justice sonia sotomayor, author of dissenting opinion
justice scalia
justice antonin scalia issued short dissenting opinion. scalia noted that, while joined sotomayor’s dissent, disagreed suggestion here “literalness may strangle meaning”. goes on opine phrase continued custody refer custody in future – in other words, if biological father had no custody of child in past, have in future, , therefore usc §1912(f) still apply. scalia noted biological parents had legal rights , there no reason in law or policy dilute rights.
justice sotomayor
justice sonia sotomayor, joined justices ruth bader ginsburg, elena kagan, and, in part, scalia, dissented majority opinion. noting majority seemed consider indian placement preference “unwise”, wrote did not license court “to interpret statute view averting consequences congress expressly stated trying bring about.”
sotomayor reasoned majority ignored icwa’s logical structure , adopted “textually backward reading” starting analysis final clause of §1912(f). sotomayor stated continued custody in § 1912(f) sensibly read refer continuation of parent-child relationship icwa parent has or child. stated non-custodial father-child relationship family purposes of § 1912(d) , therefore efforts needed made prevent breakup. stated majority turned law upside down reach result. rather granting indian birth fathers “undeserved windfall”, sotomayor reasoned congress had provided rights birth fathers enjoyed in several states. instead deferring each state’s laws, sotomayor thinks majority read icwa “an illogical piecemeal scheme”.
responding majority’s suggestion reading avoids “equal protection concerns”, sotomayor noted court’s precedents have long held indian tribal membership not impermissible racial classification. goes on criticize “majority’s repeated, analytically unnecessary references” makeup of baby girl’s ancestry. finally, sotomayor stated majority ignored primary purpose of icwa in interpretation of § 1915(a), , noted there nothing prevent grandparents filing petition adopt child. noted nothing in opinion mandated return of child capobiancos.
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