The significance of the Supreme Court's
decision today is huge for Indian Country.
Not only do we get to keep our children,
protect them, keep them in our communities,
but the foundations of tribal
sovereignty have also been protected.
The US Supreme Court issues a
landmark decision protecting Nae
American rights by upholding a w
designed to remedy past abuses.
The law prevents state welfare
agencies from separating Native
children from their families or
tribes for fostering or adoptio.
But as one observer put it,
the case was about a lot more than just kids.
Joining us now from Tahlequah, ,
seat of the Cherokee Nation is Rebecca Nagle.
She hosts the This Land podcast.
Is a regular commentator on Nate
American rights and has followed
this case for four years.
Welcome to Square Off.
Thank you so much for having me.
First, I'd like you to start by telling our
viewers about your podcast. It's unique.
Yeah. People can listen to it
wherever they get podcasts.
It's called This Land.
And the second season is
really an investigative dive.
You know, the Supreme Court's recent ruling.
Comes after a decade of special interests
that included right wing groups,
corporate lawyers and private
adoption attorneys mounted A concerted
attack to get Aqua struck down.
So in past decade, this law tha,
you know, a lot of people havent
heard of was challenged nearly s
many times as the Affordable Care Act.
And what many legal analysts and
Native advocates observe is thae
legal arguments in this case threaten
not only this one law but realle
foundation of tribal sovereignt.
And so the attacks on ICWA weren
as a vehicle to mount a broader
attack on tribes in the United States.
And
I want we'll get to that big picture.
But as you say, a lot of people
don't even know about this law,
the Indian Child Welfare Act.
Known by the shorthand of ICWA,
What does the law do?
Absolutely so ICWA was passed by Congress
with broad bipartisan support in 1978,
and that was after a big nationl
survey found that between 1/4 and 1/3
of all Native kids had been remd
from their families and tribes.
And so it was a complicated law.
It does a bunch of different st.
But basically it's like a set of guardrails,
so that when a child who is eitr
enrolled in a tribe or eligible enroll
to be enrolled in a tribe enters foster
care or private adoption proceedings,
if what makes it harder to separate that
child from their family and from their tribe.
So how does this case we're talg
about now make it to the Supreme Court?
Yeah, so it started all the way back in 2017.
White evangelical couple living in the
suburbs of Fort Worth named Chad
Jennifer Barkeen had been fosteg
a Cherokee and Navajo toddler wn
that child was available for adoption.
After the rights of his parents
were terminated, one of his tri,
Navajo Nation, found a Navajo h.
And that's where, you know,
according to ICWA, the tribe should go on.
The Bracken sued.
And they actually sued in family court
with the help of a corporate law firm
and the attorney general of Tex.
And what happened is basically
they won custody.
They won custody pretty quickly
because they had this huge
legal arsenal at their disposal.
But the same week that they
found out that they were,
you know,
the barriers to adopt this child
had been lifted,
they filed a lawsuit in federal court
saying that it was unconstituti.
Because it discriminated against
them as non-native people becaut
wouldn't let them adopt the tod.
And so it has spent years workig
its way through the federal
courts like court cases do,
and ultimately wound up at the Supreme Court.
And
so did the Supreme Court rule on
the constitutionality of the la.
Yeah. So the Supreme Court
made a couple rulings.
There were, there were a couple
really big arguments in the cas.
So the first big argument was whether
or not Congress has the power or
the authority to pass a law like
ICWA in the 1st place or if rea,
you know, what happens in these
kind of child welfare proceedins
should be up to the states.
And the Supreme Court for a lot
of different reasons, said yes,
Congress has the power to pass
a law like ICWA.
There was another big argument and that
big argument was this idea that ICWA.
Discriminates based on race.
And what the Supreme Court
ruled on that issue is that the
plaintiffs didn't have standing.
And standing is a legal term
that basically means you have
the right to bring a lawsuit.
And so, you know,
instead of losing custody and tn
appealing that loss and bringing a case
from an actual like adoption proceeding,
the underlying adoption proceeds
in this case were all settled.
They were all done.
And so instead, the plaintiffs,
you know, brought this case and federal.
Court and the Supreme Court said basically,
you know, you can't do that.
You can't sort of bring an
abstract legal dispute.
You have to have what,
you know,
a lot of people call controversy
or a real conflict and so the
plaintiffs are sent away because
they don't have standing.
The race issue has been prominen
this case over the last several years
and different variations of the case.
The Phoenix based Goldwater Institute
an advocate for conservative
slash libertarian causes.
Has led the legal assault against ICWA
and the courts over the last eight years.
I'd like you to respond to what a Goldwater
lawyer told PBS News Hour about the law.
Let's listen to that bite.
ICWA is itself systematic racism against
children who are at the greatest risk
of any demographic in the count.
Systematic racism and one of the
narratives have has has been that, look,
you know there aren't enough trl
families out there to take these kids.
You have willing white familiesr
other families who who can do i.
What's your response to that?
You know, Timothy Sandifer is not the
first white man to say that he s
what is best for Native childre,
better than native people ourse.
There have been generations of white people
who've come along and say, you know what?
We know what is best for Native kids,
and it's this and that kind of hubris.
It's how we got programs like what led to
ICWA in the 1st place where native kids
were being systematically removed from
their homes and adopted by white families.
It's also how we got the
tragedy of boarding schools.
You know, there were white men e
Henry Pratt who thought that they knew
what was better than native peo.
And so I think we always,
you know when non-native people
say that native people don't knw
how to raise their own children
and that white people know bett,
I think we always need to.
Take those kinds of arguments wa
lot of caution and a lot of suspicion.
And I would also just say that,
you know, in this case,
you know,
all of the national leading chid
welfare organizations weighed
in on the side of ICWA.
Let's now pivot to what you
talked about at the very outset,
the bigger picture here and howu
think this court case fits into that.
I was struck by what one observer said.
I think it was on your podcast.
That this case is about a
lot more than just kids.
What did he mean by that?
Absolutely. And so I I kind
of alluded to this before,
but those big constitutional arguments
that ICWA is racial discrimination and
that Congress doesn't have a power to
pass a law like ICWA in the first place?
If the Supreme Court had ruled for the
plaintiffs on either of those issues,
it would have been like a bomb g
off in the legal structure that defends
the rights of tribes in this country.
And so a whole host of laws
treats Native people differentl,
tribes and tribal citizens differently.
And so it was racial discrimina.
Well, what about, you know,
the clinic where I get my healthcare?
What about tribal casinos that can operate
where non-native casino developers can't?
You know,
Congress doesn't have the constitutional
authority to protect native kid.
Does Congress have the constitutional
authority to protect our land,
our water rights, our way of li?
And so, you know,
the fear with this case was that it was
sort of like the first in a long row of
sort of upright dominoes and that if they.
If you get it, what to fall,
they could topple everything el.
And so that was the fear that Ne
advocates and lawyers and tribal
leaders had going into this cas.
And, you know,
the Supreme Court decided that,
you know,
now,
now is not the time to do that.
Have to end it there. Rebecca N,
thank you so much for your insi.
Thank you so much for having me.