5. Pro Bono | Crooked Media
Sign up for Vote Save America 2024: Organize or Else, find your team, and get ready to win. Sign up for Vote Save America 2024: Organize or Else, find your team, and get ready to win.
September 13, 2021
This Land
5. Pro Bono

In This Episode

The fight against the Indian Child Welfare Act is much bigger than a few custody cases, or even the entire adoption industry. We follow the money, and our investigation leads us to a powerful group of corporate lawyers and one of the biggest law firms in the country.


Show Notes





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


Rebecca Nagle: Think back to the beginning of the pandemic, not the first time you heard about a new potentially serious virus or the first case in the United States, but those couple of weeks in March when the reality of coronavirus hit all at once.


Talia Landry: So this was like the day in Massachusetts, at least, the day before like everything completely shut down. Like everybody’s in panic because this is when COVID just happened in March and nobody knows what the hell is happening, but that everyone has to disinfect their hands and stay away from each other and all this stuff.


Rebecca Nagle, narrating: This is Talia Landry, citizen of the Mashpee Wampanoag tribe. In those chaotic weeks of March 2020, her tribe was waiting on word from the federal government.


Talia Landry: We’re literally sitting here waiting for the phone call to say, hey, you have funding, like you can supply these disinfectants and all these things to your tribal members so they can be clean and try and stay safe during this pandemic. And then they call us and are like, no, actually, you’re not going to have your reservation land anymore. We’ll be disestablishing your reservation lands due to the decision that was made in this first district court, blase blah. I think everyone was looking at each other like, what the hell just happened?


Rebecca Nagle, narrating: To Talia, their land was how the Mashpee survived four centuries of colonization and now it was being taken away.


Talia Landry: And at a time where we can’t even get together, we can’t even meet to console each other. It literally seemed like it was a tactic to wipe us out completely.


Rebecca Nagle, narrating: The call came from the Department of the Interior under Trump. The back story is complicated, but basically a court case had punted this bizarre question to the Interior: based on a law from 1934, did the Mashpee qualify to have what’s called land in trust? In other words, could the tribe have a reservation? And the Department of the Interior said no. Native leaders across the country were stunned, because without reservation status, tribes can’t protect or govern our land. And that decision set a dangerous precedent:


Talia Landry: Any tribe that was federally recognized after 1934 of losing their lands. And that’s a lot of tribes.


Rebecca Nagle, narrating: Most tribes in the United States, actually. Those Indigenous nations were around long before the US was a country, of course, but many weren’t officially recognized until after 1934. So the Mashpee had to make the case in court that they were and had always been an Indigenous nation.


Talia Landry: It was bonkers because what they’re arguing about is, you know, sending kids to religious boarding schools, cutting their hair, like doing, operating on them without their parents knowing.


Rebecca Nagle, narrating: Talia is talking about the boarding school era I told you about in the first episode. Lawyers debated whether or not Mashpee kids going to boarding schools was enough to prove that they were considered Native American before 1934.


Talia Landry: You know, it was one of those things that I was like, you guys are talking fancy, you’re using big words, but what you’re saying is super inappropriate and casual for the situation.


Rebecca Nagle, narrating: What makes the case even more cruel and absurd is who the Mashpee Wampanoag are in the context of US history.


Talia Landry: We were one of the first contacts of the English settlers and the, we’re the ones that greeted, well we’re part of the nation that greeted the Mayflower.


Rebecca Nagle, narrating: Of course, it’s been distorted beyond recognition, but the early interactions between Talia’s ancestors and those pilgrims on the Mayflower is the basis of the Thanksgiving story. And now her tribe was being told they hadn’t been Native long enough to have a reservation.


Talia Landry: What constitutes being Indian enough? I’ve never heard anybody ask a white person, how white are you? Like, what percent white are you? So for them to come and say you’re not Indian enough, it’s like, who are you to tell another nation or another race or ethnicity or anything that they are who they are? Like, how entitled can you be?


Rebecca Nagle, narrating: How did this happen? I could tell you about the lawsuits, executive actions, congressional legislation, and even the Trump tweet that got us here. But it all started with a casino developer. He was mad that a tribe could build a casino where he could not. So he sued. And that lawsuit set off a chain of events. The casino developer’s original goal wasn’t disestablishing the reservation of the tribe that welcomed the pilgrims, he just wanted to build a casino to make some money. The land rights of the Mashpee Wampanoag were just collateral damage.


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. Like that casino developer’s fight, the attack on ICWA has collateral damage, fallout that could go way beyond one law. But it’s harder to see because at the center of these cases isn’t casinos, it’s children. More after the break.


Rebecca Nagle: Remember when I told you ICWA has been challenged more times than the Affordable Care Act? Well, that coordinated attack on ICWA has an origin story. It all started with one case.


[clip of David Greene] We are also tracking a custody dispute that goes before the U.S. Supreme Court today. At issue is the reach of the Indian Child Welfare Act, known as ICWA.


Rebecca Nagle: You may remember the story of this case from last season. It was called the Baby Girl case. A couple in South Carolina wanted to adopt a Cherokee baby, but their attorney hadn’t followed ICWA. Once ICWA was applied, she went to live with her dad, a citizen of Cherokee Nation, in Oklahoma. The case got wall-to-wall media coverage, and most of the media followed the same story as Dr. Phil. Here’s NPR:


[clip of NPR] First, there’s the tragic saga of this case. In 2009, Christy, a casino worker in Oklahoma and single mother of two, learned she was pregnant and told Dustin. But the relationship deteriorated and she broke off the engagement. Beyond these facts, the protagonists in this story agree on little.


Rebecca Nagle: They focused on the family drama of it all and not so much the legal issues.


[clip of NPR] The Capobiancos were ordered to give their then two-year old child to her biological father, a man she’d never met.


[Mr. Capobianco] It was by far the worst day of our lives, and I’m sure of hers.


[Mrs. Capobianco] She cried after us.


Rebecca Nagle: Imagine if the next time abortion went to the Supreme Court, instead of focusing on the broader issues of reproductive freedom, every news outlet just wanted to tell the story of one abortion. That’s basically how the media covered Baby Girl. They missed what was really going on. Normally to understand a Supreme Court case, you look at two things: the legal arguments being made, and who is making them.


[introduction] And now I cannot think of any higher honor that a lawyer could have than to introduce a man who has to be the lawyer’s lawyer, the solicitor’s solicitor. He has argued over 90 cases before the United States Supreme Court: Paul Clement.


Rebecca Nagle: Clement is a former Solicitor General, meaning the US federal government was his client. And he’s argued in front of the Supreme Court more than anyone in recent history. When made public, his hourly rate has been more than $1,000 an hour. But he takes on ICWA cases for free.


Chrissi Nimmo: It again just kind of amplified the fact that here’s this case that’s a private adoption, that’s already gone through the state court system, that all of a sudden is this huge case at the Supreme Court.


Rebecca Nagle, narrating: This is Chrissi Nimmo, the Deputy Attorney General and a citizen of Cherokee Nation. She worked the Baby Girl case from the beginning, and she remembers when Clement took it. She had never heard of him before but other lawyers on this big strategy call had.


Chrissi Nimmo: So, you know, it was someone speaking up, well, you know, you know, the reason he’s involved in this Indian law case is because he’s had these clients or he has these specific interests in Indian gaming.


Rebecca Nagle, narrating: Remember that casino developer from Massachusetts who sued because a tribe could build a casino where he couldn’t? Well, the lawyer who represented him was Paul Clement, and he used the same legal argument in both cases. In the casino case, Clement said that a tribe getting to build a casino where his client could not was racial discrimination. He called it a race-based set-aside that was no different from, quote, “a categorical preference for Italian Americans, Latinos, or Mayflower descendants.” And then in the Baby Girl case, he said:


[clip of Paul Clement] And that’s what makes this child an Indian child here. It’s biology. It’s biology, combined with the fact that the tribe, based on a racial classification, thinks that somebody with 325, 300, 2—1%!—Indian blood is enough to make them a tribal, a tribal member eligible for tribal membership. And as a result of that . . .


Kevin Washburn: Some of these legal theories would put tribal gaming at risk in the same way they put the ICWA at risk.


Rebecca Nagle, narrating: This is Kevin Washburn. He was the Assistant Secretary of Indian Affairs at the time and is a citizen of Chickasaw Nation.


Kevin Washburn: And it might be too obvious to do it in the gaming context but if they can get the same legal result in the child welfare context, maybe they can then import it to the gaming context and strike at the legality of Indian gaming. So sometimes the Indian Child Welfare Act cases may be a stalking horse for gaming interests.


Rebecca Nagle: How much money is to be made if tribes aren’t allowed to operate casinos on tribal land without state regulation.


Kevin Washburn: Tribal gaming revenues last year were in excess of $30 billion so it’s significant.


Rebecca Nagle: Clement’s race-based argument could impact a lot more than just casinos. Remember when I said tribal leaders don’t think these cases are about Native children? They don’t even think it’s about the Indian Child Welfare Act. The consensus among Native leaders is that the attack on ICWA is really about tribal sovereignty. In other words, the future existence of tribes. To understand why, first you have to understand tribes’ unique legal status. In the creation of the United States, the federal government signed over 300 treaties with Indigenous nations. It’s the same constitutional process we used to sign treaties with other nations like Japan and Germany. And those treaties, that nation to nation relationship, is the foundation of tribal sovereignty, in other words, Indigenous rights. Here’s Nimmo again:


Chrissi Nimmo: The United States Supreme Court, federal courts, and state courts, have repeatedly said that someone’s status as an Indian is not racial because it’s based on membership in an Indian tribe, which is a separate government, and that that is a political classification, not a racial classification.


Rebecca Nagle: Just like I have certain rights because I’m a citizen of the United States or a resident of Oklahoma, I have certain rights because I’m a citizen of Cherokee Nation. The Indian Child Welfare Act is not about biology or race or what percent Native you are it’s about tribal citizenship. The law only applies to children who are either enrolled in a tribe or eligible to enroll, and tribes determine their citizenship, just like the US or Mexico or any other country does. And that’s where the collateral damage comes in, because if ICWA is unconstitutional, because it’s based on race:


Chrissi Nimmo: It literally could call into question all of federal Indian law. And again, we’re talking about laws that apply to individual Indians—you know, possession of eagle feathers—but we’re also talking about much, much broader laws that apply to tribes as government. So issues like reservation status, land use, water rights, gaming, any issue that you could ever think about involving tribes is questionable if a court finds that ICWA is unconstitutional because it’s race based.


Rebecca Nagle: ICWA is just the first in a series of dominoes. If one of these cases can topple ICWA, everything else goes with it. Normally, a lawsuit threatening the legal status of tribes would be big national news but in a country where most non-Native people don’t understand the legal status of tribes, it was easy to miss. The coverage of Baby Girl minimized the threat to tribal sovereignty.


[clip of NPR] Native Americans bristle at the charge of racial classification. Indian tribes, they note, are quasi-sovereign nations recognized by the U.S. Constitution.


Rebecca Nagle: Because they were so focused on the heartbreaking custody battle.


[clip of NPR] Whatever the Supreme Court rules in June, the case of Baby Girl, as she is known, is heartbreaking. No one disputes that she was sublimely happy with her adoptive parents, and videos of her with her father, now married, seem to show a little girl equally happy.


Rebecca Nagle: In the end, Baby Girl’s father and Cherokee Nation lost.


Chrissi Nimmo: So it was a lose in this case, but it was very narrow and it very much preserved ICWA.


Rebecca Nagle, narrating: The Supreme Court didn’t declare the Indian Child Welfare Act unconstitutional. They just said it shouldn’t apply to this case. But in the way they worded their opinion, they showed a lot of sympathy for Clement’s ideas about race and biology. The Baby Girl case was blood in the water. Before it, constitutionality of ICWA was rarely challenged. In the eight years since, more than a dozen cases have been brought.


[news clip] Emotions run high as a local family fight to keep their foster daughter after authorites say . . .


Rebecca Nagle: Most of those cases got thrown out, but that didn’t matter because as soon as one failed, two or three more were waiting in the wings, and they all argued ICWA was racial discrimination.


[news clip] A California family was left reeling when their 6-year old foster daughter was removed from their home, all due to the enforcement of a controversial law that says because of her Native American blood, she must be placed with relatives who happen to live hundreds of miles away.


Rebecca Nagle: In the United States, there are two corporate law firms that represent the oil industry more than anyone else. One of those firms doesn’t just represent companies like Chevron, they work for every corner of the industry: pipelines, trade organizations, lobbying groups—you name it. And that firm is now representing the Brackeens in their big federal lawsuit. That story after the break.


Rebecca Nagle: Casinos aren’t the only corporations that would make more money if tribal sovereignty went away.


Chrissi Nimmo: Any of the other kind of areas of Indian law that you’re talking about that are big nationwide issues: land use, water rights, gaming, those—there’s big, big money involved in that.


Rebecca Nagle, narrating: When Nimmo says big money, she means half of all gaming revenue in the United States, and tribal land. Tribes have jurisdiction of about 2% of all land in the United States, but that land holds about a third of all fossil fuel resources in the country, like coal, natural gas and oil, worth around $1.5 trillion.


Chrissi Nimmo: When you’re not associated with a tribe in that industry, you often are at odds with tribal interests.


Rebecca Nagle, narrating: Matthew McGill, the lawyer representing the Brackeens in that big federal lawsuit, has used the same arguments in casino cases that he’s now using in ICWA cases, specifically that state’s rights argument we talked about earlier in the season. He’s used it to stop a tribal casino from opening in Arizona, and Gibson Dunn, where Matthew McGill works, represents two of the top three casino and gaming companies in the world. Gibson Dunn also specializes in the other industry that comes up against tribes a lot: oil. You’ve probably heard about the fight over the Dakota Access Pipeline because the resistance camp at Standing Rock made national headlines. Gibson Dunn represented the pipeline company. What happened at Standing Rock worried the oil industry. One study estimated indigenous resistance cost the Dakota Access Pipeline $7.5 billion. It also inspired movements against other pipelines. Industry leaders, including lobbying groups that represent Gibson Dunn clients, have talked openly about why these indigenous-led protests need to be stopped. Seven months after the resistance camp in North Dakota was shut down, Gibson Dunn filed the Brackeen’s case in federal court. Matthew McGill, that lawyer at Gibson Dunn, is currently working on three challenges to ICWA that we know of, and one of those cases shocked me. It’s a case in Missouri that I’m not supposed to know about because it’s still in family court. Working alongside McGill is Paul Clement. Paul Clement showing up in family court is like the head of cardiology at Harvard popping up to take your blood pressure. It’s extraordinary. And here’s the thing about these lawsuits, it only takes one case to topple ICWA and all the dominoes that come after. And because the people mounting challenges to ICWA have so much money, they can bring as many cases as it takes. The day after Talia’s tribe got that call from the Interior, Talia went for a walk. She needed to clear her head. She was headed down the main street in town when she saw her cousin playing outside with her kids.


Talia Landry: She stops us and we just start talking about everything that was happening. And we just started like brainstorming and just kind of like feeling, and feeling what that meant, what that felt like to have land underneath you and then kind of take it, have it taken away within the matter of like seconds it seemed.


Rebecca Nagle, narrating: What made the whole thing harder was COVID. In normal times they would have all gotten together, but they couldn’t do that now.


Talia Landry: And so we just thought, like, what can we do? And so we thought of the spirit fire protest and we initiated it and said, you know, ask supporters, ask the public, just to light a fire or any sort of fire or flame, you know, a candle, fire outside, anything, the day before the court date was. Just to support the decision makers, that they’ll see the truth and what’s right and what’s moral and like what is meant to be.


Rebecca Nagle, narrating: The Mashpee Wampanoag took the Department of the Interior back to court.


Talia Landry: And it was just astounding the amount of support that we received. And a lot of people kept their fires going until we received our decision. It was just amazing. And honestly, if you ask me, I think it worked. I think our spiritual ceremony and our protests in that way helped and actually was one of the main reasons why we were able to get such a quick response and such a positive one when we were getting negative ones after negative, after negative, in the lower courts,


Rebecca Nagle, narrating: A federal court ordered the Department of the Interior to reverse its decision. The Mashpee Wampanoag reservation remained intact. That casino developer dropped his effort to open a casino in Massachusetts. Years ago, actually. He and Paul Clement weren’t even around when the Mashpee almost lost their reservation. The Mashpee Wampanoag story shows just how fragile tribal land and treaty rights are. Indigenous nations that have existed since the beginning of time have watched the ground underneath them change with one court decision, or the whims of one administration. That’s why the Brackeen’s case is scary. If the Supreme Court decides that the Brackeens or the Cliffords or the foster children were discriminated against based on race, it could set off a chain reaction, one that could impact the constitutionality of tribal land, police, health services, gaming, even tribal governments. Sure, we could still have powwows and museums, but we would no longer be able to govern ourselves. We’d be just another group of people. I wasn’t surprised to find the attack on ICWA is really about tribal sovereignty. What I didn’t expect to find was that this attack on tribes is just part of a bigger agenda. Next time on This Land:.


Maggie Blackhawk: They’ve also come to federal Indian law because it does lack visibility and people don’t realize the amount of damage that it can do.


Clint Bolick: Right now, government discriminates against both Blacks and whites, depending on, depending upon the particular issue.


Charles Siler: Like, there’s no end point. Like, oh, if they could beat ICWA, then that’s what they’re looking for. No, it’s not about ICWA. That’s just one step on this path.


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 editing this episode by Savannah Maher, citizen of the Mashpee Wampanoag Nation.


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. For more information about the battle over Mashpee Wampanoag Nation’s land rights and links to coverage of the Baby Girl case, visit the show’s website. 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.


This Land is a trademark of This Land Press, used with permission.