Last week, the Supreme Court ruled 7–2 against challenges to the Indian Child Welfare Act on the basis of racial discrimination.
The act was passed in 1978 following the large-scale removal of Native children and relocation to non-Native, white families and boarding schools. Its intent is to keep fostered or adopted Native children within tribal culture by establishing an order of preference for custody.
Priority is given to the child’s extended family, followed by other members from the same tribe, and then members of another tribe. Only once those are exhausted are non-Native families eligible.
This process was challenged by non-Native adoptive families of Native children. Those families called ICWA unconstitutional and that it was racial discrimination.
Olga Symeonoglou, an attorney at Cultural Heritage Partners, said she believes that SCOTUS’ ruling to reinforce ICWA comes at an important moment for both Virginia and the nation, “Because our country, for the first time, is beginning to reckon with the federal policy of forced cultural assimilation of Indian children.”
Seven of Virginia’s 11 state-recognized tribes are also federally recognized, making them subject to ICWA. The Pamunkey, Chickahominy, Eastern Chickahominy, Rappahannock, Upper Mattaponi, Monacan and Nansemond Indian nations were each federally recognized within the last decade.
Symeonoglou said overturning or striking down ICWA would pose a threat to those groups’ tribal sovereignty.
“Attempts to weaken it at that moment — when the Virginia tribes have so recently obtained federal recognition “and are in the process of building out their governments and interacting with the state and federal agencies in a government-to-government relationship — would have been very harmful,” she said.
Within the state, Virginia has some adjustments to make. Tribes that are recognized by the state (through the secretary of the commonwealth’s advisory board), but not by the U.S. Department of the Interior’s Bureau of Indian Affairs, must work near-exclusively with local departments of social services instead.
“Usually … the goal is reunification of the family,” Symeonoglou said. “ICWA requires the state to engage in what's called ‘active efforts’ to reunify the family, which is a higher burden than what's normally required in Virginia, which is ‘reasonable efforts.’”
A September 2022 report from the Virginia Department of Social Services goes further into what that means: Active efforts provide both “remedial and rehabilitative services” to the family prior to the removal of a Native child from their parents or custodians, as well as an “intensive effort” to reunify Native families. As of April 25, the Supreme Court of Virginia has seen three cases on ICWA since 1996.
For Symeonoglou, who counsels American Indian tribes on protecting their cultural and historic resources, the Supreme Court’s ruling sends an important message.
“Congress decided that the survival of tribes and their ability to transmit their culture to their children was really important. And it's part of the reason they gave tribes separate rights under ICWA,” Symeonoglou said. “So, it's beyond just the importance of keeping the family together, it extends to the tribe as a whole, and that tribe’s ability to transmit its culture to future generations.”
Associate Justice Amy Coney Barrett authored the Supreme Court's majority opinion. Associate Justice Neil Gorsuch wrote in his concurring opinion that by adopting ICWA, Congress “exercised that 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.”
Associate Justices Samuel Alito and Clarence Thomas dissented.
