In Honor of Native American Heritage Month, Let's Discuss the Indian Child Welfare Act
In a major decision reaffirming Native American rights and the scope of federal authority, the U.S. Supreme Court voted 7–2 to uphold the Indian Child Welfare Act (ICWA), in 2023. ICWA is a 45-year-old law designed to protect Native children and preserve tribal integrity.
The ruling represents a decisive victory for tribal sovereignty and for Native families who have long fought to prevent the forced removal of Native children from their homes and communities.
The Case and the Challenge
The ICWA, enacted in 1978, was a direct response to a devastating history: between the 1950s and 1970s, more than one-third of Native children were taken from their families and often placed in non-Native foster homes or institutions with no tribal ties. This led to Native children being stripped of their languages, cultures, and tribal identities.
To prevent those injustices from continuing, Congress created specific placement preferences for Native children entering the foster care or adoption system:
First, placement with extended family;
If not available, with other members of the child’s tribe;
If still unavailable, with members of another tribe.
Those provisions were challenged by the state of Texas and several non-Native adoptive parents, who argued that ICWA overstepped federal authority and imposed unconstitutional racial preferences.
The Supreme Court’s Decision
Writing for the majority, Justice Amy Coney Barrett rejected those arguments, affirming Congress’s long-established authority to legislate in matters involving Indian affairs.
“The Constitution does not erect a firewall around family law,” Barrett wrote. “On the contrary, we have not hesitated to find conflicting state family law pre-empted by federal law.”
The Court found that ICWA does not improperly intrude on state power but instead reflects Congress’s unique constitutional responsibility toward federally recognized tribes.
Justices Clarence Thomas and Samuel Alito dissented, with Thomas reiterating his narrow interpretation of federal power over tribal affairs and Alito arguing that ICWA could at times “sacrifice the best interests of vulnerable children.”
What the Court Didn’t Decide
One issue remains unresolved: whether ICWA’s placement preferences for Native families constitute an unconstitutional racial classification. The Court determined that the non-Native adoptive parents in this case lacked legal standing to bring that claim, leaving the question open for potential future litigation.
Justice Brett Kavanaugh, who joined the majority, noted in a separate opinion that the equal protection question remains “serious.” However, legal experts say it may be difficult to find a future case that reaches the Court, given how rarely adoption placement disputes are appealed.
A Broader Context: Protecting Tribal Sovereignty
Justice Neil Gorsuch, long recognized as a strong advocate for Native rights, issued a powerful concurring opinion, situating the decision within a painful historical context.
He wrote that the mass removal of Native children in the mid-20th century was part of a much older pattern of forced assimilation that posed “an existential threat to the continued vitality of the tribes.”
“In adopting the Indian Child Welfare Act,” Gorsuch wrote, “Congress exercised its lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”
Why the Decision Matters
The Supreme Court’s ruling in Haaland v. Brackeen (2023) preserves one of the most significant federal protections for Native families and reinforces the principle that tribal sovereignty remains a core part of U.S. constitutional law.
While the decision directly affects Native communities, its reasoning extends more broadly, affirming the federal government’s ability to protect historically marginalized groups and setting limits on state interference in those protections.
What This Decision Means for Georgia Families
While the Indian Child Welfare Act is a federal law that applies nationwide, the Supreme Court’s decision has important implications for Georgia families, particularly in adoption or custody cases involving Native American children. Georgia courts, like all state courts, are bound to follow ICWA’s placement preferences and procedural safeguards when such cases arise.
For Georgia families, this means:
Greater scrutiny in adoptions involving Native heritage - If a child has tribal ancestry (family with tribal membership), the court must notify the child’s tribe and follow ICWA’s placement hierarchy before finalizing an adoption or foster placement.
Coordination between state agencies and tribes - Georgia’s Division of Family & Children Services (DFCS) and state courts must continue to work closely with tribal authorities when a Native child is involved.
Heightened respect for cultural and familial continuity - ICWA’s purpose is to preserve the child’s connection to their extended family and cultural identity, which remains a guiding legal principle in Georgia courts.
At Resurgens Legal Counsel, LLC, we monitor developments in family law at both the state and federal levels to ensure our clients understand how national rulings may affect their cases. Whether you are pursuing adoption, facing a custody dispute, or dealing with complex jurisdictional issues, our team is here to help you navigate every step with clarity and compassion, contact us to discuss your options.