(with Colette Routel)
and New Mexico
(with Marcia Zug and Mary Jo Hunter)
What does this mean for the Future of Native America and the ICWA?
important question we've been asked repeatedly -- how does Adoptive Couple
affect state laws codifying and supplementing the Indian Child Welfare Act?
ICWA laws remain intact. This was not a decision on the constitutionality of
ICWA, but rather an interpretation of ICWA's wording. This Supreme Court defers
to state law when possible. While state courts may interpret the language the
same way, if it's the same language (which it is in Michigan, for example), it's
not bound to. For example, the legislative history of a state law passed in 2012
is very different than that of the federal law passed in 1978. There may be
different policy goals, or other parts of the statute are different enough to
indicate a broader, and higher, standard. In addition, state statutes of general
applicability, such as those addressing the rights of biological fathers to
their children still apply. In some ways this ends up like the marriage equality
decisions--where a person lives may determine their rights.
is going to be more pressure on tribes to have an adoptive placement available
for a child earlier. This decision may give state DHS officials the incorrect
belief that they do not have to find a proper placement for the child under the
law, but that rather a family must make some sort of "formal" application. What
is a formal application will also likely be determined by state law, given the
Court gave no indication what it meant by that in the opinion. The Court seemed
to be making a distinction between a tribal official testifying that there are
adoptive families available and an adoptive family being vetting through (in
this case) a state court.
are also curious to find out how will this apply in conjunction with the state
removing children at birth from mothers for various reasons--previous
terminations, testing positive. How long must a parent have a child for it to be
considered "continued" custody? When does legal custody attach? Again, this is
likely determined through state law.
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