Footnote 9:

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

Footnote 8:

The majority attempts to minimize the consequences of its holding by asserting that the parent-child relationships of noncustodial fathers with visitation rights will be at stake in an ICWA proceeding in only “a relatively small class of cases.” Ante, at 13, n. 8. But it offers no support for this assertion, beyond speculating that there will not be many fathers affected by its interpretation of §1912(d) because it is qualified by an “abandon[ment]” limitation. Ibid. Tellingly, the majority has nothing to say about §1912(f), despite the fact that its interpretation of that provision is not limited in a similar way. In any event, this example by no means exhausts the class of semiprotected ICWA parents that the majority’s opinion creates. It also includes, for example, biological fathers who have not yet established a relationship with their child because the child’s mother never informed them of the pregnancy, see, e.g., In re Termination of Parental Rights of Biological Parents of Baby Boy W., 1999 OK 74, 988 P. 2d 1270, told them falsely that the pregnancy ended in miscarriage or termination, see, e.g., A Child’s Hope, LLC v. Doe, 178 N. C. App. 96, 630 S. E. 2d 673 (2006), or otherwise obstructed the father’s involvement in the child’s life, see, e.g., In re Baby Girl W., 728 S. W. 2d 545 (Mo. App. 1987) (birth mother moved and did not inform father of her whereabouts); In re Petition of Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994) (father paid pregnancy expenses until birth mother cut off contact with him and told him that their child had died shortly after birth). And it includes biological fathers who did not contribute to pregnancy expenses because they were unable to do so, whether because the father lacked sufficient means, the expenses were covered by a third party, or the birth mother did not pass on the relevant bills. See, e.g., In re Adoption of B. V., 2001 UT App 290, ¶¶ 24-31, 33 P. 3d 1083, 1087-1088.

The majority expresses the concern that my reading of the statute would produce “far-reaching consequences,” because “even a sperm donor” would be entitled to ICWA’s protections. Ante, at 13-14, n. 8. If there are any examples of women who go to the trouble and expense of artificial insemination and then carry the child to term, only to put the child up for adoption or be found so unfit as mothers that state authorities attempt an involuntary adoptive placement–thereby necessitating termination of the parental rights of the sperm donor father–the 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.

Footnote 7:

The majority overlooks Birth Father’s principal arguments when it dismisses his reading of §1912(f) as “nonsensical.” Ante, at 8. He does argue that if one accepts petitioners' view that it is impossible to make a determination of likely harm when a parent lacks custody, then the consequence would be that “ ‘[n]o termination of parental rights may be ordered.’ ” Brief for Respondent Birth Father 39 (quoting §1912(f)). But Birth Father’s primary arguments assume that it is indeed possible to make a determination of likely harm in the circumstances of this case, and that parental rights can be terminated if §1912(f) is met. See id., at 40-42.

Footnote 6:

The majority’s interpretation is unpersuasive even if one focuses exclusively on the phrase “continued custody” because, as Justice Scalia explains, ante, at 1 (dissenting opinion), nothing about the adjective “continued” mandates the retrospective, rather than prospective, application of §1912(f)’s standard.

Footnote 5:

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

Footnote 4:

The full text of subsection (e) is as follows: “No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing 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).

Footnote 3:

The majority’s discussion of §1912(d) repeatedly references Birth Father’s purported “abandon[ment]” of Baby Girl, ante, at 12, 13, n. 8, 14, and it contends that its holding with regard to this provision is limited to such circumstances, see ante, at 13, n. 8; see also ante, at 1 (Breyer, J., concurring). While I would welcome any limitations on the majority’s holding given that it is contrary to the language and purpose of the statute, the majority never explains either the textual basis or the precise scope of its “abandon[ment]” limitation. I expect that the majority’s inexact use of the term “abandon[ment]” will sow confusion, because it is a commonly used term of art in state family law that does not have a uniform meaning from State to State. See generally 1 J. Hollinger, Adoption Law and Practice §4.04[1][a][ii] (2012) (discussing various state-law standards for establishing parental abandonment of
a child).

Footnote 2:

Petitioners concede that, assuming Birth Father is a “parent” under ICWA, the notice and counsel provisions of 25 U. S. C. §§1912(a) and (b) apply to him. See Tr. of Oral Arg. 13.

Footnote 1:

For this reason, the South Carolina Supreme Court held that Birth Father did not give valid consent to Baby Girl’s adoption when, four months after her birth, he signed papers stating that he accepted service and was not contesting the adoption. See 398 S. C. 625, 645-646, 731 S. E. 2d 550, 561 (2012). See also ante, at 5. Petitioners do not challenge this aspect of the South Carolina court’s holding.

ante, at 5:

Neither adjudicated father’s signature on the “acceptance of service” document he received that accompanied prospective adoptive parents' petition seeking to adopt child, nor father’s stated intentions to relinquish his parental rights to child were effective forms of voluntary consent to the relinquishment of his parental rights under the Indian Child Welfare Act (ICWA); prospective adoptive parents failed to follow the clear procedural directives of the ICWA in obtaining father’s consent, and even if father had validly consented to relinquishment of his parental
rights under the ICWA, his subsequent legal campaign to obtain custody of child rendered any such consent withdrawn, as permitted under the ICWA. Indian Child Welfare Act of 1978, §103(a, c)

Uh…not really

Michael Sheehan, the assistant secretary of defense for special operations and low-intensity conflict, said just this past May that the War on Terror would last another 10-20 years

This statement was made at the May 2013 Senate Armed Services Committee hearing regarding the 2001 AUMF. In reply, committee member Sen. Angus King said this:

Gentlemen, I’ve only been here five months, but this is the most astounding and most astoundingly disturbing hearing that I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution here today…you’re reading this AUMF in such a way as to apply clearly outside of what it says…I don’t disagree that we need to fight terrorism. But we need to do it in a constitutionally sound way.

There is no reason to believe the U.S. is shifting away from a perpetual war footing, based on the actions and words of most of the Obama administration. He, of course, has continued to talk about “shifting away from perpetual war”. Hmm..