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.

Instead, the decision turns on dictionary definitions of “continued” and “breakup” , 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.

In addition, 1912(d) (active efforts) does not apply to Baby Girl’s adoption. The Court reads the statute to apply to “intact” Indian families. 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.