On June 25, 2013, the United States Supreme Court handed down its ruling in Adoptive Couple v. Baby Girl. The decision was highly anticipated in Indian Country because of its potential impact on the Indian Child Welfare Act (ICWA) and broader questions about the extent of Congress’ power to pass laws that single out Indians for special treatment. Tuesday’s opinion, however, avoided any sweeping rulings on the constitutionality of the ICWA, leaving the statute largely intact but narrowing somewhat the applicability of two of its parental rights protections on the basis of their statutory language. The Court also did not rule directly on the fate of the child in the case, which will be determined by the South Carolina courts on remand. Justice Alito wrote the majority opinion for the Court and was joined by Chief Justice Roberts and Justice Kennedy, as well as Justice Thomas and Justice Breyer who each also filed separate concurring opinions. Justice Sotomayor wrote a dissenting opinion and was joined by Justices Ginsberg, Kagan, and Scalia, though Justice Scalia also wrote a separate dissenting opinion.
The majority overturned a ruling of the South Carolina Supreme Court, which had held that two provisions of the ICWA blocked the termination of the Birth Father’s parental rights and therefore precluded the child’s adoption by the Adoptive Couple. Those provisions were: Section 1912(f), which requires a showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child; and Section 1912(d), which requires a showing that remedial efforts have been made to prevent the “breakup of the Indian family. ” Because it was uncontested that the child was an “Indian child” under the ICWA and that the Birth Father was her biological parent, the South Carolina Supreme Court held that the Birth Father’s parental rights could not be terminated unless Sections 1912(f) and 1912(d) were satisfied, which they had not been. In reversing the South Carolina decision, a majority of the Supreme Court Justices held that those two provisions did not in fact apply to the Birth Father in this case because he had never had custody of, or indeed any relationship with, Baby Girl at the time the adoption proceeding was initiated. The majority looked to dictionary definitions of the words “continued” and “breakup” as used in Sections 1912(f) and 1912(d) and found that under the facts of this case the provisions could not apply since, in their view, custody could not be “continued” and no “Indian family” existed, so no “breakup of the Indian family” could occur.
The dissenting opinions by Justice Scalia and Justice Sotomayor disagreed with the majority’s narrow interpretation of those terms, arguing that “continued” could refer to continuation of custody into the future as well as the past, and “breakup” could refer to the termination of any parent-child relationship, including one based only on a biological link. Justice Sotomayor criticized the majority opinion for ignoring the overall purpose of the ICWA and argued that, if the Birth Father is to be considered a “parent” under the statute, it is illogical to hold that the statute’s protections for parental rights nevertheless do not apply to him. Justice Scalia’s separate dissent emphasized the right of biological parents to raise their children absent evidence that they are unfit parents.
What is perhaps most significant about the case is what the Court decided not to address. First, though the dissent argued that the majority’s logic could apply to any noncustodial parent of an Indian child, it is not clear that the holding stretches that far. Justice Breyer, who provided the critical fifth vote to the majority, stressed in his concurring opinion that the decision is limited to the facts of the case, and that the outcome might be different with regard to a noncustodial parent who had exercised visitation rights or paid child support, for example. Justice Breyer also stated that other provisions of the ICWA, such as the placement preferences for adoptions of Indian children, could still be relevant in future cases like this one. Second, though the Adoptive Couple had argued that the Birth Father should not be considered a “parent” under the ICWA at all because state law did not require his consent for the adoption, the majority chose not to address that question and assumed without deciding that the Birth Father met the statutory definition of “parent.” That choice is significant because a negative decision on the scope of the term “parent” could potentially have affected the applicability of a much broader range of ICWA protections, rather than just two specific provisions, to noncustodial parents of Indian children. For these reasons, it is hoped that the majority’s interpretation of the ICWA in this case will impact only a very small number of cases overall.
Last, and perhaps most significant of the undecided issues, the Court declined to address arguments raised by the Adoptive Couple and state-appointed Guardian ad Litem in the case that the ICWA as applied by the South Carolina courts violated the Equal Protection Clause of the Constitution. It was unnecessary for the majority to reach those arguments because they held that, based on the statute’s language, the provisions at issue did not apply in any event. Justice Alito’s majority opinion did note that a contrary interpretation “would raise equal protection concerns,” a suggestion that Justice Sotomayor’s dissent criticized as contrary to the Court’s precedent and unnecessary to the majority’s analysis. That language in the majority opinion may signal that equal protection arguments could crop up again in a future Indian law case, but the fact that the majority chose not to rely on them in this case may be considered a victory in the face of a serious attempt to have the ICWA struck down as unconstitutional. Further, no other Justice joined Justice Thomas in his opinion questioning Congress’s authority under the Indian Commerce Clause to regulate child custody proceedings under the ICWA at all because the ICWA does not relate to commerce and, in part, relates to individual Indians rather than tribes.
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