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The Brackeens aren’t the only ones suing to strike down the Indian Child Welfare Act. So are Danielle and Jason Clifford, a foster couple from Minnesota. 

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Transcript

Rebecca Nagle: The stories we’re sharing this season, touch on different kinds of trauma. Please take care of yourself while you listen.

Rebecca Nagle: Chad and Jennifer Brackeen are the lead plaintiffs in the big federal lawsuit we’re following this season, but they’re not the only ones. Because of where Chad and Jennifer live, they provided the perfect venue for the case. But their lawyer still needed the perfect plaintiffs, foster parents who, unlike the Brackeens, didn’t have an easy time getting around ICWA. And he found them in Danielle and Jason Clifford. Danielle and Jason met a dance class, a salsa dance class at their church. Before they even got married, they talked about adoption. So when they found out they couldn’t have children of their own, it felt like God’s way of telling them to adopt. Jason is white, Danielle has Indigenous ancestry from Canada but doesn’t identify herself as Indigenous in federal court documents. They knew about private and even international adoption, but they wanted to help children in their own community. So they decided to become foster-to-adopt parents where they lived, in Hennepin County, Minnesota, meaning they would have foster children with the hope of adopting them. At the same time, a toddler who we’ll call Piper, was growing up in Minneapolis, the biggest city in Hennepin County. Piper was close with her mom and her dad, but the person really raising her was her grandma.

Robyn: My name is Robyn.

Rebecca Nagle: Robyn is a citizen of White Earth nation. We’re just using her first name to protect her family’s privacy.

Robyn: When she’s first born, she came and lived with me and my daughter.

Rebecca to Robyn: And what was she like as a baby?

Robyn: She was a bubbly, sweet and funny. She was a good little girl. I used to chase her around the kitchen into the living room and back and forth, and she would laugh so hard. It was the happiest time of my life.

Rebecca Nagle: In the spring of 2014, they were all living together, Robyn, Piper, Piper’s mom, and sometimes, dad. Some other relatives too, who needed a place to stay. But they couldn’t make rent. They got evicted. Here’s Robyn. We’ve bleeped out Piper’s real name to protect her privacy.

Robyn: All of us had to leave and we didn’t know where to go, what to do, anything. My daughter, she don’t believe in shelters and stuff like that. I said, well, I’ll go there, I don’t care, you know, this kid can’t be on the street like this. So she let me have her. I went down to Hennepin County and, we were there half a day. And comes 5:30 at night, she goes, we can’t help you. I said, now, you’re just telling me this. I said, why? She said, well, you’ve got to prove that you’re [bleep] biological grandmother.

Rebecca Nagle: Turned away from the shelter. Robyn tried to find another place to stay, but she ran out of options. So she called Piper’s dad and he took Piper. They agreed once Robyn found a safe place, he would bring Piper back. But that never happened. On August 7th, 2014, around 6:20 in the morning, police got a call that two people were spotted near an abandoned property in northern Minneapolis. When they got there, they found four people in a car with drugs and drug paraphernalia. It was Piper’s mom and dad, their friend, and Piper. Piper’s parents went to jail and Piper went into foster care.

Robyn: That’s when I got the call, the next morning, I was going to go get her out. I was going to bring her home with me. You know, whatever it took. They wouldn’t tell me anything. They wouldn’t share any information with me. You know, I don’t know where she was placed, and they said that, I had no rights to her, I had no grandparents’ rights.

Rebecca Nagle: At the time, Piper was three years old. She spent the next three years, half her life, in foster care.

Rebecca Nagle: You’re listening to This Land, a podcast about the present day struggle for Native rights. From Crooked Media, I’m your host, Rebecca Nagle, [ᎪᎯᏂ ᏓᏆᏙᎠ. ᏣᎳᎩ ᎠᏰᎵ ᎨᎳ.] citizen of Cherokee Nation. This season, we’re following how a string of custody battles over Native children became a federal lawsuit that threatens everything from tribal sovereignty to civil rights.

[music]

Rebecca Nagle: The federal lawsuit, Brackeen v. Haaland, actually includes three foster families. All three say ICWA violated their constitutional rights when it gave preference to a Native family over them. But here’s the thing. Two of those foster families, including the Brackeens, won custody. They already adopted the Native kid. Which brings up one of the biggest questions in this case: legally, should it even exist? When you sue the federal government to change a law, you have to prove two things. First, that the law harmed you. And second, that the law going away would fix that harm. For the Brackeens, whether ICWA stays or goes, their adoption of Antonio is final. So according to the technical rules of civil procedure, they kind of don’t have a case. But that’s where Danielle and Jason Clifford come in. If they weren’t part of this lawsuit, it’s possible the whole thing would have been thrown out by now. What happened, after the break?

Rebecca Nagle: In most states, child welfare proceedings are sealed, but not in Minnesota. I got Piper’s entire case file in the mail on a thumb drive and printed out three binders of documents. I sat down and read every report, every court motion, every affidavit, five days of testimony. That is how I know on August 7th, 2014, Piper entered foster care, and five days later, her grandma sat down with Piper’s social worker. It was this woman’s job to find a relative Piper could stay. With placing kids with relatives or other adults they know is widely considered a best practice in foster care. It’s actually the law in Minnesota because it’s less traumatic and disorienting than being placed with strangers. And kids who stay with relatives are less likely to experience abuse or neglect while they’re in the system. Robyn wanted to be that relative for Piper. Less than a week after meeting with Robyn, that social worker called her back.

Robyn: She goes, you don’t qualify for it. I said, what do you mean I don’t qualify for it? She goes, it’s your record.

Rebecca Nagle: Robyn had a string of old convictions, mostly misdemeanors, and a decade-old Child Protective Services, or CPS, report from when her daughter was a teen. In Minnesota, family members with old criminal convictions can still get licensed. It takes an extra step. But that social worker made no attempt to do that for Robyn. She didn’t even let Robyn know it was an option. And here’s the most important detail about what happened to Robyn, her license was never revoked or denied, because she was discouraged from even applying.

Robyn: My daughter, she even had people that were willing to take [bleep]. Good people, people in her family, they said that they would help. My sister said she would help out. But they came and they turned down everybody.

Rebecca Nagle: Hennepin County turned down Robyn’s sister, Robyn’s roommate, family friends and other relatives. The county told Piper’s grandfather he wasn’t close enough with his granddaughter to be considered.

Robyn: I know at times, for me, I felt like giving up. But something inside me told me not to. It was just like my, my job in life to get her back home

Rebecca Nagle: ICWA doesn’t apply to every child with Native ancestry. It only applies to children who are enrolled in a tribe or eligible to enroll. Child welfare agencies are supposed to provide information to the tribe and the tribe decides whether or not the case falls under ICWA. Early on, Hennepin County wrote to Robyn’s tribe to ask if Piper qualified. White Earth Nation wrote back and said no. But Hennepin County left out a really important detail, a detail that later would change everything. We’ll get to that. But for now, what’s important to know is the system making decisions for Piper is not ICWA, it’s foster care. To understand how foster care works, I called up Anita Fineday. She is also a citizen of White Earth nation and works at Casey Family Programs, a nonprofit working to improve and ultimately prevent the need for foster care nationwide.

Anita Fineday: There are large racial disproportionality for children of color in general in the child welfare system.

Rebecca Nagle: Nationally, the kids who are most likely to end up in foster care are Black and Native. Piper is both.

Anita Fineday: Native American children have a much higher incidence of removal, of actually opening a case and removing the children.

Rebecca Nagle: In Hennepin County, Native kids are nearly 35x more likely than white kids to be removed from their homes.

Anita Fineday: It’s not because there’s a higher rate of abuse. There’s a higher rate of poverty.

Rebecca Nagle: You might be thinking, how is that possible, that a child is removed just because their family is poor? When I started reporting on foster care, it shocked me.

Anita Fineday: The majority of children who are removed from the care of their parents are removed for neglect, not abuse, based on neglect. And I think to a lot of people, poverty, especially extreme poverty, looks like neglect.

Rebecca Nagle: In six states, over half of Native kids will be the subject of a CPS investigation. Imagine being that Native parent. Odds are CPS has knocked on your door, or the door of someone you know.

Anita Fineday: I have seen children removed from their homes because there was no food. Rather than spend $100 and buy food for that family, we’ll spend thousands of dollars paying for that child to live with strangers.

Rebecca Nagle: Since the 1970s, when ICWA was passed, the number of Native kids in foster care has gone up, not down. In Minnesota, one third of Native children will enter foster care before their 18th birthday. It’s the same statistic that shocked and horrified Congress when they passed the Indian Child Welfare Act. And so, like Native children a generation before, Piper became a statistic. In the summer of 2016, Piper had been in foster care for two years. She had been in and out of multiple homes. For a brief period, she was reunited with her mom, but then her mom relapsed and the county terminated the rights of both parents. After rejecting a list of relatives, one because he didn’t know his granddaughter well enough, Piper’s social worker sat down with Danielle and Jason Clifford. She wanted to make sure they were ready to adopt Piper. Here is how Danielle described that meeting in court, read by an actor:

[actor reading as Danielle Clifford] They wanted Piper to not have another move. She had been in her shelter home for almost six months, and they wanted her to be able to make her final move into her forever home. So they were asking us, like outright, in that first meeting in our home, like, are you willing to be a forever resource for this child?

Rebecca Nagle: The Cliffords told that social worker, yes, they were interested in adoption. And so Piper moved in with them.

[actor reading as Danielle Clifford] So we were told that there had been an extensive relative search, and we were told that there was a maternal grandmother who wanted Piper, but that she wasn’t an option for many reasons.

Rebecca Nagle: When we reached out to the Cliffords for comment, Danielle said they couldn’t talk to us for legal reasons. Early on in the custody dispute, the Cliffords made a Facebook post that raised concerns about Piper’s privacy and a judge placed them under a gag order. The whole time Piper had been in foster care, Robyn had tried to maintain a relationship with her granddaughter. But now the county said that relationship should be cut off and the Cliffords agreed. They all said Robyn had bad boundaries. Robyn’s biggest offense was giving Piper a card from her mom, who Piper wasn’t supposed to have contact with.

Robyn: She didn’t have no physical contact, you know? I thought, oh, that’s so cute, you know, she’d probably, you know, be happy that she got something from her mom. You know? I had no idea. Nobody told me that no cards were to be sent, you know?

Rebecca Nagle: But the card made everyone concerned about Robyn and her bad boundaries. The Cliffords argued it was in Piper’s best interest not to see her grandmother. And for almost a year, she didn’t.

Anita Fineday: In Minnesota when they terminate parental rights, it’s as if the whole biological family is deceased. They cut off visitation with aunts and uncles and grandparents. You don’t even have a right to see your brothers and sisters anymore.

Rebecca Nagle: But the social workers and the Cliffords didn’t want Piper to forget her family, so they put together a photo book of Piper’s relatives. She could see it any time she asked. One night at bedtime, it came up. Here’s a journal entry Danielle submitted to the court read by an actor:

[actor reading as Danielle Clifford] After the prayer, Piper responded with crying, saying she misses her parents and is having a hard time remembering them. Jason acknowledged her pain and loss, and said they could look at pictures of her parents tomorrow.

Rebecca Nagle: Meanwhile, Robyn hadn’t given up. The same month Piper went to live with the Cliffords, Robyn walked into a nonprofit serving Native families on the north side of town.

Robyn: Kept going and then I went into the Upper Midwest on Broadway. My world changed when I walked through them doors. They said that they could help me, and they did. And Gertrude, she didn’t stop until we got the help. And I thank her. Yep, I almost lost [bleep]. I was really close to it.

Rebecca Nagle: The Upper Midwest American Indian Center did two things, Hennepin County hadn’t. First, they helped Robyn apply for a foster license. Robyn’s old convictions had already been expunged, but because of a clerical error, one still popped up. Upper Midwest made a few phone calls, ironed it out, and once all the paperwork got turned in, Robyn was approved. And second, they shared that important detail with Robyn’s tribe. The detail was, Robyn. That form letter Hennepin County sent to White Earth didn’t mention that a White Earth citizen was seeking custody of her grandchild. That wasn’t illegal on Hennepin County’s part, they just did the bare minimum. Once White Earth learned that one of their citizens was fighting to keep her grandchild, they intervened. And that’s when everything changed. That’s because now Piper’s case was an ICWA case.

Robyn: Oh. It was great. It was the best thing that ever happened.

Rebecca Nagle: New social workers were assigned to the case, social workers trained in ICWA. And suddenly the same county that had been fighting Robyn for years started supporting her. White Earth Nation, Hennepin County, and Robyn all agreed that Robyn should adopt Piper. But Danielle and Jason Clifford did not. They sued Hennepin County, and Robyn’s adoption of paper was put on hold.

Robyn: I know she was with the Cliffords. They had her for a year and a half, and they were fighting the ICWA law and they wouldn’t stop.

Rebecca Nagle: And the fight got ugly. More after the break.

Rebecca Nagle: When the case finally went to trial, it was an emotional five days. Reading through the testimony, it feels like a custody dispute between divorced parents. And the thing that always happens in conflict happened here, details that normally would be small get magnified. Like the fact that Robyn’s car was in the shop, or that she had arthritis—how could she possibly keep up with an active child? But the detail that came up over and over was Piper’s weight. At the time, piper was seven the Cliffords thought since she moved back in with her grandma, she looked heavier. Here’s Jason Clifford’s testimony, also read by an actor:

[actor reading as Jason Clifford] She was excited to see us. It was shocking to see how much weight she had already gained in a short period of time. In her dance leotard, it was very clear.

Rebecca Nagle: Jason was describing seeing Piper for the first time in six months at her dance recital. Piper’s weight was one reason why the Cliffords said they were a better home, because, unlike Robyn, they managed it.

[actor reading as Jason Clifford] We provided information to Miss [bleep] about diet and the reasons why it was important, and it was not followed. We now can visually see that it was not followed.

Rebecca Nagle: When Robyn testified, she was asked about Piper’s weight. She talked about Piper’s recent checkup. The doctor said she was a healthy kid. When Family Court ruled on Piper’s case, she had lived with her grandmother for four of the seven years of her life. She had lived with the Cliffords for 18 months. But the Cliffords and their lawyers argued, and are still arguing, the Cliffords are the only stable home Piper has ever known. The family court judge did not agree. She ruled in Robyn’s favor. Robyn won. At the end of her 23-page decision, Judge Angela Wilms wrote that if White Earth had come forward sooner or if the department had seriously considered Robyn as a placement, none of this would have happened. But instead, Piper has, quote, “been traumatized by our system due to numerous failed placements” and that Robyn has, quote, “been equally traumatized by the same system that for years ignored her as a placement option for her granddaughter. And the Cliffords have lost a child whom they loved and considered their own.” The Cliffords appeal that decision all the way to the Minnesota state Supreme Court, but it didn’t work. Finally, about a year ago last June, Robyn adopted Piper.

Piper: We made a drum.

Robyn: She’s going to go get it. She wants to show you. She’s starting to speak Ojibwe language. I got words up on the wall there, you know? I wrote them down for her and we’ll say them together, you know? Did you find your drum, our drum? I thought it was on the wall.

Piper: Oh, yeah, it’s on the wall. In this giant handle right here in the back, you put a rock in there, and this drum is made of deerskin. And yeah, well, she was making it and I went to her and helped her finish it. And we left it there to dry. Um, and it has both of our names on it. [plays drum]

Rebecca Nagle: In Robyn’s apartment, the pictures of Piper’s family aren’t in the special book she can see when she asks, they’re like pictures and most family homes, they’re up on the wall.

Robyn: Who’s this? This is [bleep] as a baby.

Piper: No. No, it’s not.

Robyn: Wait, no, that’s—

Piper: That’s mommy as a baby.

Robyn: Oh, that’s right, that’s my daughter.

Piper: This is me as a baby. That’s me as a baby with my mom. That’s me as a baby and wait—who’s that?

Robyn: That’s you.

Piper: Oh, looks nothing like me but, OK. That’s grandma. That’s me again. That’s my mom. That’s us again.

Robyn: I swear, I pray every day that I can live long enough, you know, to keep going, for her. I want her to be successful, because she’s so smart. Down the road, you know, if she wants to go to school, she can go to college and become somebody. Yeah, mm hmm. That’s who my prayers are, for her.

Rebecca Nagle: We can get caught up in whether the Cliffords or Robyn are the better home for Piper, but that’s missing the point. Robyn and the Cliffords are not divorced parents. Robyn is Piper’s grandmother and has been her primary caregiver for most of her life. And the Cliffords were Piper’s foster parents. And despite all the inappropriate promises made to them, fostering a child, by definition is temporary. In 2020, the Cliffords did adopt a child, two actually, twin boys from Colombia. But they’re still in federal court fighting ICWA because they say not being able to adopt Piper violated their constitutional rights. In the big federal lawsuit, the one the Brackeens started and the Cliffords joined, the courts got some of their facts wrong. In early court filings, the Cliffords claimed that Hennepin County revoked Robyn’s foster license, but that never happened. The Cliffords also implied that Robyn was waiting to adopt Piper, leaving Piper in limbo. But Robyn’s adoption of Piper was put on hold because the Cliffords sued Hennepin County. We wanted to ask Danielle and Jason Clifford directly why they appear to have submitted wrong and misleading information to federal court. But because of that gag order, they couldn’t talk to us. Danielle did put her dad on the phone, who she said was very familiar with the case. He told us that we shouldn’t trust what we read in court documents, because those court documents may have been altered. The factual errors that first appeared in documents submitted by the Cliffords got repeated and exaggerated when that Texas judge we talked about last episode declared ICWA unconstitutional. And by the time the case got to an appeals court, whole chunks of the decision were based on information that was just wrong, including that big question of whether or not this lawsuit should exist. That’s what’s so weird about this case. The whole strategy is telling these stories, how ICWA ripped Native children from the only homes they have ever known. But in federal court, those stories have drifted further and further from the truth.

Rebecca Nagle: When I look at Piper’s case, it doesn’t tell the story of why we should get rid of ICWA. To me it shows why it was still needed, because the system is still biased against Native families, especially Native families who are poor. What happened to Piper while she was in foster care was traumatic and wrong. She spent years bouncing between homes without stability. But during those years, her case didn’t fall under ICWA, it fell under Hennepin County Foster Care. At the same time, Piper was stuck in the system, Hennepin County got sued, for a foster care system that was, quote, “underfunded, erratic and negligent.” Over 80% of Hennepin County foster kids spent more than two years in the system without a permanent home. So Piper’s story isn’t an outlier, it was the norm. And Texas foster care, where Antonio’s case took place, is even worse. Federal courts found physical and sexual abuse of foster children in Texas was common. Texas had no system for tracking child-on-child abuse, so older children with a history of committing sexual abuse were being placed in the same homes and even the same bedrooms as younger children. Children in foster care are experiencing unspeakable harm, but abuse, neglect, or even the sheer lack of resources aren’t what these plaintiffs decided to focus on. Instead, they focused on the idea that ICWA makes it harder for non-Native foster parents to adopt Native kids. To see if ICWA was harming Native kids, I got data from Hennepin County. They gave me a spreadsheet showing what’s happened to foster kids who fall under ICWA and those who don’t, for the past three years. It turns out ICWA kids are less likely to be stuck in the system until they turn 18, and they are far more likely to be adopted by a relative. And across the board, child welfare experts say that kids do better with relatives, which is why they widely agree ICWA is a great law. But there’s another group of people who don’t like ICWA: adoption attorneys. They’ve been fighting ICWA longer than anyone else. They don’t like any laws that regulate adoption, really, because they want more children to be available for adoption, not less.

[music]

Rebecca Nagle: Next time on This Land:

Gary: There are more people looking to adopt than there are children. There’s clearly a supply and demand problem.

Rebecca: Do you meet a lot of people who were adopted out after the passage of ICWA?

Sandy White Hawk: Oh, yeah. There’s a shitload of people who are ad—it’s still happening. Shoot. Who knows how many today? Just today. We’re a commodity today.

[music]

Rebecca Nagle: This Land is reported, written, and hosted by me, Rebecca Nagle [speaks in Cherokee], citizen of Cherokee Nation. Additional reporting this season from Maddie Stone, Martha Troian, citizen of Obishikokaang Lac Sul First Nation, and Amy Westervelt. From Crooked Media, our executive producers are Jon Favreau, Sarah Geismer, Lyra Smith, and Katie Long, with special thanks to Alison Falzetta. From Critical Frequency, our managing producer is Amy Westervelt, our senior producer is Sarah Ventre, and our story editor is Rekha Murthy. Additional editing from Martha Troian and Pauly Denetclaw, who is Dine. Sound Design by Lyra Smith, Marc Bush, and Charlotte Landes. Original score composed by Jarod Tate, citizen of Chickasaw Nation. Our outro song is an honor song for adoptees, written and sung by Jerry Dearly, who is Oglala Lakota. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaten, founder of the First Amendment Project. Podcast art by Keli Gonzalez, citizen of Cherokee Nation. Additional reporting from producer Allison Herrera, who is Xolon Salinan. Additional thanks for this episode to Judge Bruce Manning, Shana King, citizen of Mandan, Hidatsa and Arikara Nation, and Justice Anne McKeig, descendant of White Earth Nation. Jason Clifford’s testimony was read by Dan Schwartz.

If you’re enjoying the show, please rate, review and subscribe. It helps more people find us. And please share it with your friends. If you have a tip or information to share related to our reporting, you can do that securely and anonymously through our secure drop. You can find a link in the show notes. This season of This Land touches on different forms of family, childhood, and racial trauma. If you feel like you could use support, please check our show notes or website, ThisLandpodcast dot com, to find resources for adoptees and survivors of childhood trauma, abuse, foster care and boarding schools.

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