Indian Child Welfare Act Upheld | Crooked Media
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June 15, 2023
What A Day
Indian Child Welfare Act Upheld

In This Episode

  • In a major victory for Native American rights, the Supreme Court voted 7-2 to uphold key provisions of the 1978 Indian Child Welfare Act Thursday. ICWA was enacted to keep Native children with their families and tribes during custody disputes. Rebecca Nagle, host of Crooked’s This Land documentary podcast series, joins us to discuss the decision, and why the challenge against ICWA threatened tribal sovereignty.
  • And in headlines: Miami Mayor Francis Suárez has become the latest Republican to enter the 2024 presidential election, at least 42 migrants were bussed to Los Angeles from Texas, and a historic digital media strike has finally come to an end.


Show Notes:



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Tre’vell Anderson: It’s Friday, June 16th. I’m Tre’vell Anderson. 


Priyanka Aribindi: And I’m Priyanka Aribindi and this is What A Day where we are absolutely 1,000% ready to put an end to this week of news. 


Tre’vell Anderson: Oh yes. I’ve got my herbal supplements ready. Okay. For a long, long break. 


Priyanka Aribindi: Ah. Same. [laughing]


Tre’vell Anderson: It was the ah for me. [laughter] [music break] On today’s show, another Republican from Florida has entered the 2024 presidential race. Plus, a historic digital media strike has finally come to an end. 


Priyanka Aribindi: But first, in another surprise decision and a major victory for the rights of Native Americans, the Supreme Court decisively upheld key parts of the Indian Child Welfare Act, or ICWA. In a seven to two vote. 


Tre’vell Anderson: Listen. Keep surprising me. I like being surprised. Keep me on my toes. Thank you so much. 


Priyanka Aribindi: Right? 


Tre’vell Anderson: Supreme Court. Deeply appreciate it. So, Priyanka, can you give us some background on ICWA and the case against it? 


Priyanka Aribindi: Definitely. So ICWA was enacted 45 years ago to try and protect tribal sovereignty. It was passed after a congressional investigation found that for decades prior, this was enacted in the 1970s so for the fifties, sixties and part of the seventies, over a third of all native children had been removed from their homes, some forcibly and placed with non-Native families through both state child welfare programs and through private adoption. And to right the wrongs that they found. Congress came up with ICWA. ICWA established preferences for the placement of any native children who are being adopted or going into foster care with members of their tribe or other tribal nations. The goal being ideally to keep native children within their tribe. So it establishes three tiers of preference. The last being, you know, for a child to be outside of any tribal nation, hopefully ideally they’d be with their extended families within their own tribal nations. But if not, maybe then with another tribe. 


Tre’vell Anderson: Mm hmm. 


Priyanka Aribindi: But this law was challenged by the state of Texas, as well as non-Native parents who have adopted native children. They argued that establishing preferences was unconstitutional on the basis of race and that the law was infringing on the rights of states to settle family law matters. Of course, tribal nations are sovereign governments. They’re political entities. That is how the Constitution would recognize them. It’s very different than a racial group. So if this decision had gone the other way, as many feared that it would, it could have threatened every aspect of law and policy around how the federal government interacts with Native tribes and all of tribal sovereignty, not just ICWA itself. But luckily for us, we did not have to see how that would go because that didn’t happen. The court actually ruled that Congress has a well-established power to legislate on this, that they didn’t overstep, and they actually ruled that the parents didn’t have the legal basis to even make the argument that the preferences established by ICWA were unconstitutional on the basis of race. 


Tre’vell Anderson: You know what? I’m just glad that the court is making sense now. Right. This is a very logical response to this case. And I appreciate that. 


Priyanka Aribindi: Highly logical but still highly surprising. Like, I don’t think very many people were expecting it to go this way, especially this decisively. Seven to two, but really exciting. 


Tre’vell Anderson: Mm hmm. 


Priyanka Aribindi: I wanted to learn a little bit more about this. So to put it into context for us, I spoke earlier with journalist and Cherokee Nation citizen Rebecca Nagle. She is also the host of the award winning Crooked documentary series, This Land. If you haven’t heard it already, it is phenomenal. Season two is all about the complexities of this particular case. It’s how I became familiar with it. She has really been following this closely for quite some time. I started by asking her for her reaction to yesterday’s decision. 


Rebecca Nagle: You know, I was expecting it to be a loss and I thought it was a matter of how significant the loss would be, both in terms of how much of ICWA the court would strike down and how much damage that decision would do to the arena of federal Indian law. And I was shocked that not only did the plaintiffs in Texas lose on every argument that they raised, but they lost in a seven to two decision. Um. So it wasn’t even close. 


Priyanka Aribindi: Yeah, sometimes the court will give you something good, apparently. 


Rebecca Nagle: It shouldn’t be surprising. I mean, the arguments that they were making were from Mars. If you think of, you know, what the Constitution says about the federal government’s relationship to tribes and the unique political status of tribes and tribal citizens. Um. So the arguments that they were making was pretty radical, but it just seemed like the court had signaled that it was willing to go there. So it’s great that it didn’t. 


Priyanka Aribindi: Yeah. I wanted to actually ask you I mean, I know when you were here last time, we spoke a little bit about those arguments, but can you get into a little bit of the case that the plaintiffs were trying to make here and then the grounds on which they were sort of shut down? 


Rebecca Nagle: Yeah, So it’s a super complicated case. There was a group of non-native foster parents who claimed that the Indian Child Welfare Act was unconstitutional racial discrimination because it wouldn’t let them adopt Native children. Uh. What was wild about that argument is that for the most part, they actually won custody. And I think sort of recognizing that they didn’t have what’s, you know, the legal term is like redressability or standing. 


Priyanka Aribindi: Right. 


Rebecca Nagle: The Supreme Court actually just kind of knocked that argument out for lack of standing. And then the other big chunk of the argument was basically states rights. So Texas was coming in and saying, you know, child welfare is really up to us. You know, as Texas, we get to say what happens in our child welfare proceedings and for a whole host of reasons. You know, they were saying that Congress basically doesn’t have the power to pass a law like ICWA. And when it comes to child welfare, can’t tell Texas what to do. 


Priyanka Aribindi: Got it. Okay. But, I mean, on on every grounds of this case is really kind of remarkable. But I want to talk specifically about something that I found very interesting, Justice Neil Gorsuch’s opinion here I mean, Justice Amy Coney Barrett wrote for the majority, but Neil Gorsuch wrote a very like very passionate 38 page long concurring opinion. Was that surprising to you? What do you make of that? 


Rebecca Nagle: No, I’m not surprised. I mean, I think that Justice Gorsuch is really building up a very specific view of the rights of tribes under the Constitution and how that’s, you know, a bedrock principle in American democracy. 


Priyanka Aribindi: Right. 


Rebecca Nagle: You know, it’s there in the Constitution. It’s there in, you know, 200 years of statutes and court precedent. But often what happens in the federal judiciary is that when laws that uphold the rights of tribes inconvenience non-native people or non-native people don’t like those laws, you know, like the Brackeens in this case, um courts bend or break the rules. And I think Gorsuch is setting precedent that that’s not only not the law, but that’s not the role of the court. And so I think what was really important about the concurring opinion in this case is that Justice Gorsuch gave basically a history lesson of the very long history of the U.S. systematically separating native children from tribes. And I think that that was a really important thing to have acknowledged in the record of this case, because it is definitely the background. All of this is happening against the backdrop of, you know, generations of native children being separated from their families and their tribes. 


Priyanka Aribindi: Definitely. I’m curious too about how you see this kind of in the context of the larger legal landscape for tribal nations. How are you looking at that? 


Rebecca Nagle: You know, we have been on a rollercoaster. We have had some really high highs um in the past few years, like the McGirt case and this case. We’ve also had some lows like the Castro opinion that came out last year. I think Coney Barrett authoring this opinion, it’s her second opinion that she’s authored that has to do with federal Indian law since she’s been on the bench. And I think if she’s going to take sort of a similar position to Gorsuch as a textualist, where, you know, when the Constitution says that treaties are the supreme law of the land, we’re going to follow what the treaty and what the Constitution says. 


Priyanka Aribindi: Right. 


Rebecca Nagle: You know, I think that that could be a really important turning point for tribal sovereignty. I will say one thing is that even when you go back and you listen to oral arguments at the Supreme Court, even just ten years ago, it is very clear that a plurality of the justices have no freaking clue what federal Indian law was, what it is, what a tribe is, how tribal citizenship works. And I would say I think that’s the biggest shift that’s happened, is that there is a much bigger knowledge base at the Supreme Court. And I think you can point to a lot of whether it’s briefing or trying to get more Native people to clerk at the Supreme Court. There’s been a lot of advocacy that has led to that. 


Priyanka Aribindi: Yeah. Work that is is paying off, which you always love to see. 


Rebecca Nagle: Yeah. 


Priyanka Aribindi: And and just one last thing before we let you go. Is there anything that you feel like we didn’t cover in this interview that you think will be important for people to kind of understand or context just, you know, that you want to share? 


Rebecca Nagle: Yeah, I mean, I would just say that the arguments that the foster parents and that Texas put forward in this case were really radical. And the Supreme Court thoroughly, thoroughly rejected those arguments. And in my opinion, that’s not just a victory for Native nations and Native families, but it’s also a victory for our democracy and the rule of law. You know, from the founding, this country has acknowledged and embedded into the law the unique relationship that it has with native nations, whether that’s in the constitution and treaties and court precedent and laws that Congress passed. And the plaintiffs were asking the Supreme Court to set literally all of that aside. And the Supreme Court said no. 


Priyanka Aribindi: That was my conversation with Rebecca Nagle, host of Crooked’s documentary series, This Land. I also want to mention that Rebecca is working on a bonus episode of This Land, which you can hear later next week. You definitely do not want to miss that. It’s going to be a great listen. In the meantime, we’ll be back after some ads. [music break]. 




Tre’vell Anderson: Let’s get to some headlines. 


[sung] Headlines. 


Tre’vell Anderson: We have some Florida man news to kick things off. 


Priyanka Aribindi: Great. 


Tre’vell Anderson: Miami Mayor Francis Suárez has become the latest Republican to enter the very crowded and increasingly cartoonish field of candidates for the 2024 presidential election. He filed the necessary paperwork on Wednesday, a day after former President Donald Trump was arraigned in his city on federal charges. Though he called the indictment against Trump, quote unquote, “un-American,” during an appearance on Fox News last weekend. Of course he did. None of us are surprised about that. 


Priyanka Aribindi: Lame. Boo, throwing tomatoes.


Tre’vell Anderson: Right. Tomato, tomato, tomato!


Priyanka Aribindi: Yeah. Yeah. [laugh]


Tre’vell Anderson: Suárez, who is Cuban American, happens to be the first GOP Latino candidate to enter the 2024 race and is now the second Republican contender from Florida. On that note, let’s just say that Francis Suárez and Governor Ron DeSantis are not pals. The mayor got into some big fights with DeSantis during the height of the COVID crisis. The governor blocked his attempts to enforce a mask mandate in Miami during the winter surge in cases in 2021. And Suárez has also openly criticized the efficacy of Florida’s controversial new immigration enforcement laws, which we will tell you about more next week. 


Priyanka Aribindi: Yeah, listen, picking fights with Ron DeSantis not being on the same side of him. Like you have some right opinions there. I got to give it to you. But um I hate to say it, hope I don’t sound ridiculous, I don’t know who this man is. [laughter] I don’t live in Miami. Anyways. More than 180,000 people have been evacuated across India and Pakistan as the first severe cyclone of the year made landfall along both countries’ shared northwestern coastline yesterday. Cyclone Biparjoy, which means disaster in Bengali, had been brewing over the Arabian Sea before, delivering heavy rains, high tides and powerful 90 mile an hour wind. Though the storm is classified as a category one storm, on a scale of five, it’s still expected to deal substantial damage to homes, crops, and unstable public infrastructure that’s in its path. Railway service and schools in the affected areas have been suspended, as well as offshore oil and port operations. We’ll likely see the effects of this storm in Karachi, Pakistan’s largest city with 20 million people, along with several of the large ports in India throughout the day. Experts say that human driven climate change is making cyclones like these more frequent and more severe because water temperatures in the Indian Ocean and Arabian Sea are steadily rising. 


Tre’vell Anderson: At least 42 migrants, including children and toddlers, were bussed to Los Angeles from Texas this week. The group was sent by Republican Governor Greg Abbott, who announced the quote unquote “relocation” in a press release the same day, saying migrants were sent to L.A. because it is a sanctuary city for immigrants. The group arrived at LA’s Union Station Wednesday afternoon, where they were met by aid organizations and city representatives who were informed of their arrival in advance. At least now they’re letting people know in advance. Instead of just sending people. 


Priyanka Aribindi: I guess. 


Tre’vell Anderson: A spokesperson for the immigrant rights group CHIRLA told the L.A. Times that the migrants were on the bus for 23 hours without food. Most of them are said to be from Venezuela, Guatemala and Honduras. In a statement, L.A. Mayor Karen Bass said, quote, “It is abhorrent that an American elected official is using human beings as pawns in his cheap political games.” This group’s arrival marks the third time in less than two weeks that Republican governors from Texas and Florida have sent migrants to California. 


Priyanka Aribindi: The seriousness of this really can’t be overstated. But aside from that, like they’ve all done this stunt, now it’s so unoriginal. Like why are do you keep doing it like it’s been done? Why? I don’t want to encourage you to come up with anything new because, like, God only knows, but like, I don’t really know if you’re that creative. It’s just why? You might want to put that venti oatmilk latté down because we have got to put Starbucks on blast again. Listen, if you are still drinking Starbucks, I don’t know what you’re doing because they are fucking up left and right, but that’s on you. That is because the group trying to unionize some of the coffee chain’s workers says that the company has forced employees to take down in-store Pride decorations in at least 21 states. Starbucks Workers United posted on social media earlier this week to detail the disappearance of Rainbow decor this Pride Month. And anecdotally, our producers have noted that even the Starbucks near Crooked headquarters in L.A. is missing its usual pride month displays. Going a little Nancy Drew on this one. We are uh boots on the ground giving you the hard hitting news, but that is pretty weird. Starbucks has denied the allegations and has blamed the lack of pride decor on individual store managers. But according to Starbucks managers interviewed by The New York Times, some have said that that is not the case, while others claim that they made the decision for the safety of their employees following threats against Target retail workers in recent weeks. 


Tre’vell Anderson: And finally, the longest strike in digital media history has come to an end. The union at Insider, the digital news outlet focused on business and tech news, reached a resolution with management on Wednesday. The new contract includes setting a minimum salary of $65,000, an immediate 3.5% salary bump for most staff and a pledge from the company to not lay off any more employees for the rest of the year. We love that. We love that commitment. 


Priyanka Aribindi: Yeah. 


Tre’vell Anderson: The 13 day strike, which almost shut down Insider’s entire newsroom began on June 2nd following a round of layoffs and to protest an increase in workers health care costs. As the strike dragged on, old stories were recycled on the website and even Insider’s millionaire founder Henry Blodget started writing his own articles. 


Priyanka Aribindi: Yikes. 


Tre’vell Anderson: One of his essays told Apple to ignore the haters of its new $3500 virtual reality goggles. 


Priyanka Aribindi: That hilarious in the first place. But like we are the haters so absolutely anti this article and this man. 


Tre’vell Anderson: [laugh] Absolutely. It’s been a grim time for digital media so it is welcome news to see Insider workers take the win. Ultimately, all of the unionizing that’s happening around, particularly in media, love to see it. Love to see it. 


Priyanka Aribindi: Yeah, this is really exciting. It’s not normally how this goes. Big congrats to um our friends at Insider. This is really, really amazing. And the things that they have gotten here, their minimum salaries, the immediate bumps, the no layoffs for the rest of the year. That’s really like those are huge. That’s a huge deal. 


Tre’vell Anderson: Absolutely. And those are the headlines. 




Priyanka Aribindi: That is all for today. We’ll be back with a new episode on Tuesday, June 20th. In the meantime, if you’re new and you like what you hear, make sure you subscribe. Leave a review, buy your coffee from a local business already. Get it together and tell your friends to listen. 


Tre’vell Anderson: And if you are into reading and not just articles written by rich people like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Tre’vell Anderson. 


Priyanka Aribindi: I’m Priyanka Aravinda. 


[spoken together] And hands off our Pride stuff. 


Priyanka Aribindi: Yeah, seriously, hands off my anything. 


Tre’vell Anderson: Listen, we’re halfway through Pride Month. You can stand looking at a rainbow for a few more days. 


Priyanka Aribindi: Yeah, we like rainbows. And if this is how you’re behaving 15 days in, I’m just a little terrified just to see how the rest of the month is going to go, to be honest. [laughter] [music break] What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers. Our intern is Ryan Cochran, and our senior producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka. [music break]