The Supreme Court will decide the future of the Indian Child Welfare Act
ELISSA NADWORNY, HOST:
What started as a custody battle over a foster child heads to the Supreme Court tomorrow. And the decision may have implications for the sovereignty of all Native American tribes.
The case is Brackeen v. Haaland. The Brackeens, who are white, adopted a Native child after a prolonged fight with the Navajo Nation. Haaland is Interior Secretary Deb Haaland, who also happens to be a member of the Pueblo of Laguna. The Department of the Interior helps administer the 1978 Indian Child Welfare Act, often called ICWA, which says that when a Native American child is in the foster system, the government should try first to place that child with a blood relative, a citizen of that child's tribe or any tribal citizen looking to adopt. If the U.S. Supreme Court finds that the Indian Child Welfare Act is unconstitutional, that could dismantle other legal protections for all Native Americans.
Rebecca Nagle is a citizen of Cherokee Nation and host of the podcast "This Land," whose second season dives deep into the details of this case. Welcome.
REBECCA NAGLE: Thanks so much for having me.
NADWORNY: So the Brackeens have already adopted their child. What's their argument?
NAGLE: They are saying that ICWA, while it didn't prevent them from adopting this toddler, that it made that adoption more difficult. You know, it's kind of like a white student suing a university over the affirmative action policy, but then that student was actually admitted to the school.
NADWORNY: So we're talking about racial discrimination in their argument?
NAGLE: Yeah, and that's really why this case is a really big threat to really the legal foundation of the rights of Indigenous nations in the United States. So the Brackeens and their co-plaintiffs claim that their constitutional rights were violated because they experienced racial discrimination because they are not Native, even though, again, for the most part, the non-Native foster parents did win custody. And so what is scary about that argument - and it takes a couple steps to understand - but basically, the way that the law works in the United States is that there's a whole host of laws that treat tribes and tribal citizens differently. And that difference in the law isn't based on race, but is based on our unique political status as sovereign Indigenous nations.
And so if ICWA discriminates based on race, well, then what about, like, the health clinic where I go and get my teeth cleaned? If you're not a tribal citizen, you can't get your teeth cleaned there. What about gaming regulations that allow tribes to operate casinos where non-Native casino developers can't? If we're just a racial group, what racial group in the United States has its own courts, its own police force, its own land base, its own water rights, its own government, its own elections? And so the thinking or the fear is, is that the Brackeen case is the first in a series of dominoes. And if they can topple ICWA, then everything else will go with it.
NADWORNY: Why does the Indian Child Welfare Act exist in the first place?
NAGLE: So in the 1950s and the 1960s, the U.S. federal government systematically removed Native children from their families and their tribes. And I think it's important to note that the removal of children from a racial or ethnic group is an internationally recognized form of genocide. And so an organization did a big national survey, and they found that 25- to 35% of all Native children had been taken out of their home. And, you know, a lot of times, people just focus on, you know, the placement preferences - that first, kids should go to a blood relative and then another member of their tribe. But the law actually does a lot of stuff. It's kind of like a set of guardrails so that when a Native child either enters foster care or enters an adoption, like a private adoption, it works to keep that child connected to their family and connected to their tribe.
If you look at who is talking about whether or not ICWA is good for Native kids or bad for Native kids, on the ICWA is bad side, you have a small handful of right-wing organizations that have no expertise or track record in child welfare and the private adoption industry. And then on the side of saying that ICWA is a good law that benefits Native children, basically every leading national child welfare organization in the United States. And so when we look at what people who are invested in the well-being of children in child welfare have to say, it's almost unanimous that ICWA is a good law.
NADWORNY: And yet the Indian Child Welfare Act has been challenged a lot over time. What are the chances that it gets struck down?
NAGLE: I think very high. I think, unfortunately, when it comes to federal courts, there's a lot of misunderstanding about how tribal sovereignty and even just this particular area of the law even works. I think it's quite likely that the Supreme Court will disregard precedent, will disregard even just the rules of civil procedure and whether or not these individual plaintiffs even have standing, even disregard, you know, just facts and the truth. That's absolutely a test for the Supreme Court, and whether or not those things of precedent, of the underlying facts still matter to this court or if it's just politics.
NADWORNY: That is Rebecca Nagle, host of the podcast "This Land" and citizen of Cherokee Nation. Thanks.
NAGLE: Thank you for having me.
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