In a split 5-4 opinion by Justice Alito, with a strong dissent from Justice Sotomayor, the Court limited ICWA, but did not eliminate it. The Court is unwilling to go so far as Justice Thomas would like, and find the statute unconstitutional. *12 (Thomas, J. concurring). Instead, the decision turns on dictionary definitions of “continued” *8, and “breakup” *12, finding that 1912(f) (involuntary termination) does not apply to the father, as he did not have physical custody of Baby Girl, nor legal custody under state law. *11. In addition, 1912(d) (active efforts) does not apply to Baby Girl’s adoption. *13. The Court reads the statute to apply to “intact” Indian families. *9. While not an endorsement of the judicially created existing Indian family exception, this opinion will not provide assistance in pushing back against it, at least in the context of non-custodial fathers. The decision is a set back, and a devastating blow to the family, but it’s also not the end of ICWA. Figuring out how the ultimate custody decision will turn out is difficult, not the least of which because under the Court’s own definition, there is NOW an “intact” Indian family.
The Court’s reading of 1912(a), the active efforts provision, is troubling. While quick to note that active efforts are a “sensible requirement when applied to state social workers,” *14 the Court finds it would be “unusual” to apply it to these facts. As anticipated, the Court’s concern for adoptive parents trumped that of the rights of children or biological parents. The question of how to apply 1912(a) comes up often in the context of guardianships and adoptions. This decision will make it harder to argue when states and agencies don’t want to apply 1912(a) to guardianships as well.
The placement preference provisions of 1915(a) for adoptions remains intact. A family within the preferences must “formally” seek to adopt the child for the preferences to be applicable. How this will apply in practice will depend on the court, I imagine. When does the adoptive family have to be known? How far in advance? Justice Sotomayor points out that if Baby Girl’s grandparents want to adopt her, under this decision the South Carolina court must consider them under the placement preferences. *25 (Sotomayor J. dissenting).
The Court remains suspicious of tribal citizenship, talking about remote ancestors *16 and listing Baby Girl’s blood quantum in the first sentence of the opinion. *1. The Court calls it the father’s “ICWA trump card.” *16. Finally, it is not often the unwarranted removal of Indian children from their families is called “mischief.” *9 (“mischief” that continues, see the disproportionality reports out recently).
In dissent, Justice Scalia writes that the opinion “needlessly demeans the rights of parenthood.” *1. Justice Sotomayor, however, writes explicitly that the Court’s decision is based on policy differences with Congress, *2, *8 (Sotomayor, dissenting). She also disagrees with the United States in its amicus brief, FN5, as part of her reading of the statute as a whole, rather than discrete parts. *3.
Her scathing footnote 8, which ends with her requesting examples of women who go through the trouble of giving birth via sperm donors giving the child up for adoption, injects the common sense anger and frustration this case has caused among those who have followed it closely. She addresses head on the Court’s references to blood quantum, wondering why it is needed if there are no constitutional concerns. *23-4. And finally, her, yes, empathetic paragraph of what can befall a family and that ICWA’s protections should apply to them provides a perspective missing from the majority opinion on down to many state courts. *23. ICWA does not only apply to the child removed improperly by the “culturally insensitive” social worker from an “intact” Indian family. It applies beyond that, to the families most in need of the law, ensuring the protection and health of the child, her contact with her family, her extended family, and her tribe. This narrow version of ICWA endorsed by the Court today, and evidenced regularly in family courts, does not help that child.