Melissa Harris-Perry: On Wednesday, the Supreme Court held oral arguments for Haaland v. Brackeen which will decide the future of the Indian Child Welfare Act.
ICWA, as it's more commonly known, was intended to prevent Native children from being separated from their tribes and families. It was enacted in 1978 in response to the US government practices that forcibly removed hundreds of thousands of Native children from their homes. With me is Rebecca Nagle, writer and host of Crooked Media's, This Land podcast and citizen of Cherokee Nation. Rebecca, thanks for joining us today.
Rebecca Nagle: Thank you so much for having me.
Melissa Harris-Perry: All right. Talk to us a bit about the broad outlines of the relatively narrow case, and then we'll talk about the big picture that it sits in.
Rebecca Nagle: It's a complicated federal lawsuit. What it boils down to is basically a handful of foster parents and the state of Texas suing to say that the Indian Child Welfare Act should be declared unconstitutional. What the foster parents allege is that ICWA discriminated against them because it treated them differently. It made it harder for them to adopt Native children that they were fostering and that that violated their constitutional rights. Notably, in two of the three underlying foster care cases, those parents actually successfully adopted the children that they were fostering when blood relatives also wanted to raise the children.
Melissa Harris-Perry: How is it that they have standing in terms of being able to claim harm given that the adoptions they hoped to proceed with did in fact go forward?
Rebecca Nagle: Exactly. All of the underlying custody cases are settled. There's one that's ongoing, but the child was born after the lawsuit was filed, so legally, it's not part of the case. It's also in a situation where, again, right now, the foster parents have custody. They're raising her, and they won that custody over her blood relative which is not how foster care is actually supposed to work. That's the big question. It came up yesterday. Ian Gershengorn, the lawyer for the intervening tribes, argued that the plaintiffs don't have standing.
I think it's one of the really wonky things about this case where the facts on the ground in many ways don't match what was being argued yesterday at the Supreme Court. I think it's concerning for folks who are interested, even just in the rules of civil procedure. This idea of the integrity of the high court, you're not supposed to be able to make up the facts about what happened on the ground to get a lawsuit all the way to the Supreme Court.
Melissa Harris-Perry: To understand why that might be happening, I think it's worth listening to a bit of the questioning from the justices here. Let's take a listen to something that Justice Elena Kagan said during yesterday's oral arguments.
Justice Elena Kagan: We have a long history of cases where we've understood legislation relating to the tribes as political in nature, not as racial.
Melissa Harris-Perry: Right. What is at stake in this distinction between sovereign national political identity and racial categorization?
Rebecca Nagle: The plaintiffs, these foster parents, argue that ICWA is based on race and they were discriminated against simply because the children that they wanted to adopt were Native and they are not Native. That's not actually how ICWA and other laws governing the rights of Indigenous nations work. Just like I have certain rights because I'm a US citizen or a resident of Oklahoma, certain laws apply to me because I'm a citizen of Cherokee Nation. That's not a racial distinction.
It actually goes back to the treaty relationship between my tribe and the US federal government and that treaty and trust responsibility that the US federal government has. The really big worry with this case is that, well, if ICWA is unconstitutional because it's based on race, what about the healthcare that I receive because I'm a citizen of my tribe? What about tribes' rights to operate casinos in states where non-native casino developers can't? There's a whole host of laws, an entire section of the US Federal Code called Title 25, that treats Native Americans differently based on this political classification.
If the Supreme Court determines that it's a racial classification, it would be like a bomb going off. It would strike at literally the foundation of the legal structure that defends the rights of Indigenous nations in this country. Legal scholars and Native advocates say that that is the point, that that's the goal, that this lawsuit isn't about Native kids. It's not even about the foster parents, it's not even about ICWA. There's growing evidence that that's true. The pro bono corporate lawyer and law firm that brought this lawsuit has already brought a separate one making the exact same legal arguments, but instead of about kids, it's about casinos.
Melissa Harris-Perry: On this same point, you name-checked being a citizen of, not only Cherokee Nation, but a citizen of the US, and you name-checked the state of Oklahoma. I want to listen for a moment to something else that was said during the oral argument yesterday, this time by Justice Ketanji Brown Jackson.
Justice Ketanji Brown Jackson: It's like the background principle of all of this was that states were getting involved in Indian affairs and the Constitution says, "No, Congress is the one that gets to direct it."
Melissa Harris-Perry: All right. Rebecca, what is at stake with this federalism aspect of this case?
Rebecca Nagle: One of the big, and actually it was talked about more than the equal protection argument, the second big argument that they're making is basically a state's rights argument. It's a question of whether or not Congress had the authority to pass this law in the first place. It's a couple of different things come up in that area. Typically, family law is an area governed by the state, but there are a lot of federal policies that govern how states can carry out those laws. Then it's this big question of, what kind of authority does Congress have when it comes to passing laws that govern Indigenous nations and our citizens?
Historically, that power has been seen as very broad. What the plaintiffs in Texas are asking for is they claim to narrow it and to only narrow it a little bit. The fear is that they actually want to upend it, and so other laws that Congress has passed, whether it's about healthcare or funding for education, would then also be called into question.
Melissa Harris-Perry: Let's take a quick pause right here, but don't go away. We're going to be right back with more of The Takeaway right after this break.
Melissa Harris-Perry: I'm back now with Rebecca Nagle, citizen of Cherokee Nation and writer and host of Crooked Media's, This Land podcast. We're talking about the case where the Supreme Court heard oral arguments yesterday in Haaland v. Brackeen. All right, let's dig in a bit more. We've talked a bit about the overarching question of law, and you were talking about this whole code.
Being an obsessive listener to This Land, I so distinctly remember you in the podcast talking about the sense that, often, federal judges don't seem to even have familiarity with this area of law. You gave us some citations of some fairly horrifying things that have been said from the bench in other cases involving Native rights. I'm wondering with what you heard yesterday, your sense of the familiarity and understanding of these justices relative to this area of law.
Rebecca Nagle: Yes, we did. I would say that it has actually gotten better in recent years, but unfortunately, the justices who showed a familiarity are only four. There was still a lot of ignorance, both about Federal Indian Law and then actually about this law, in particular, the Indian Child Welfare Act and how it functions. Justice Alito made a comment yesterday that was really offensive. He was talking about whether or not Indigenous nations have a shared political interest in the United States, and he was making the argument that we didn't because we were all at war with each other before Europeans arrived, which is, A, not true, and B, a race stereotype.
That kind of ignorance was definitely on display yesterday. It's really unfortunate. It's been at every stage of the case. During the Fifth Circuit of [unintelligible 00:09:00] appeal, an appeals judge coming up with a hypothetical to conjure the stereotype of drunk Native Americans. It's sad, but it's every time our cases go in front of these people, they betray, not only their fundamental lack of understanding of what Federal Indian Law is and how it works but also just the racist stereotypes that are bouncing around in their heads so much that they actually come out during oral arguments.
Melissa Harris-Perry: Before the break, you were talking about the deeper purposes of this suit and the way that this case could undo and unravel as you described it as sitting off a bomb around these very particular relationships between the US federal government and tribes. Can you help me to understand how the foster parents involved in the case are viewing this and how they're talking about and thinking about ICWA?
Rebecca Nagle: Absolutely. I wrote a long article that came out in The Nation yesterday that goes into detail into the story of Heather and Nick Libretti. I think that the easiest way to sum up the perspective of the foster parents is that they, I think, fundamentally misunderstood their role as foster parents as providing a safe and temporary home for a child until that child could be reunified with family and instead fought really hard to adopt the foster children and for the most part, prevailed. Heather Libretti asked this child, Baby O's grandmother to renounce her tribal membership so that ICWA wouldn't apply.
They contacted family members and talked to those family members about why the child was best off in their home and why those family members should reconsider taking the child or fostering her. They hired lawyers. In a biased system, they got social workers on their side. When the tribe identified dozens of family members that were potential placements, the social workers from Nevada refused to call those family members. The tribe actually had to get a judge to order them to start making calls. When they started making the calls, the social workers also tried to talk family members out of taking the child.
I think it's hard to look at the objective facts and understand how the foster parents see themselves as being disadvantaged when the Native families face more hurdles, who are just trying to keep their own children connected to their family. I think it came from this place of really wanting to adopt a child and using foster care as the pathway to adoption, which I think is a growing and concerning trend, both within the adoption industry and within child welfare in the United States.
Melissa Harris-Perry: One final question. Again, I'm a bit of an obsessive listener to This Land. In the first season, you take us through a different case that might have had similar kinds of effects, and there was this highly emotional final episode where the case actually ends up decided surprisingly towards the benefit of Indigenous communities. I'm wondering how you're feeling around optimism, pessimism about how Brackeen will be decided and if any of the relatively more positive effects of having had at least a single case decided towards the direction of sovereignty gives you any additional hope.
Rebecca Nagle: The makeup of the court has changed since then. I would say, based on oral arguments, I think, unfortunately, at the high court, we still have justices that don't understand Federal Indian Law but also justices who don't respect it and don't actually see the rights of Indigenous nations as part of the Constitution like Justice Thomas. I think it is likely that it will be declared unconstitutional by this court. This case, the Brackeen's case, it's not one of the big blockbuster cases that everybody is talking about, but I would argue that it should be because it is absolutely a test for the Supreme Court.
The precedent that they could overturn goes back literally to the founding of the Republic. The US has been passing laws that treat tribes and tribal citizens differently since we left the articles of Convention behind and established our Constitution. If the Supreme Court is willing to undo that, if they're willing to do it in a case where it's very arguable whether or not the plaintiffs have standing, whether the rules of civil procedure have been chucked out the window, I think that that says a lot about the integrity of the high court. Anybody who's interested or worried about the integrity of the high court, I would argue that this is the case that they should be paying attention to.
Melissa Harris-Perry: Rebecca Nagle is writer and host of Crooked Media's, This Land podcast. The podcast dives deep into the ICWA case before the Supreme Court. I definitely encourage folks to take a listen. Rebecca, thanks so much for taking the time.
Rebecca Nagle: Thank you so much for having me.
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