonably dispute that ICWA grants biological fathers, as “parent[s],” the right to be present at a termination of parental rights proceeding and gives with one hand and takes away with the other. Having assumed a uniform federal definition of “parent” that confers certain procedural rights, the majority then illogically concludes that ICWA’s substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. The statute does not support this departure.

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.

Section 1912(d) provides:

“Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (Emphasis added.)

In other words, subsection (d) requires that an attempt be made to cure familial deficiencies before the drastic measures of foster care placement or termination of parental rights can be taken.

The majority would hold that is fully capable of being preserved via remedial services and rehabilitation programs. See infra, at 682-684, 186 L. Ed. 2d, at 760-761. Nothing in the text of subsection (d) indicates that this blood relationship should be excluded from the category of familial “relationships” that the provision aims to save from “discontinuance.”

The majority, reaching the contrary conclusion, asserts baldly that “when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is Says who? Certainly not the statute. Section 1903 recognizes Birth Father as Baby Girl’s “parent,” and, in conjunction with ICWA’s other provisions, it further establishes that their “parent-child relationship” is protected under federal law. In the face of these broad definitions, the majority has no warrant to substitute its own policy views for Congress’ by saying that “no ‘relationship’” exists between Birth Father and Baby Girl simply because, based on the hotly contested facts of this case, it views their family bond as insufficiently substantial to deserve protection. Ibid.

The majority’s discussion of §1912(d) repeatedly references Birth Father’s purported “abandon[ment]” of Baby Girl, ante, at 651-652, 653, and n. 8, 186 L. Ed. 2d, at 742, 743,743, and it contends that its holding with regard to this provision is limited to such circumstances, see ante, at 653, n. 8, 186 L. Ed. 2d, at 743; see also ante, at 667, 186 L. Ed. 2d, at 751 (Breyer, J., concurring). While I would welcome any limitations on the majority’s holding given that it is contrary to the language and purpose of the statute, the majority never explains either the textual basis or the precise scope of its “abandon[ment]” limitation. I expect that the majority’s inexact use of the term “abandon[ment]” will sow confusion, because it is a commonly used term of art in state family law that does not have a uniform meaning from State to State. See generally 1 J. Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussing various state-law standards for establishing parental abandonment of a child).

The majority states that its “interpretation of §1912(d) is . . . confirmed by the provision’s placement next to §§1912(e) and (f),” both of which use the phrase “‘continued custody.’” Ante, at 652, 186 L. Ed. 2d, at 742. This is the only aspect of the majority’s argument regarding §1912(d) that is based on ICWA’s actual text rather than layers of assertion superimposed on the text; but the conclusion the majority draws from the juxtaposition of these provisions is exactly backward.

Section 1912(f) is paired with §1912(e), and as the majority notes, both come on the heels of the requirement here, is headed “Parental rights termination orders.” Subsection (f) reads in its entirety:

“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” §1912(f).

“No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, 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).

The immediate inference to be drawn from the statute’s structure is that subsections (e) and (f) work in tandem with the rehabilitative efforts required by (d). Under subsection (d), state authorities must attempt to provide “remedial services and rehabilitative programs” aimed at avoiding foster care placement or termination of parental rights; (e) that are protected by any of the provisions of §1912, and there is nothing in the structure of §1912 that would lead a reader to expect subsection (e) or (f) to introduce any such qualification. Indeed, both subsections, in their opening lines, refer back to the prior provisions of §1912 with the phrase “in such proceeding.” This language indicates, quite logically, that in actions where subsections (a), (b), (c), and (d) apply, (e) and (f) apply too.

For these reasons, I reject the argument advanced by the United States that subsection (d) applies in the circumstances of this case but subsection (f) does not. See Brief for United States as Amicus Curiae 24-26. The United States’ position is contrary to the interrelated nature of §§1912(d), (e), and (f). Under the reading that the United States proposes, in a case such as this one the curative provision would stand alone; ICWA would provide no evidentiary or substantive standards by which to measure whether foster care placement or termination of parental rights could be ordered in the event that rehabilitative efforts did not succeed. Such a scheme would be oddly incomplete.

All this, and still the most telling textual evidence is yet to come: The text of the subsection begins by announcing, “[n]o termination of parental rights may be ordered” unless the specified evidentiary showing is made. To repeat, a “termination of parental rights” includes “ any action resulting in the termination of the parent-child relationship,” 25 U. S. C. §1903(1)(ii) (emphasis added), including the relationship Birth Father, as an ICWA “parent,” has with Baby Girl. The majority’s reading disregards the Act’s sweeping definition of “termination of parental rights,” which is not limited to terminations of custodial relationships.

The entire foundation of the majority’s argument that subsection (f) does not apply is the lonely phrase “continued custody.” It simply cannot bear the interpretive weight the majority would place on it.

intent to give the term “custody” a narrow and exclusive definition throughout the statute.

The majority’s interpretation is unpersuasive even if one focuses exclusively on the phrase “continued custody” because, as Justice Scalia explains, ante, at 667, 186 L. Ed. 2d, at 751 (dissenting opinion), nothing about the adjective “continued” mandates the retrospective, rather than prospective, application of §1912(f)’s standard.

In keeping with §1903(1) and the structure and language of §1912 overall, the phrase “continued custody” is most sensibly read to refer generally to the continuation of the parent-child relationship that an ICWA “parent” has with or physical damage to the child.”

The majority overlooks Birth Father’s principal arguments when it dismisses his reading of §1912(f) as “nonsensical.” Ante, at 648, 186 L. Ed. 2d, at 740. He does argue that if one accepts petitioners’ view that it is impossible to make a determination of likely harm when a parent lacks custody, then the consequence would be that “‘[n]o termination of parental rights may be ordered.’” Brief for Respondent Birth Father 39 (quoting §1912(f)). But Birth Father’s primary arguments assume that it is indeed possible to make a determination of likely harm in the circumstances of this case, and that parental rights can be terminated if §1912(f) is met. See id., 328 U.S. at 40-42, 66 S. Ct. 889, 90 L. Ed. 1071.

The majority is willing to assume, for the sake of argument, that Birth Father is a “parent” within the meaning of ICWA. But the majority fails to account for all that follows from that assumption. The majority repeatedly Father from the benefits of his parental status. When one must disregard a statute’s use of terms that have been explicitly defined by Congress, that should be a signal that one is distorting, rather than faithfully reading, the law in question.

B

The majority also does not acknowledge the full implications of its assumption that there are some ICWA “parent[s]” to whom §§1912(d) and (f) do not apply. Its discussion focuses on Birth Father’s particular actions, but nothing in the majority’s reasoning limits its manufactured class of semiprotected ICWA parents to biological fathers who failed to support their child’s mother during pregnancy. Its logic would apply equally to noncustodial fathers who have actively participated in their child’s upbringing.

Consider an Indian father who, though he has never had custody of his biological child, visits her and pays all of his child support obligations. Suppose that, due to the majority’s view, notwithstanding the fact that this father would be a “parent” under ICWA, he would not receive the benefit of either §1912(d) or §1912(f). Presumably the court considering the adoption petition would have to apply some standard to determine whether termination of his parental rights was appropriate. But from whence would that standard come?

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 653, n. 8, 186 L. Ed. 2d, at 743. If there are any examples of women who go to the trouble and expense of artificial insemination and then carry the child to term, only to put the child up for adoption or be found so unfit as mothers that state authorities attempt an involuntary adoptive placement — thereby necessitating termination of the parental rights of the sperm donor father — the 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’s design.

With a few exceptions not relevant here, before a final decree of adoption may be entered, one of two things must happen: “The biological parents must either voluntarily relinquish their parental rights or have their rights involuntarily terminated.” 2 A. Haralambie, Handling Child Custody, Abuse and Adoption Cases §14.1, pp. 764-765 (3d ed. 2009) (footnote omitted).

Not from Adoption Law and Practice §2.10 (2012); Santosky, 455 U. S. at 767-768, 102 S. Ct. 1388, 71 L. Ed. 2d 599.

While some States might provide protections comparable to §1912(d)’s required remedial efforts and §1912(f)’s heightened standard for termination of parental rights, many will provide less. There is no reason to believe Congress wished to leave protection of all ICWA “parent[s’]” parent-child relationships.

II

The majority’s textually strained and illogical reading of the statute might be explicable, if not justified, if there were reason to believe that it avoided anomalous results or furthered a clear congressional policy. But neither of these conditions is present here.

A

With respect to §1912(d), the majority states that it would be “unusual” to apply a rehabilitation requirement where a natural parent has never had custody of his child. Ante, at 653, 186 L. Ed. 2d, at 743. The majority does not support this bare assertion, and in fact state child welfare authorities can and do provide reunification services for biological fathers who have not previously had custody of their children. And notwithstanding family to themselves undertake the mandated rehabilitative efforts. Rather, it requires the party seeking termination of parental rights to “satisfy the court that active efforts have been made” to provide appropriate remedial services.

See, e.g., Cal. Welf. & Inst. Code Ann. §361.5(a) (West Cum. Supp. 2013); Francisco G. v. Superior Court, 91 Cal. App. 4th 586, 596, 110 Cal. Rptr. 2d 679, 687 (2001) (stating that “the juvenile court ‘may’ order reunification services for a biological father if the court determines that the services will benefit the child”); In re T. B. W., 312 Ga. App. 733, 734-735, 719 S. E. 2d 589, 591 (2011) (describing reunification services provided to biological father beginning when “he had yet to establish his paternity” under state law, including efforts to facilitate visitation and involving father in family “‘team meetings’”); In re Guardianship of DMH, 161 N. J. 365, 390-394, 736 A. 2d 1261, 1275-1276 (1999) (discussing what constitutes “reasonable efforts” to reunify a noncustodial biological father with his children in accordance with New Jersey statutory requirements); In re Bernard T., 319 S. W. 3d 586, 600 (Tenn. 2010) (stating that “in appropriate circumstances, the Department [of Children’s Services] must make reasonable efforts to reunite a child with his or her biological parents or legal parents or even with the child’s putative biological father”).

In other words, the prospective adoptive couple have to make an evidentiary showing, not undertake person-to-person remedial outreach. The services themselves might be attempted by the Indian child’s tribe, a state agency, or a private adoption agency. Such remedial efforts are a familiar requirement of child welfare law, including federal child welfare policy. See 42 U. S. C. §671(a)(15)(B) (requiring States receiving federal funds for foster care and adoption assistance to make “reasonable efforts . . . to preserve and reunify families” prior to foster care placement or removal of a child from its home).

There is nothing “bizarre,” ante, at 653, 186 L. Ed. 2d, at 743, about placing on the party seeking to terminate a father’s parental rights the burden of showing that the step is necessary as well as justified. “For . . . natural parents, . . . the consequence of an erroneous termination [of parental rights] is the unnecessary destruction of their natural family.” Santosky, 455 U. S. at 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599. In any event, the question 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.

The majority’s concerns about what might happen if no state or tribal authority stepped in to provide remedial services are therefore irrelevant here. Ante, at 653, n. 9, 186 L. Ed. 2d, at 743. But as a general matter, if a parent has rights that are an obstacle to an adoption, the state- and federal-law safeguards of those rights must be honored, irrespective of prospective adoptive parents’ understandable and valid desire to see the adoption finalized. “We must remember that the purpose of an adoption is to provide a home for a child, not a child for a home.” In re Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190 (Heiple, J,. supplemental opinion supporting denial of rehearing).

[**2581] B

On a more general level, the majority intimates that ICWA grants Birth Father 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. And the law of a number of States still does so. child and that the father is withholding his consent to adoption contrary to the child’s best interests, but also that the father “has failed to perform parental duties under circumstances showing a substantial lack of regard for his parental obligations,” §26.33.120(2).

See Ariz. Rev. Stat. Ann. §8-106(A)(1)(c) (1974-1983 West Supp.) (consent of both natural parents necessary); Iowa Code §§600.3(2), 600A.2, 600A.8 (1977) (same); Ill. Comp. Stat., ch. 40, §1510 (West 1977) (same); Nev. Rev. Stat. §§127.040, 127.090 (1971) (same); R. I. Gen. Laws §§15-7-5, 15-7-7 (Bobbs-Merrill 1970) (same); Conn. Gen. Stat. §§45-61d, 45-61i(b)(2) (1979) (natural father’s consent required if paternity acknowledged or judicially established); Fla. Stat. §63.062 (1979) (same); Ore. Rev. Stat. §§109.092, 109.312 (1975) (same); S. D. Codified Laws §§25-6-1.1, 25-6-4 (Allen Smith 1976) (natural father’s consent required if mother identifies him or if paternity is judicially established); Ky. Rev. Stat. Ann. §§199.500, 199.607 (Bobbs-Merrill Cum. Supp. 1980) (same); Ala. Code §26-10-3 (Michie 1977) (natural father’s consent required when paternity judicially established); Minn. Stat. §§259.24(a), 259.26(3)(a), (e), (f), 259.261 (1978) (natural father’s consent required when identified on birth certificate, paternity 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 notice of intent to claim paternity within set time from notice of prospective adoption); Wash. Rev. Code §§26.33.040(5), 26.33.080 (1976) (natural father’s consent required if paternity acknowledged, judicially established, or he files notice of intent to claim paternity within set time from notice of prospective adoption); W. Va. Code Ann. §48-4-1 (Michie Cum. Supp. 1979) (natural father’s consent required if father admits paternity by any means). See also Del. Code Ann., Tit. 13, §908(2) (Michie Cum. Supp. 1980) (natural father’s consent required unless court finds that dispensing with consent requirement is in best interests of the child); Wyo. Stat. Ann. §§1-22-108, 1-22-109 (Michie 1988) (same).

See also, e.g., Nev. Rev. Stat. §§127.040(1)(a), 128.150 (2011).

(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, 590 N.Y.S.2d 60 (1992). Cf. Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816, 845, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977) (distinguishing a natural parent’s “liberty interest in family privacy,” which has its source “in intrinsic human rights,” with a foster parent’s parallel interest in his or her relationship with a child, which has its “origins in an arrangement in which the State has been a partner from the outset”). This preference is founded in the “presumption that fit parents act in the best interests of their children.” Troxel v. Granville, 530 U. S. 57, 68, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (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, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979)).

Balancing the legitimate interests of unwed biological fathers against the need for stability in a child’s family situation is difficult, to be sure, and States have, over the years, taken different approaches to the problem. Some States, to the constitutional baseline established by this Court’s precedents and do not require a biological father’s consent to adoption unless he has provided financial support during pregnancy. See Quilloin v. Walcott, 434 U. S. 246, 254-256, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Lehr, 463 U. S. at 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614. Other States, however, have decided to give the rights of biological fathers more robust protection and to afford them consent rights on the basis of their biological link to the child. At the time that ICWA was passed, as noted, over one-fourth of States did so. See supra, at 684, 186 L. Ed. 2d, at 761-762.

ICWA, on a straightforward reading of the statute, is consistent with the law of those States that protected, and protect, birth fathers’ rights more vigorously. This reading can hardly be said to generate an anomaly. ICWA, as all acknowledge, was “the product of rising concern the more robust state-law standards.

It bears emphasizing that the ICWA standard for termination of parental rights of which Birth Father claims the benefit is more protective than, but not out of step with, the clear and convincing standard generally applied in state courts when termination of parental rights is sought. Birth Father does not claim that he is entitled to custody of Baby Girl unless petitioners can satisfy the demanding standard of §1912(f). See Brief for Respondent Birth Father 40, n. 15. The 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 with the presumption that a natural parent will act in the best interests of his child. See supra, at 686, 186 L. Ed. 2d, at 762-763.

C

The majority also protests that a 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 671-679, 186 L. Ed. 2d, at 754-759; and, second, establishing placement preferences should an adoption take place, see §1915(a). ICWA does not interfere with the adoption of Indian children except to the extent that it attempts to avert the necessity of adoptive placement and makes adoptions of Indian children by non-Indian families less likely.

The majority may consider this scheme unwise. But no principle of construction licenses a court to interpret a statute with a view to averting the very consequences Congress expressly stated it was trying to bring about. Instead, it is the “‘judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question.’” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 298, 130 S. Ct. 1396, 176 L. Ed. 2d 225 (2010) (quoting United States v. Bornstein, 423 U. S. 303, 310, 96 S. Ct. 523, 46 L. Ed. 2d 514 (1976)).

The majority further claims that its reading is consistent with the “primary” purpose of the affected by the placement of Indian children in homes with no connection to the tribe, whether or not those children were initially in the custody of an Indian parent.

Birth Father is a registered member of the Cherokee Nation, a fact of which Birth Mother was aware at the time of her pregnancy and of which she informed her attorney. See 398 S. C. 625, 632-633, 731 S. E. 2d 550, 554 (2012).

Moreover, the majority’s focus on “intact” families, ante, at 649, 186 L. Ed. 2d, at 740, begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much. ICWA’s definitions of “parent” and “termination of parental rights” provided in §1903 sweep broadly. They should be honored.

D

The majority does not rely on the theory pressed by petitioners and the guardian that it finds the statute clear. Ante, at 656, 186 L. Ed. 2d, at 744. 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.

Justice Thomas concurs in the majority’s interpretation because, although he finds the statute susceptible of more than one plausible reading, he believes that the majority’s reading avoids “significant constitutional problems” concerning whether ICWA exceeds Congress’ authority under the Indian Commerce Clause. Ante, at 656, 657-666, 186 L. Ed. 2d, at 745, 746-751. No party advanced this argument, and it is inconsistent with this Court’s precedents holding that Congress has “broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as plenary and exclusive,” founded not only on the Indian Commerce Clause but also the Treaty Clause. United States v. Lara, 541 U. S. 193, 200-201, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004) (internal quotation marks omitted).

It is recognized Indian tribes, which are independent political entities. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 72, n. 32, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978). I am particularly averse to doing so when the Federal Government requires Indian tribes, as a prerequisite for official recognition, to make “descen[t] from a historical Indian tribe” a condition of membership. 25 CFR §83.7(e) (2012).

majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.

III

Because I would affirm the South Carolina Supreme Court on the ground that §1912 bars the termination of Birth Father’s parental rights, I would not reach the question of the applicability of the adoptive placement preferences of § 1915. I note, however, that the majority does not and cannot foreclose the possibility that on remand, Baby Girl’s paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl. If these parties do so, and if on remand Birth Father’s parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in §1915. The majority cannot rule prospectively that § 1915 would not apply to an adoption petition that has not yet been filed. Indeed, the statute applies “[i]n any adoptive placement of an Indian child under State law,” 25 U. S. C. §1915(a) (emphasis added), and contains no temporal qualifications. It would indeed be an odd result for this Court, in the name of the child’s best interests, cf. ante, at 654, 186 L. Ed. 2d, at 743, to purport to exclude from the proceedings possible custodians for Baby Girl, such as her paternal grandparents, who may have well-established relationships with her.

* * *

The majority opinion turns § 1912 upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress’ express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes’ relationships with the future citizens who are “vital to [their] continued existence and integrity.” § 1901(3).

The majority casts Birth Father as responsible for the painful circumstances in this case, suggesting that he intervened “at the eleventh hour to override the mother’s decision and the child’s best interests,” ante, at 656, 186 L. Ed. 2d, at 744. I have no wish to minimize the trauma of removing a 27-month-old child from her adoptive family. It bears remembering, however, that Birth Father took action to assert his parental rights when Baby Girl was four months old, as soon as he learned of the impending adoption. As the South Carolina Supreme Court recognized, “‘[h]ad the mandate of . . . ICWA been followed [in 2010], . . . much potential anguish might have been avoided[;] and in any case the law cannot be applied so as automatically to “reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.” ’” 398 S. C., at 652, 731 S. E. 2d, at 564 (quoting Holyfield, 490 U. S., at 53-54, 109 S. Ct. 1597, 104 L. Ed. 2d 29).

The majority’s hollow literalism distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a that the anguish this case has caused will only be compounded by today’s decision.

I believe that the South Carolina Supreme Court’s judgment was correct, and I would affirm it. I respectfully dissent.