The Indian Child Welfare Act is a cornerstone of Virginia tribal sovereignty

After SCOTUS upheld the landmark Indian child welfare law, Virginia tribes seek further protections of their rights

July 12, 2023 12:09 am

Mattaponi Indian Tribe Chief Mark Custalow plays a drum and sings in a garden at the Executive Mansion during the annual tax tribute ceremony in November 2018. (Ned Oliver/Virginia Mercury)

The Supreme Court of the United States last month upheld the Indian Child Welfare Act (ICWA), a federal law designed to protect Native American children and keep them connected to their heritage. Four Virginia Indian tribes that signed on to a brief supporting the ICWA in the face of a challenge to its constitutionality say it is still a vital tool for the preservation of their communities and culture and is a cornerstone of tribal sovereignty in the state. 

Four of Virginia’s seven federally recognized Indian tribes — the Monacan Indian Nation, the Pamunkey Indian Tribe, the Rappahannock Tribe and the Upper Mattaponi Indian Tribe — signed the amicus brief supporting the ICWA in the 2022 Haaland v. Brackeen lawsuit.

The case emanated from a white couple in Texas who argued that the law — which says that if Native American children need to be adopted or placed in foster care, every effort must be made for them to remain in the care of their extended family or tribal community — was racially discriminatory and overrode state laws governing child welfare. On June 15, 2023, in a 7-2 decision, the justices overturned a Texas federal court’s decision that the ICWA was unconstitutional and cemented the law as a bedrock protection for some of the nation’s most vulnerable children. 

The ruling was a critical recognition of the tribes’ right to decide what is in the best interest of their children, said Chief Robert Gray of the Pamunkey Tribe.

“We signed onto the brief because we believe the issue is important to tribal identity and respect for our culture and our sovereignty,” said Gray. The Supreme Court’s decision “affirmed our belief. We would say we see our sovereignty and tribal status as the chief issue. It’s not a racial issue, it’s a tribal issue.”

Pamunkey Indian Tribe Chief Robert Gray presented Gov. Ralph Northam with a deer and pottery at the 341st tax tribute ceremony, during which the Pamunkey and Mattaponi present game hunted on their land in lieu of tax payments under the terms of a treaty signed in 1677. (The Virginia Mercury)

The Pamunkey was the first of Virginia’s Indian tribes to gain federal recognition, in 2015. This status grants tribes full control over legal affairs and governance within their communities and mandates that federal agencies consult them about regulatory policies that might impact them. But while that consultation is mandatory at the federal level, Virginia has lagged in granting Native Americans full sovereignty: Current state law does not require Virginia agencies to consult with any of the tribes on projects and development plans that might affect them. 

Legislation to institute that consultation right has been introduced twice, in 2022 and 2023. But it has died both times in the House of Delegates.

It takes an unimaginable amount of gall to invade people’s homeland, take control and nearly eradicate them in body and spirit and then, several centuries later, say — as Del. Lee Ware, R- Powhatan, did during the 2022 session — you’re not “comfortable yet” with passing laws to give them a say in protecting what few lands and rights they have managed to claw back.

The tenuous nature of Virginia Indians’ tribal sovereignty is part of what makes the ICWA’s protections for Indian children so consequential, said Gray.

“These children are citizens of the tribe; it’s a sovereignty issue,” he said. “I would liken it to, if there’s a French citizen in the U.S. that was being put up for adoption, the country of France would have a say in that adoption. You can kind of see how it works with adoptions from Russia, Romania and other countries; those governments have a say in those adoptions. Indian nations are looking for that same respect.”

The Pamunkey, Virginia tribes and other Indian nations have earned that respect a thousand times over. It takes just a quick survey of Virginia’s and America’s early history to see why the ICWA was desperately needed and remains important. 

The European settlers who came to Virginia’s shores often harmed the health and culture of the Indian communities they encountered, bringing disease and dis-ease wherever they ventured. Colonists reneged on treaties with the tribes, leading to the loss of most of their ancestral homelands and even their languages and instigating centuries of bitter, violent relations in the fledgling state. 

Then came other government-born horrors far and near: Thousands of tribal members were  forcibly relocated west through the Trail of Tears. Educational institutions designed programs to strip Native American children of their heritage and assimilate them into Western society and ideologies; they include one founded in 1878 at Hampton University to “christianize and civilize” American Indians, which is particularly disappointing coming from a college created by and for marginalized Black Americans. Eugenicist Walter Plecker, as head of Virginia’s Bureau of Vital Statistics, physically erased the heritage of countless tribal members on official birth and death certificates, which made it difficult for tribes in the commonwealth to prove their identities and gain federal recognition. Our vital records office is still untangling some of the mess Plecker made of Virginia Indians’ ethnic and cultural heritage. 

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The Virginia Department of Social Services is responsible for making sure the Indian Child Welfare Act is enforced in the state. The agency performs a bimonthly search of its child welfare information system, known as OASIS, for children identified as American Indian and/or Alaskan Native. If any children are identified, the agency works with the local social services department where the child lives to find nearby federally recognized Indian tribes and ensures they are aware of the child’s foster or adoption needs and can give input and guidance.

 “VDSS also serves as liaison for Virginia’s seven federally recognized tribes for any issues or concerns regarding a child welfare case involving their tribal citizens,” agency spokesman Will Hockaday said via email. 

It appears that the ICWA is functioning as intended in Virginia, thankfully. Just one Native American child was placed for adoption or foster care outside their tribal community in 2022, according to Hockaday, and the process was approved by a tribe in the area. Gray also says the Pamunkey have only been involved with one ICWA case recently, and it was resolved satisfactorily. 

The larger struggle for the full benefits of tribal sovereignty, however, continues.

“We’re constantly under attack; there are constant little things that are always threatening bits and pieces of our sovereignty,” said Gray. “We are always on the lookout, and we will always remain vigilant.”

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Samantha Willis
Samantha Willis

Samantha Willis, a writer and journalist whose experience in digital, print and broadcast media spans 12 years, is Commentary and Deputy Editor at the Virginia Mercury. Her work has appeared in leading publications including Glamour Magazine, Essence Magazine, Scalawag Magazine, and the Columbia Journalism Review, and within a wide range of Virginia-based media.