An important question we’ve been asked repeatedly — how does Adoptive Couple affect state laws codifying and supplementing the Indian Child Welfare Act?

State 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.

There 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.

We 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.