Dissent Episode Three: How an Adoption Case Could Unravel Tribal Sovereignty

Host Jordan Smith and journalist Rebecca Nagle discuss the Indian Child Welfare Act challenge and why it could imperil all of Indian Law.

Demonstrators stand outside of the Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Washington, D.C., Nov. 9, 2022.
Demonstrators stand outside of the Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Washington, D.C., Nov. 9, 2022. Photo: Mariam Zuhaib/AP

The Supreme Court is hearing a case that could dismantle the Indian Child Welfare Act, also known as ICWA. The law was passed in 1978 to combat a history of forced family separation in the United States and prevent the removal of Native children from their communities. But now, in Haaland v. Brackeen, ICWA could be completely overturned. In the third episode of Dissent, host Jordan Smith is joined by Rebecca Nagle, a journalist, citizen of the Cherokee Nation, and host of the podcast “This Land.” Smith and Nagle break down the case and its broad implications for laws based on tribes’ political relationship with the U.S. government.


[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

[Low, contemplative music.]

JS: During the middle of the last century, the U.S. government introduced the Indian Adoption Project. Through this project, Native children were taken from their families and communities and raised by white, non-Native families. 

A 1966 press release from the Bureau of Indian Affairs reads

“One little, two little, three little Indians — and 206 more — are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.

A total of 209 Indian children have been adopted during the past seven years through the Indian Adoption Project …”

Mind you, even before this, Native children were removed from their homes and put into boarding schools. Facing harsh conditions and abuse, Native children were forbidden from speaking their language and practicing their religion. Families who didn’t comply could be imprisoned. Whether it’s 1871, or 1958, the U.S. government has a long history of undermining treaties it has signed with tribal nations and passing laws that eliminate tribal autonomy. They viewed tribes as quote-unquote “uncivilized,” and that they had to assimilate into quote-unquote “American society.” 

By 1978, around one-third of all Native children had been removed from their families and communities. So that year, Congress passed the Indian Child Welfare Act, in an effort to stop Native children from being taken from their communities. The Indian Child Welfare Act, also known as ICWA, established protections for Native children and their communities. 

But now, the Supreme Court case Haaland v. Brackeen is putting it all on the line.

Chad Brackeen: So four years ago, we felt a very profound calling from God leading us to become foster parents and serve children that needed a safe home.

JS: That’s Chad Brackeen. The Brackeens are a white family from Texas, who are asking the Supreme Court to overturn ICWA. They had fostered a Native child and wanted to adopt him. But because of ICWA, and that long history of separating families, Native family members had priority for custody of the child.

CB: But we pursued adoption anyway because we felt like that was the right thing to do. Unfortunately, even with the support of his biological family, many other people that were involved with the case, the judge said, because of ICWA, he had to deny our adoption.

JS: They fought the case. And actually — this is wild — before taking the case to the Supreme Court, they won their adoption case in Texas. But they’re still charging forward to overturn ICWA.

CB: Not all cases end the ways ours did. In fact, we hear stories of other people in the same situations across the country. Like there’s two other families in the state that are going through the same pains and struggles that we are, and fear for their children. We did that so that we can advocate that their best interests, the interests of the child, is what is considered in these adoptive placements, not their race.

JS: Oof. 

The implications of this case are huge. Overturning ICWA could open the door to further threats to tribal autonomy. There is a lot to unpack here, so I sat down with Rebecca Nagle. She’s a journalist, citizen of the Cherokee Nation, and host of This Land podcast

The second season of her podcast goes into great detail about how this seemingly simple adoption case is actually an attempt to dismantle tribal sovereignty. 

Rebecca, welcome to Dissent.

Rebecca Nagle: Thank you so much for having me.

JS: So you’ve done such extensive and amazing reporting on the case before the Supreme Court that we’re going to talk about today, which is Haaland v. Brackeen. So to start, would you lay out just the basics of the case for us? 

RN: Yeah, absolutely.

So a group of foster parents in the state of Texas are suing the federal government to strike down a law called the Indian Child Welfare Act that was created to prevent family separation in Native communities. The plaintiffs contend that the law unconstitutionally discriminated against them, which is an extraordinary claim, given what actually happened in the custody cases, which I’m sure we’ll get into. And Texas is basically making a states’ rights argument. Native advocates, tribes that intervened in the case, and a lot of court watchers warned that the case is about far more than this law or Native children and that it’s actually about a far broader attack on tribal sovereignty and Indigenous nations within the U.S. 

JS: Before we get too into the weeds with what happened at Court, I want to talk a little bit more about the Indian Child Welfare Act, or ICWA. Can you tell us a little bit more about what ICWA is and a lot about what prompted Congress to pass it in 1978?

RN: Yeah, absolutely. And so when Congress passed ICWA, in 1978, it was after there had been this big national survey that found that 25 to 35% of all Native children had been taken out of their homes and away from their tribes. 

And a couple of things were going on: There was a federal program, where the Bureau of Indian Affairs literally gave the Child Welfare League of America money to take Native kids and put them in white homes with the very racist thinking that they were better off there. And the other thing that was happening at the time, in far greater numbers, was that Native children were being removed by social workers and child welfare agencies — and oftentimes not for reasons like abuse, but for reasons like poverty, or a child was being raised by their grandparents instead of by their biological parent. 

And so what ICWA does, is actually a lot of different things. At different steps in the process of a child going through either private adoption, or, more commonly, through foster care, [it] puts guardrails on the process to make it harder to separate Native children from their families and tribes. And so some examples of what that looks like: States are required to have active efforts to reunify children with their parents, not just reasonable efforts, which is the standard for everybody else; tribes can intervene in cases, or if the kid lives on tribal land, the case just goes to tribal court; and if children can’t be reunified with their parents, ICWA sets out placement preferences of where they should go next, prioritizing family members and other members of that child’s tribe. 

So yeah, it’s a really complex law that does a lot of different things in these lawsuits — one or two aspects of the law can kind of become a focal point — but the main thing it does is just make it harder, not impossible, but harder to separate Native children from their families.

JS: Yeah, I was actually going to ask you to kind of lay out the list of placement preferences, because the third preference comes up a lot in the argument. 

RN: Right. Yes. [Laughs.]

JS: And we’ll get into that specifically in a bit. But I think for people to understand that, we’re going to need a bit more background about what those placement preferences are, including that one.

RN: Yeah, absolutely. So if a child cannot be what in social work, or child welfare proceedings, is called reunified with their biological parents. The placement preferences set out where they should go to next and so the first placement preference is a member of their extended family. And, actually, because a lot of Native folks are mixed, that extended family member could be Native or non-Native — as long as they’re related to the child, they’re prioritized equally. The second placement preference is another citizen of that child’s federally recognized tribe. And then the third placement preference is another citizen of a federally recognized tribe. And it doesn’t have to be that child’s tribe. 

And I’m sure we’ll get into it, but that was the placement preference that upset some of the Supreme Court justices. What’s interesting is that it’s a facial challenge to a law, and so usually you’re looking for being able to at least point to a situation where that has happened. [Laughs.] And the plaintiffs in Texas could not. And so it was talked about a lot in arguments, although it didn’t happen in any of the underlying custody cases, and they couldn’t bring forward an example where it had happened in any custody case.

JS: Right, right. We will talk about that a little bit more here in a minute. 

So there are several threads being pulled seemingly kind of all at once in the oral argument, but the common theme or a key to understanding what’s up, I think, is kind of understanding the relationship between the federal government and the various federally recognized tribes and Congress’s plenary power as it relates to those tribes. 

Can you explain that piece of it?

RN: Yeah, absolutely.

So tribes have a unique political relationship with the U.S. federal government that has been recognized literally since the founding of the Republic. [Laughs.] And so, there are a lot of laws within the United States that treat tribes and tribal citizens differently than other people in the United States. And it’s called a lot of different things: People call it a treaty relationship; people also call it a trust relationship. But the difference in how Indigenous folks in our nations are treated, doesn’t stem from a racial category, it stems from a political category under the law and that category is established by lots of different parts of the Constitution, but I think mostly the Treaty Clause. 

And so the U.S. has signed treaties with Indigenous nations through the same constitutional process that it has signed treaties with other foreign powers. And so a lot of times in those treaties in exchange for land, the U.S. federal government offered or guaranteed certain kinds of protections. And so from that, Congress has a unique authority in the arena of federal Indian law. And that authority has been established actually by the Supreme Court, but also recognized now for well over a century. 

And so it’s kind of late in the U.S. history to come back and say: Oh, we can’t treat Native people differently. That’s racial discrimination. And also, Congress doesn’t have power to legislate in this area of the law, when we’ve been allowing Congress to do that for a very long time. 

And so I think that it can be kind of confusing to folks because it is a really different area of law. But you know, one way I put it is, just like certain laws apply to me, because I’m a citizen of the United States or because I’m a resident of Oklahoma, certain laws apply to me because I’m a citizen of Cherokee Nation. 

And that is absolutely how ICWA works. The law, first of all, only applies to children who are either enrolled in a federally recognized tribe or eligible for enrollment. And as I already discussed, that’s how the placement preferences flow, too; so somebody could have Native ancestry, and the law still wouldn’t apply to them. So it’s not a one-for-one equivalent to folks who have Native ancestry. 

JS: The lawyer for the Brackeens, Matthew McGill, seemed to be suggesting that ICWA was beyond Congress’ power. And instead, it was just this impermissible scheme to give preference to tribes, tribal members, based on race — and, in so doing, he suggested the real victims here are, wait for it, the Brackeens, and that what ICWA really does is discriminate against them because they’re white. 

Can you talk a little bit about McGill’s argument? And also, I’d love it if you could tell us a little bit more about who McGill is, and his background in these issues.

RN: Yeah, so Matthew McGill is a corporate lawyer who does a lot of appellate stuff. So it’s not his first time in front of the Supreme Court. And he works at a law firm called Gibson Dunn. Gibson Dunn is a really big corporate law firm that normally represents people like Amazon, and Chevron, and Walmart. They were also the law firm for the company behind the Dakota Access Pipeline. And the other thing that they do is that they have a lot of clients that are in the gaming industry, so casinos, and a lot of people in the gaming industry view tribal gaming as sort of monopolizing a corner of the market. And Matthew McGill and a senior partner at his law firm named Ted Olson actually filed a federal complaint about a year ago making that argument and then using the exact same legal arguments that they’re making here in this ICWA case, but instead about casinos. 

And so you can kind of already see — literally — how if they got a win in Brackeen, it could set precedent that would benefit their gaming clients, which is just really sinister when you think about how this case also just involves the lives of Native children. So that’s Mr. McGill.

And then the arguments that they’re making — they’re basically making two really, really big arguments and then a third smaller argument. So the two big arguments that they’re making are that ICWA violates the equal protection clause of the 14th Amendment, which is basically laws in the United States can’t treat people differently based on race. 

And they’re saying, this whole idea of tribes and tribal citizenship — and when it comes to ICWA, that’s not a political classification, it’s racial. And then the second argument that they’re making is that child welfare in these types of cases are really up to states; states are the ones that pass child welfare laws, and they get to decide how these cases are adjudicated. And Congress can’t step in and tell states here what to do. Although there are actually like a ton of federal laws [laughs] that also came up during oral arguments. Like this isn’t the only federal law that governs family law. 

But anyways, and then they’re making a smaller argument that’s also saying that because state agents — a social worker who works for Texas has to actually like carry out what ICWA requires, it’s called commandeering, so it’s the federal government commandeering estate agent — and that that’s also unconstitutional.

JS: Yeah. I thought that it was really interesting when, I think it was Justice Sonia Sotomayor, who was bringing up like: Well, what about the parental kidnapping and The Hague Conventions?

Justice Sonia Sotomayor: Counsel, can I turn to something you said, which was it displaces the best interest of the child standard? In most state custody proceedings, the best interest of the child is what guides those decisions. Yet we have the Hague Convention on the abduction of children that basically says to the Court: You can’t make that determination. You have to send the child back — and it gives a section of exceptions, etc., and it even sets standards of proof, etc. 

Why is this case any different than the Hague Convention?

JS: Maybe you could talk about those. Because it relates back to the relationship of the federal government and that trust relationship with tribes, right? They’re trying to explain: The way this works is the same way, right?

RN: Yeah. 

JS: And McGill just seemed to be kind of not having it — or maybe not understanding it! I don’t know which it was. [Laughs.]

RN: Yeah. No, I think there were funny moments, with both McGill and then the lawyer for Texas, also, where they just kind of got tripped up. Because what they were trying to do is they are trying to make the argument that the implications of this lawsuit aren’t broad. And Sotomayor, Gorsuch, and other justices weren’t buying that. Because it’s sort of like: How can this be true about ICWA and not be true, like you said, about the kidnapping law or the Hague Convention? Or there’s a law that protects service members who might be in child welfare proceedings that’s a federal law. And so would all of those laws also be struck down if ICWA was struck down? 

And then it was kind of the same thing they were saying around Congress not having this authority when it comes to tribes. So they were trying to argue that children aren’t within tribal self-interest, which is crazy! [Laughs.] And then they’re also trying to say: Oh, well, because it’s off of tribal land and it doesn’t just apply to kids who are on the reservation — so they were trying to split hairs, and sort of make a narrow argument. 

But when you kind of zoom out and look at the case, the arguments that they’re making are quite broad. And that’s what’s scary about the case is that it could have really big implications on federal Indian law. So if ICWA discriminates based on race, well, what about casinos? Like, how is it fair? Or how is it racial discrimination for this non-Native foster parent to not be able to adopt a Native kid, but it’s not for a tribal tribe to be able to operate a casino where a non-Native developer cannot? What about health care? Why can I go to a healthcare clinic that only serves tribal citizens? And if you went there and tried to get health care, they would turn you away? If we are just a racial group, what about the environmental regulations that we have, the elections, the government, the land rights, the water rights, what racial group has its own court system, its own police force? 

And so the fear is that the case could really be a domino effect. And so at the Supreme Court, they were trying to downplay that, and sort of draw the lines in the sand. There was this moment between Kagan and the lawyer for Texas, where Kagan was just like — she’s obviously not saying this — but almost kind of just like: What the hell are you talking about? [Laughs.]

JS: Oh, we’re gonna get to that? 

RN: [Laughs.]

JS: [Laughs.] Yeah, it was kind of great. [Laughs.] 

Yeah, no, absolutely right. Because all over the argument, it seemed to me there was this willful misunderstanding of the difference between political classification and racial classification. And one of the ways in which it repeatedly gets brought up is in reference to that third preference. 

RN: Yeah. 

JS: And it was like several of the justices — and my mind immediately jumps to Justice Brett Kavanaugh here — 

RN: Yes. 

JS: — seem to be suggesting that like: Aha, this third preference is what signals that this is actually all about race! 

So here’s Kavanaugh:

Justice Brett Kavanaugh: I want to ask about the equal protection issue quickly. 

The equal protection issue is difficult, I think, because we have to find a line between two fundamental and critical constitutional values. So on the one hand, the great respect for tribal self-government, for the success of Indian tribes, with Indian peoples, with recognition of the history of oppression and discrimination against tribes and peoples. So that’s on the one hand. 

On the other hand, the fundamental principle, we don’t treat people differently on account of their race, or ethnicity, or ancestry — equal justice under the law. I don’t think we would ever allow, as the Court suggested in Palmer in 1984, Congress to say that white parents should get a preference for white children in adoption, or that Latino parents should get a preference for Latino children in adoption proceedings. I don’t think that would be permitted under that principle of equal justice that we recognized in Palmer.

JS: So yeah, that one. And I want you to say whatever you would like to say about that. But I was kind of hoping that you could explain within this here, why the third placement preference is not about race, and also kind of go back into something you talked about a little bit at the beginning, which is equally important, which is how it’s not even an issue in this case. Because I felt like they kept invoking it as a way to sort of theoretically, at least, sort of bolster this idea that this is all about race, and thus an equal production problem. But it doesn’t actually exist. Because a, it doesn’t exist in this case, but also it’s because that’s not what the third preference is signaling at all. So yeah, take any piece of all of that you want. [Laughs.]

RN: I mean, I think Kavanaugh has this habit of sort of making statements that are, I think, a dog whistle. That’s actually the more tempered example. He has another moment where he’s just like: Well, we couldn’t pass a law where just white people could only adopt white children, could we? And he says things that are a little bit like that, but more inflammatory. 

And so I think it just betrays that that is a statement that isn’t about the law because the law doesn’t just apply to people who are Native or who have Native ancestry, like I already explained. To me, that statement is just about the raw politics of the case, and sort of buying into the framing that the individual plaintiffs have used.

And then when it comes to the third placement preference, it wasn’t invoked in any of the underlying custody cases. And actually, one thing that’s really important to note is that in all of the underlying custody cases, there was a Native blood relative that wanted to raise the Native child; every Native blood relative got pushback, whether that was from a social worker, a family court judge, or the individual plaintiffs themselves, and only one Native grandmother was able to win custody, and she had to fight to be able to adopt her grandchild for six years.

That was the thing that made me very angry about listening to the oral arguments was having talked to those Native families and seen and heard stories of the real — very real — barriers that Native families face when they’re just trying to keep their children and for the justices to spend so much time on this hypothetical that isn’t even happening. 

And so the reason that third placement preference is there is because Native communities are more complicated than just a federally recognized tribe. So for example, as Cherokee people, there are three federally recognized Cherokee tribes, two here in Oklahoma that have the same reservation, the same land. And so maybe a child could be enrolled in the Cherokee Nation, but then one of their extended family members is United ??Keetoowah. And it would be completely appropriate for a UKB person to adopt that child. 

There are also Native people who might live on a reservation that is not their own. A lot of times people also are members of more than one tribe. And some tribes have rules where you can only enroll in one tribe, so they might be enrolled in one tribe and are eligible for membership in two. That’s actually [true for] one of the children in this case. He’s eligible for enrollment in, actually, three federally recognized tribes, but he’s only enrolled in one of them. And so yeah — there’s a lot of reasons why somebody would be an appropriate caregiver for a child but not a citizen of their tribe, but still connected to that child’s community. 

And so Gershengorn, who was the lawyer for the intervening tribes, did a really good job of explaining it, where the hypothetical they’re talking about, I think he called it like the Arizona to Maine [hypo], where it would just be like a completely unrelated person, completely unrelated tribe. And the plaintiffs in Texas haven’t put forward such an example. And so we’re talking about a hypothetical that may have never happened, at least that nobody can point to. 

And so yeah, again, I just think, for me, the takeaway from that is that the justices are sort of more concerned in these hypothetical questions than what is actually happening on the ground, which I think is very concerning. And I think is also — and I’ll stop here — but I think is a reason why this is a question for Congress because Congress is the body of our government that can have hearings, that can do investigations, that can issue reports, that can be like: Well, what is actually happening? Because I don’t think that we should determine what policy is best for the well-being of Native children by nine pretty ignorant people about how the law works, and what’s happening on the ground, based on hypotheticals. It should be based on what’s actually happening in these custody cases. And that’s an issue for Congress, not the Supreme Court.

JS: That’s absolutely right. That’s policymaking, right? Which actually — we’ll come to the Kagan moment here. [Laughs.] Because this is where Texas sort of enters the picture, at least in our conversation. 

They’ve firmly stuck their foot in the middle of this case. And I will say, for more on that, you have to listen to Season Two of Rebecca’s podcast, but representing the state at the Court is Solicitor General Judd Stone, who had a couple of lines of attack: what we were talking about, the anti-commandeering, so that basically provisions of ICWA conscript Texas into enforcing a scheme that, by the way, too, was beyond Congress’ plenary power and is basically illegal. But in trying to make his argument he kind of created out of whole cloth parameters for Congress. And to this Justice Elena Kagan was like: Wait, what?

Justice Eleanor Kagan: Yeah, I guess the only point I was making, I’m sure that we can find places where the Court has said that Congress has power over each of these areas. But I don’t think you’ll be able to find a place where the Court has said, what the plenary power means is these three things and these three things alone, and the plenary power doesn’t extend further. 

Because after all, the Court has said — I mean, I don’t really believe in reading our opinions like statutes, but when the Court uses the phrase “plenary power” tens and tens of times over decades and decades, I mean, plenary means unqualified, it means all-encompassing. 

Now, I don’t doubt what you said earlier, that it might have an occasional exception here or there, but it strikes me as a very odd way to think about plenary power to just start constructing categories, and saying everything else is left out when we’ve said over and over that everything, except really rare things, are in.

JS: So Stone’s position also clearly did not impress Justice Neil Gorsuch, who we should note, right, is the only one on the Court with substantial experience in federal Indian law. 

Judd Stone: — Indian Affairs power —

Justice Neil Gorsuch: I’m sorry to interrupt, but this new rule would, I think, take a huge bite out of title 25 of the U.S. Code which regulates the federal government’s relationship with tribal members. There are health care provisions that Congress promises to Native Americans off-reservation; that doesn’t seem to fall in any of your buckets. Congress has permitted tribes to exercise power over environmental regulations that have indirect effects off-reservation; that would that would seem to go to. We have laws that promise Native Americans access to sacred sites off-reservation, and religious liberties off-reservation; that that would seem to go. And I’m not even sure maybe the liquor sale, those old precedents, but maybe that’s commerce, I don’t know. But there would be a lot that would be bitten out of title 25. We’d be busy for the next many years striking things down

JS: And then several of the justices seem to have a hard time wrapping their heads around Indian law until the lawyer you mentioned that’s representing the tribes, Ian Gershengorn, got up and basically just kind of slayed Stone and McGill’s arguments one by one. Let’s listen to that.

Ian Gershengorn: Now Interior has explained how good cause works. It involves, you can take into account the views of the parents; the views of the child, if the child is old enough to express them; you can take into account sibling attachment; you can take into account bonding with foster parents, as long as it was not done illegally through ICWA. The thing you cannot take into account is socioeconomic status. So what the Casey brief and others say, and the reason why medical professionals are here, states are here, family rights advocates are here is because ICWA is the gold standard. It adopts those evidence-based presumptions and allows for flexibility to protect the best interests of the child. 

JS: And then again: 

IG: First, this is at the core of the Plenary Power Doctrine. From the beginning, the Plenary Power Doctrine was used to protect Indians from non-Indians. There is no doubt that if states had moved in and done a wholesale physical removal of Indian children that would have been within the duty of protection. The fact that this is being done through state courts, through state family law, doesn’t deprive Congress of power.

JS: Do you think that Gershengorn finally got through to the judges?

RN: Yeah, so Gershengorn, this isn’t his first time representing tribes in front of the Supreme Court. And he is one of the lawyers that’s been tapped by a broader project called the Tribal Supreme Court Project that was co-founded by the National Congress of American Indians, and the Native American Rights Fund after about a 30-year period where tribes had lost the majority of cases. And so tribes were really, in the early 2000s, really not doing well in front of the Supreme Court. And so they what they did is they went out and they looked at lawyers who have a practice, are already kind of established at the Supreme Court; Gershengorn was the Solicitor General before and then have brought them in and sort of made them better, brought them up in their arena of federal Indian law and made them experts there. And so Gershengorn didn’t just fall out of the sky and be like an effective advocate. It was also decades of work from lots of different folks to create that project. 

And so yeah, I mean, I think in terms of where the justices are at, I mean, I think from the beginning, there were four justices who were very clearly skeptical of Mr. McGill and Mr. Stone’s arguments — so, Kagan, Sotomayor, Jackson, and also Gorsuch. So the three liberal justices and Gorsuch, and then you had four justices that, in my mind, their questioning wasn’t really tied to the details of the case, or really the legal arguments presented, but it was more about the politics of the case and how it looked. This is a court that’s also hearing cases around affirmative action, and so this kind of dog whistle of like, oh, well, this is treating people differently based on race, I think has a lot of traction with this court, especially with Chief Justice Roberts. 

And I think that if there is a swing vote in the case, it’s Barrett. So the questions that she asked were very specific, and they were kind of in the weeds about how the law works. And it was about that kind of third argument, anti-commandeering, which could still strike down ICWA, but would have less of a disastrous effect in the arena of federal Indian law. 

Yeah. So I think what’s is that a lot of people say that the justices have kind of made up their mind by the time we get to oral arguments [laughs], and some of the justices already seemed set in their positions. But yeah, I think Barrett seemed very curious about how the law actually works on the ground and was also asking questions that were more narrow and would have less of a sweeping implication on the Rights of Indigenous nations in the U.S.

JS: Regarding Barrett, just to be clear, because I realized she was asking some very specific questions and I felt kind of out of my element trying to figure it out. But — I don’t know: Was she trying to get at severability? That you could not burn it all down. Do you know what I’m saying?

RN: Yeah. She asked, I think, to each lawyer, so four times she asked the same question, which was basically: Who carries out active efforts? 

So I mentioned it before, but ICWA requires active efforts to reunify a Native parent with their child if the child has been taken away by child welfare workers. And so she basically was like: Well, who is required to carry out these active efforts, which kind of goes to that anti-commandeering? And there is a world where there is a Barrett opinion that maybe is more narrow, where only part of ICWA is struck down, and that would be like the active efforts section, or maybe ICWA is struck down, but it is struck down in a way that doesn’t impugn the rest of federal Indian law. 

I think the big fear with this case is that it’s going to be like a bomb going off in Title 25, and have really big implications for other areas of the law. So yeah, so Barrett was asking a very specific question. Her question actually didn’t get answered [laughs] by any of the advocates. So it’ll be interesting to see what happens.

JS: To end, I want to zoom back out a bit. In the argument from various lawyers, we heard a lot about how terrible ICWA is, and how victimized the Brackeens have been by it. But you’ve done so much reporting on this. And I want to know from you how ICWA actually works, like how it’s applied in practice. What can you tell us about that?

RN: Yeah, absolutely. So I mean, one is I don’t think we have to go further than the custody cases that are before the Court to see why ICWA is important and why it’s necessary. So like I said, before, every child in the underlying custody cases had a Native relative who wanted to adopt them. And every Native relative got pushback, and a lot of times that pushback was about things like — they had a non-violent criminal record, or they were poor. It’s the same type of crap that was happening in the 70s.

These individual foster parents also went to pretty extreme lengths to try and gain custody and fight off blood relatives who wanted to adopt the children. So I mean, the Cliffords, who are the couple from Minnesota, Danielle Clifford wrote a whole affidavit about how Child P’s grandmother shouldn’t even have supervised visits with her grandchild because she had bad boundaries. And the concrete example that she offered the Court about this grandmother’s bad boundaries was a list of every time that grandmother had given her grandchild a gift. So just some really kind of awful and heartbreaking things actually happened in these custody cases. And when you dig into it, the awful, heartbreaking thing isn’t that the Brackeens didn’t get custody — because actually, oh, wait, they did — it’s really what happened to these Native relatives. And this idea that these kids could have stayed not only with their family, but with their tribe and with their culture, and instead, that relationship was severed. And so I think the cases show just exactly why ICWA is still needed. 

What we know about how ICWA works zooming out, there’s actually not federal data, because there was going to be federal data under Obama, and then Trump rescinded it. And so it is now a lawsuit I haven’t checked in on in a while, over whether or not the federal government would collect ICWA data along with what’s called the AFCARS data, but it’s the big national data that’s collected around kids in foster care.

But what we can see in pockets and this research comes from the Casey Family Programs, is that when people comply with ICWA, so when people notify the tribe, when people do active efforts with parents, so when people involve the tribe and work with the tribe, kids have better outcomes. And those better outcomes mean staying in foster care for less time, and finding what people call permanency — basically, that home where kids are going to stay, finding permanency sooner.

JS: Wow. 

Finally, I want to get back to Gorsuch’s clip about how if the Court accepts Stone’s view of Congress’ power, that the Court will be just busy for years, striking things down. I want you to say a little bit more about that. Because, to what you’re saying, it seems like, Wait, is that the point of why we’re here? 

So maybe talk a little bit more about what the ramifications of or potential fallout from this case is, and how challenging ICWA may be part of a larger strategy?

RN: Yeah, absolutely. 

I think that there’s a lot of evidence that the well-being of Native children is not the focal point of the special interests that brought this lawsuit. I mean, the Brackeen lawsuit didn’t organically raise out of the Brackeens trying to adopt a Native child. There has been a coordinated campaign to strike ICWA down over the past decade. And these lawyers, like Mr. McGill, are out there actively looking for clients. And so they found the Brackeens through an adoption attorney. 

And so what we found was that a handful of private adoption attorneys, a handful of right-wing organizations — who are actually all kind of getting their money from the same place, the Bradley Foundation — and these corporate lawyers, like Mr. McGill, have been leading the charge to get ICWA struck down. It’s actually a really, really small group of people. 

And I think we can see the ulterior motives that all those people have. The private adoption industry basically fights any regulation that makes it harder to adopt children at all. And that’s because there aren’t enough available children for adoption. There are more people who want to adopt than kids who are available. What we found within internal documents around the funding for the anti-ICWA campaign when it came from right-wing organizations was that it was about building state-based infrastructure, conservative infrastructure through litigation. So it wasn’t even about tribes or Native kids or child welfare, it was just this broader political agenda. 

And then I think with the corporate lawyers, I think they kind of showed their hand when they filed the Maverick Gaming case that, look, this isn’t just about Native kids, these legal theories have broader implications in the arena of federal Indian law. And so I think Gibson Dunn and Matthew McGill have already kind of shown us what their ulterior motives are by filing that lawsuit. 

And I think, for Indigenous nations, I was at the Supreme Court during oral arguments, and there were a lot of tribal citizens and tribal leaders who were there. And it was a really heavy day. I think what it feels like for tribes is just that we’re still fighting for our legal existence, we’re still fighting to maintain the treaty rights that we have. And what’s happening again, now, that is so tragic, and what’s happened before is that our children are the first line of attack, our children are sort of the first line of defense, they are the tip of the spear in this project of colonization. And I think that’s a really heart-wrenching thing for tribes to see, not only how much is at stake in this case, but that they’re using our kids, again, to attack tribes. 

And so just briefly to explain the broader implications in terms of legality: I kind of explained the equal protection argument, so this idea that you can’t treat tribes or tribal citizens differently. I mean, it’s everything; I can carry an eagle feather because I’m a citizen of a federally recognized tribe; I can get my health care at IHS; I can participate in my tribal government. If I commit a crime on my reservation, who can prosecute me is different. I mean, it’s a whole scheme of laws that could crumble if you can’t treat Native people differently based on race — tribes and tribal citizens differently based on race. 

And then the other big argument they’re making is just that Congress doesn’t have this authority. And you heard Gorsuch being like: Well, what about this? And what about that? Congress has passed a lot of laws that govern the Federal relationship between tribes and the U.S. federal government. And so if Congress doesn’t have that authority, well, then what happens with all these laws?

And it’s kind of ironic because there have been periods of time when the laws that Congress passed didn’t really benefit Native people. We had the termination era; we had the allotment and boarding school era. And since the ’70s, we’ve had what people call the self-determination era, where Native folks organized and we finally got laws that, while not perfect, do more good than harm. And now people are coming back and saying: Ooh, Congress can’t do that. I think it feels a little late to be saying that! 

JS: Well, also, it’s the whole idea that there are obviously racial elements here, but the whole scheme and they want to make that the point, whereas the point is that tribes are recognized as a political, as a sovereign entity with a relationship, like a foreign government, right?

RN: Absolutely. 

JS: So that’s what was driving me crazy the whole time was like, they seem to willfully want to come back to race, where the lawyers would be saying, well, but actually this is about this relationship. But I guess maybe that is kind of what you’re saying, it sounds like it is the point to muddy the waters because it becomes a lot easier to get rid of casinos on tribal land if those were just allowed because of race and not because of a political class. 

RN: Yeah, no, absolutely. And that is exactly what Mr. McGill argued in the federal complaint they filed on behalf of the non-Native casino developer. They said: Hi, I’m a non-Native casino developer, I can’t operate these types of gaming facilities that tribes in the state of Washington can, and I am not making all this money that they do. And that’s racial discrimination. 

And so: It’s about money! [Laughs.] And so yeah, I think that that’s exactly right. It’s sad, but I think the sovereignty that tribes still do have, some folks see it as a threat and would benefit from it being diminished. And I think that that’s the broader goal of this case, this lawsuit.

JS: Rebecca, thank you so much for joining us.

RN: Thank you so much for having me!

JS: That was Rebecca Nagle, a journalist, citizen of Cherokee Nation, and host of This Land podcast. (Sidenote, it is excellent! If you haven’t listened yet, I highly recommend that you do.)

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. This episode was produced by José Olivares and Laura Flynn. Roger Hodge is editor in chief of the intercept and Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join. Your donation, no matter what the amount, makes a real difference. If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much. 

Until next time, I’m Jordan Smith.

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