The implications of the case against ICWA : Code Switch The Supreme Court is about to decide on a case arguing that the Indian Child Welfare Act (ICWA) discriminates against white foster parents. Journalist Rebecca Nagle explains how this decision could reverse centuries of U.S. law protecting the rights of Indigenous nations. "Native kids have been the tip of the spear in attacks on tribal sovereignty for generations."

The implications of the case against ICWA

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Heads up - this episode has language that might not be for everyone, so be mindful. There will be some swearing.

You're listening to CODE SWITCH. I'm B.A. Parker. Now, the U.S. Supreme Court typically begins releasing decisions in May and June. This term, one of the cases they're considering is the constitutionality of ICWA, or the Indian Child Welfare Act. So with the decision looming, I started listening to a podcast called "This Land" about the implications for Native people if ICWA is struck down. It's hosted by Rebecca Nagle. She's a journalist based in Oklahoma and a citizen of the Cherokee Nation.

It's nice to meet you.

REBECCA NAGLE: Oh, yeah. (Non-English language spoken). Hi. My name is Rebecca Nagle. I'm a citizen of Cherokee Nation. I live in Tahlequah, Okla., and I am from Joplin, Mo.

PARKER: I wanted to talk to Rebecca about the history behind ICWA to better understand how a case about the rights of white foster parents could, as she explains in the podcast, gut Native sovereignty.

So you host the podcast "This Land," and the second season takes on a case about the Indian Child Welfare Act, or ICWA. Can you explain what ICWA is for us?

NAGLE: Yeah, absolutely. So Congress passed the Indian Child Welfare Act in 1978, and it was after a big, national survey had found that about a third of Native kids had been removed from their family and their tribes.


NAGLE: So there were a couple things going on. There was a federal program where the federal government literally gave the Child Welfare League of America money to take Native kids out of Native homes and place them in white homes with the very racist thinking that they were better off there. And the other thing that was happening in greater numbers is that state child welfare workers were taking Native kids away from Native families for all sorts of reasons that didn't really have anything to do with abuse or neglect. So they would take kids because they were being raised by a grandparent instead of the biological parent. They would take kids because families were struggling with poverty.


SANDY WHITE HAWK: I've heard people say, yeah, we had a drill in our house that if a car drove up the driveway, we knew that it would be somebody from the government or a social worker or something. I remember one of my uncles saying that he remembers the day that the social worker came and got me - drove into the driveway, and I was toddling around, and they were all sitting around the house as far as I know. That's how it was told to me. And she just simply got out of the car, scooped me up and put me in the car.

NAGLE: When there was congressional testimonies, you know, Native parents talked about going to the store to get groceries and coming home and their kids were gone.


WHITE HAWK: You know, I remember being told, you know, we took you from the reservation so you would have a chance, you know? A chance at what? We're given nothing to deal with the major micro- and macroaggressions that happen on the daily. Most white families, to this day, minimize racism like crazy. So you're emotionally isolated to the point of, you know, overload, which is why, for adoptees, there's such a high rate of suicide and addiction.

NAGLE: And so Congress passed ICWA in response to this problem in 1978 to prevent family separation in Native communities.

PARKER: In the podcast, you explained that ICWA sets out placement preferences for where Native children should go if they can't be with their biological parents. The first place would be members of the child's family, then members of their tribe and then other Native homes. And that's been what's supposed to happen since 1978. But now the constitutionality of ICWA is up for debate in the Supreme Court. Can you tell us about the case that's in front of the justices?

NAGLE: Yeah, absolutely. The case that the Supreme Court is probably hashing out their decision on right now and revising is called Haaland v. Brackeen. It started in 2016. There was a white couple in Texas who had fostered a Navajo and Cherokee child for about 10 months. And at that point, his parents' rights were terminated, and he was available for adoption. And Navajo Nation found a Navajo home that wanted to adopt him. But this couple, the Brackeens, felt like the child should stay with them.

PARKER: Yeah. And this is how you explain their backstory in the podcast.


NAGLE: The whole thing starts with the story of this one couple in the suburbs of Fort Worth, Texas, Chad and Jennifer Brackeen. Jennifer is a successful anesthesiologist, and Chad is a stay-at-home dad. They are both Christian, and they believe people with a lot of money, people like them, are supposed to use that money to serve God, to help others. A few years ago, they started looking around for what to do. And after reading books, asking church leaders and praying, they decided to become foster parents.

PARKER: So those are the Brackeens, one of the white families listed as plaintiffs in this case.

NAGLE: And so they, actually - they had the help of the attorney general of Texas, which is extraordinary. Just imagine, like, getting a divorce, and, like, the AG of your state has, you know, an opinion on who should raise your kids. It's really unheard of.

PARKER: It's very unusual.

NAGLE: And they also got legal help from a law firm called Gibson Dunn.


NAGLE: You may not have heard of Gibson Dunn, but you've probably heard of their clients like Chevron, Shell, Walmart and Amazon. Gibson Dunn has a bit of a reputation. Here's how one of their recent opponents put it.


PAUL PAZ Y MINO: Gibson Dunn has built an entire wing of - like, their reputation is dirty work that they do for Chevron and offering it to others.


NAGLE: If you're a big corporation, you don't hire Gibson Dunn to settle your lawsuit. You hire Gibson Dunn to go scorched earth. And they brought that scorched-earth approach to a custody battle over a 2-year-old. Around the same time the Brackeens were fighting to adopt Antonio...

PARKER: So this white foster family wants to adopt this Native child. And somehow the Texas AG and this huge corporate law firm decide to help them.

NAGLE: Yeah. And so they actually won custody of the kid in family court, and the tribes agreed to let the adoption move forward. And what's wild is that the same week that they found out that, basically, their adoption of this kid was going to move forward, they filed this federal lawsuit saying that ICWA violates their constitutional rights.


JOHN G ROBERTS JR: Haaland v. Brackeen and the consolidated cases. Mr. McGill.

MATTHEW MCGILL: Thank you, Mr. Chief Justice, and may it please the Court. My clients opened their hearts and their homes to a child in need and embraced that child as a part of their family. They are here because the Indian Child Welfare Act's placement preferences turned their lives and their families upside down, solely because the child they took in is an Indian child, and they are not, and cannot be because of their race, Indian families.

NAGLE: So the Brackeens are saying that ICWA discriminated against them based on race because they aren't Native, and they were joined by the state of Texas. And Texas is saying that ICWA is a violation of states' rights. They're basically just making a states' rights argument. And then, since the Brackeens filed the lawsuit, more couples who wanted to adopt Native kids they were fostering joined the suit, and then it went all the way to the Supreme Court.

PARKER: You talked to a woman named Sandy White Hawk about this in the podcast. She's the same person we heard from earlier who was taken from her family when she was a toddler.


NAGLE: So people who oppose ICWA say that the law disadvantages Native kids because it treats them differently than other kids and that it's a bad law for Native children. What would you say to that?

WHITE HAWK: Bad how? How's it treat them bad? Do you got an example, or...

NAGLE: Yeah. So I think, like, in these particular cases, they say that it puts, like, the interest of the tribe over the best interest of the child.

WHITE HAWK: No. I don't know what you call it when you take something and misconstrue it. That is so not true. Because people do not understand the law, do not understand the structure of a tribe, they don't know anything about Indian families and our connection to each other.

NAGLE: So in this most recent lawsuit, the actual legal argument is that it's unfair to the white foster and adoptive parents because it puts them last in line.

WHITE HAWK: Give me a f***ing break. I'm sorry. That's my immediate emotional response. You can edit all this out. But Jesus, it puts them last. Talk about privilege.

PARKER: So like you said to Sandy, like, this is a case about white people being discriminated against because they aren't always first in line to adopt Native kids.

NAGLE: That's one of the things that's kind of a little wonky about this case, is that the plaintiffs claim that they experienced discrimination because of ICWA, but when you zoom out and look at what actually happened in the underlying custody cases, for the most part, they got what they wanted.


NAGLE: So there's three couples who wanted to adopt four kids 'cause the Brackeens wanted to adopt two. Of those four kids, every child, every child had a Native blood relative that wanted to raise them. And only one of those blood relatives, an Ojibwe grandma, won custody. And it took her six years of fighting to be able to adopt her grandbaby. And in every other case, the white foster parents won. And yet they're at the Supreme Court saying that they are the ones that experienced racial discrimination. The other thing that's very wrong-headed is that ICWA doesn't actually function based on race. It's about a political status. So ICWA only applies to Native kids who are either enrolled in a federally recognized tribe or eligible for enrollment. And the same thing works with the placement preferences. And so that's a political status, not a racial status.

PARKER: OK. 'Cause this is something that I was curious about because I think a lot of people would put Native Americans into a racial category, just at first thought, when, indeed, they are, you know, a political category.

NAGLE: Yeah. And it's one of those things that's tricky. I mean, I think Native people obviously experience racial discrimination, and there is a way that, in the way that we understand race, that that is real. But when you look at what people often call federal Indian law, that body of law goes back to the treaty relationship between the U.S. federal government and Native nations. You know, we've been signing treaties with the United States, really, since the founding. And since that time, even in the Constitution, there's this recognition that Indigenous nations are separate political entities, right? And so 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's a political status, not a racial status.

And what people are worried about is that the plaintiffs are making two main arguments. So we talked about the racial discrimination argument. And then the second big argument that they're making is this kind of states' rights argument where they're kind of saying, well, Congress overstepped its authority. Like, it didn't have the power to pass a law like ICWA in the first place. And what is scary about the Brackeen case is, well, if ICWA is racial discrimination, what about the IHS clinic where I get my teeth cleaned? What about gaming? How can a, quote-unquote, "racial group" have its own elections, its own government, its own land base, its own police force, its own courts, its own environmental regulations, you know?

You know, it was one of the things that was interesting during oral arguments. I mean, some of the justices were asking questions going back to, like, laws that were passed in, like, the '90s, as in, like, the 1790s, you know, like, really, really, like, back, back, back in history. Literally since the founding of the United States, Congress has been passing laws that govern the federal relationship to Indigenous nations. And so the fear is that this would be kind of like a bomb going off in that area of law.


SONIA SOTOMAYOR: What do you do with that line of cases, like the 1799 Trade and Intercourse Act? 1799 state courts - a law from 1888 - proper bail...

NEIL GORSUCH: Our precedent going back to 1865 that says in reference to any...

NAGLE: I think Gorsuch - he had a great line where he was like, I think if we decide in your favor, we would be busy for years to come.


GORSUCH: We'd be busy for the next many years striking things down.

PARKER: How did the justices respond to the Brackeens' characterization of ICWA as a law based on race rather than the best interest of the children?

NAGLE: You know, I think the court was split, but there were some justices who were obviously skeptical of the plaintiffs' argument.


GORSUCH: How is this an invidious racial classification rather than a political classification?

ELENA KAGAN: What do you do with this long line of cases which has consistently said, when you regulate the tribes, you're regulating political entities?

NAGLE: The liberal justices plus Gorsuch had a lot of questions. I felt like Kavanaugh made a few comments that felt kind of like a dog whistle.


BRETT KAVANAUGH: You want to adopt a child. The state court, otherwise, would say the best interest of the child would be to go with you. And then you're told, no, you're the wrong race.

NAGLE: He would say things like, well, if we can pass a law that only Native people can adopt Native children, can we pass a law that only white people can adopt white children?


KAVANAUGH: For Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.

NAGLE: And so it seemed like they were really adopting the framework that the plaintiffs had put forward without understanding why ICWA and laws that apply to Native nations and their citizens are just different. I think you had four justices who were very, very, very skeptical and at times even embarrassed, I would say - the advocates for the plaintiffs and for Texas. And then you had four justices who were pretty obviously sympathetic to their arguments. And then the justice who actually seemed to be in the middle was Amy Coney Barrett.

PARKER: So all of this could possibly fall on the opinion of Justice Amy Coney Barrett. At her confirmation hearing, she talked about being an adoptive mom herself of two Black children.

NAGLE: So we'll just have to see what happens when their decision comes out.


ROBERTS: Thank you, counsel. The case is submitted.

NAGLE: The stakes are really high. The stakes are really high.

PARKER: Coming up - what the ICWA decision could mean for the future of tribal sovereignty. Stay with us.


PARKER: Parker. Just Parker. CODE SWITCH. And we've been talking to Rebecca Nagle, who is the host of the podcast "This Land." She's been reporting on how a Supreme Court case about the constitutionality of the Indian Child Welfare Act could have big implications for Native people.

OK. So on one side, you have Indigenous families and tribes. On the other side, you have these white foster parents trying to adopt Native children and claiming that they've been discriminated against in the process. Like, I know we're just speculating on people's intentions, but I am curious if you think these white foster parents understand the implications of what they're doing by trying to take down ICWA and, like, the dominoes that could fall along with it.

NAGLE: I think unlikely, but maybe. You know, you have these foster parents who are represented by this pro bono law firm that has been actively bringing this litigation. So ICWA has been challenged in the past decade nearly as many times as the Affordable Care Act. So there's been this really small group of people - corporate lawyers, private adoption attorneys, and right-wing organizations - that have brought this kind of mountain of litigation. And we have found, like, letters that they have sent out. Like, have you fostered a Native child? So they're actively looking for plaintiffs. And so I think the foster parents, there are times that I think their behavior is a cause for concern. But I think at the end of the day, they're also just being used as part of a broader agenda.

Gibson Dunn has a very big gaming portfolio. They represent a lot of casino companies. And so the fear is that this case is really kind of like the first domino in a row of dominoes, and that it's not really about the kids. It's not really about ICWA. It's not even really about these foster parents. It's more about this broader attack on tribal sovereignty. And if they can get ICWA to fall, then they can get all these other dominoes to fall. And so there was speculation about that. And then I think when they filed this lawsuit on behalf of this casino company in Washington called Maverick Gaming, it was kind of like the other shoe dropped. You know, the gloves were taken off, and it became pretty transparent.


AYESHA RASCOE, BYLINE: In Washington state, you're now allowed to bet on sports, but only in tribal casinos. That regulation has led to a lawsuit claiming discrimination. If successful, the suit could slash revenue for tribes. It could also undermine Native sovereignty.

DAVID HYDE, BYLINE: As it turns out, the firm bringing the lawsuit for Maverick Gaming makes a similar argument about race elsewhere in a legal case that challenges the Indian Child Welfare Act. That act says...

NAGLE: In that lawsuit, they're making, again, the exact same arguments that they're making in these ICWA cases, sometimes even using, like, the same language. But this time, instead of saying ICWA discriminates against white foster parents, he was claiming that tribal gaming discriminated against a non-Native casino developer.


NAGLE: And so - yes (laughter). And so, you know, I think it's pretty transparent that, OK, if they can win in this ICWA arena, then they can take that argument over into gaming and really open up a lot of markets.

PARKER: I mean, in the first episode of the podcast, you say you followed this case for four years. One of the things I was surprised in listening to that you discovered was that, you know, foster systems don't want this. Like, states with big Native populations don't want...

NAGLE: Yeah.

PARKER: ...ICWA to go away.

NAGLE: So I think one thing that is very telling is when you look at who filed amicus briefs. So in a case, if you aren't a party to a case but you have a position or you have an opinion about the outcome, you can file what's called an amicus brief and sort of tell the court, here is my position and why. And when you look at who filed amicus briefs saying that ICWA is a good law, that it's what's best for Native children and it should stay in place, it's basically every Native nation in the United States - almost all of them - all of the mainline Native rights organizations. It's also a majority of states and the District of Columbia and most of the main child welfare organizations, so, like, Casey Family Programs. You also have, like, the Professional Association of Pediatrics, you know, just a lot of important organizations that look at child welfare saying, no, like, ICWA is what research says is best for kids. And actually, not only is ICWA good, but we should have laws like this for all kids that really focus on keeping kids connected to their family and their community and their culture.

On the other side, what you have is a teeny, tiny handful of right-wing organizations that have no track record and no expertise in child welfare whatsoever, and so it really is telling, I think, about the arguments that they're making around why ICWA is a bad law or how it harms Native children. When you just look at the positions of organizations that are invested in researching, you know, what is best for kids in foster care, they almost unanimously say that ICWA is a good law, which I think, again, just kind of goes back to, you know, there's not a lot of evidence that what these plaintiffs and what Texas is doing is really in the best interests of Native children. And so then you have to kind of go back to, well, then why is this lawsuit being brought?


PARKER: And it feels like apples and oranges but, like, the children are collateral damage for corporate greed. I don't know.

NAGLE: I think that, honestly, like, Native kids have been the tip of the spear in attacks on tribal sovereignty for generations. And so there was this really explicit relationship between taking Native kids to boarding schools and getting tribes to agree to this policy called allotment, through which tribes lost two-thirds of our land base, you know? The government would literally take the children of tribal leaders to try and coerce cooperation. And then we saw the same thing, you know, with that child removal policy that I was talking about that happened in the '50s and '60s.

That coincided with this policy called the termination era, where Congress was actually literally trying to get rid of tribes, saying we don't like treaties. We don't like reservations. We don't like that we still owe these tribes money from, you know, the, you know, billions of acres of land that we took. And so they're trying to just legislate tribes out of existence. And child removal went perfectly with that policy because a tribe without children, you know, eventually, it doesn't exist anymore. And so I think that it's sinister. It's, like, hard to kind of wrap your head around. But when you understand history, using the children of Native nations to attack tribal sovereignty is sadly something the U.S. has been doing for generations.

PARKER: And so if the Supreme Court rules that ICWA is unconstitutional because these white foster parents were discriminated against based on race, what would that look like for Native people?

NAGLE: That's a really good question and a hard one to answer. It really depends on how they write the decision. They could strike the placement preferences. And so we would still have ICWA, but it would be weakened. The other outcome could be that ICWA goes away completely. What would happen then is that it would fall on each state. It would be kind of like abortion, you know? Some states have their own version of ICWA. And actually, what some states have been doing, like in Utah, is strengthening that or passing new laws to make sure that there's kind of a backstop measure if the national ICWA goes away.

But the really big question will be is, how - if they declare ICWA unconstitutional, how do they get there? And if they use either this big it's racial discrimination argument, or the other big argument of sort of states' rights and Congress doesn't even really have the power to pass a law like ICWA - if they use that argument, it could have a disastrous effect on tribal sovereignty more broadly. And that would happen - you know, kind of going back to Gorsuch's quote about the Supreme Court being busy. It would then kind of be up to the courts about how this big Supreme Court decision applies to other laws. But like we can see with Gibson Dunn, these anti-tribal interests are already bringing lawsuits making these arguments. And so we could see follow-up lawsuits that would attack tribal sovereignty using the same arguments but different aspects of it. And so that's what's scary about it.

PARKER: What's the best-case scenario? Like, what do you hope will happen?

NAGLE: (Laughter) Hard to - I'm a journalist, and so it's sort of hard to...

PARKER: Sorry.


NAGLE: I know. It's, like, hard to - it's hard to be like, this is what I hope will happen, because I'm sort of just like, well, this is what I think is most likely. I mean, they could decide this issue based on standing. I mean, I think that there's a really strong argument that the individual plaintiffs don't have standing, which is, you know, to bring a lawsuit to strike down a federal law, you have to say that you are harmed by the law. Well, how were they harmed? They got to adopt the kids. And also, you have to say, well, that that law being overturned fixes the harm, and all the adoptions are finalized. So how does that work? And so I think there are lots of different ways they could decide it. So we'll just have to see.

PARKER: You started your very first episode of the podcast by talking about the history of Indian boarding schools. And you said, I think, quote, "throughout history, the people harming Native Americans have been motivated by two things."


NAGLE: ...By two things - greed and charity. The greedy simply want what Native people have, but the charitable believe they know what Native people need better than Native people ourselves. You might think that the greedy and the charitable couldn't work together, but when you study history, you find that they always do. It's almost as if they need each other. The greedy have the resources and power to get things done. And the charitable? Well, the charitable help excuse unspeakable harm.


PARKER: Why start there? Can you explain why - what you meant by that?

NAGLE: Yeah. I think in boarding schools, there was an argument about why the government needed to take Native kids to course allotment in these land sessions from tribes. But there was also this strong argument, even though boarding schools were horrific places of abuse and even just, like, illness and children not having enough food and being forced to do manual labor, that it was what was best for Native kids. And I think you see that same coupling in this case, you know, where there's the corporate law firm that also has these casino clients.

But then I think that there are people who are part of this case who believe that what they're doing is what is best for these children and that they're helping Native people. And we've seen that in every era of harmful policy. I mean, it's - you know, I've been going through some historical documents from the 1830s. And even when we were forced on a death march from our homelands to Indian territory, where huge portions of our populations died, there was an argument that that was what was best for our tribes. And I think that when non-Native people are arguing against Native people - you know, when Native people are saying no, like ICWA - ICWA is best for our families and our children, I think we need to listen to Native people. Believe Native people.

And I think the amount of harm - the amount of harm that well-intentioned people who thought that they knew better than Native people ourselves what Native people needed - the amount of harm that those people have done is incalculable. It's just - it's so immense. And I think in this case, like in historic examples, those perspectives need to be ignored, need to not be heard. And I think we need to listen to Native nations and Native people when it comes to what's best for Native children.


PARKER: Rebecca, thank you so much for talking to us.

NAGLE: Thank you so much for having me. I really appreciate it.

PARKER: And that's our show. You can follow us on IG at @NPRCodeSwitch. If email is more your thing, ours is And subscribe to the podcast on the NPR app or wherever you get your podcasts.

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This episode was produced by Christina Cala. It was edited by Courtney Stein. Our engineer was Brian Jarboe. And a big shoutout to the rest of the CODE SWITCH massive - Jess Kung, Kumari Devarajan, Leah Donnella, Dalia Mortada, Veralyn Williams, Steve Drummond, LA Johnson, Gene Demby and Lori Lizarraga. And a special thanks to Sam Yellowhorse Kesler. I'm B.A. Parker. Hydrate.

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