SCOTUS And The Future Of Indigenous Sovereignty | Crooked Media
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November 10, 2022
What A Day
SCOTUS And The Future Of Indigenous Sovereignty

In This Episode

  • As the vote count continues from Tuesday’s midterm elections, both parties are eyeing next month’s Senate runoff in Georgia, but Arizona and Nevada are also in the spotlight. Democrats can clinch control of the Senate if incumbents win in at least two of those states.
  • The Supreme Court this week heard arguments in Haaland v. Brackeen, a case challenging the Indian Child Welfare Act. Rebecca Nagle, host of Crooked’s “This Land” podcast, explains why it could ultimately upend other legal protections for Native Americans.
  • And in headlines: a federal judge in Texas struck down President Biden’s student loan forgiveness plan, Tropical Storm Nicole barreled through Florida and the Taliban has banned women and girls from using gyms and parks in Afghanistan.

 

Show Notes:

 

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For a transcript of this episode, please visit crooked.com/whataday

 

 

TRANSCRIPT

 

Tre’vell Anderson: It’s Friday, November 11th. I’m Tre’vell Anderson.

 

Priyanka Aribindi: And I’m Priyanka Aribindi. And this is What A Day, the only podcast that is sent to your device on the back of a crisp autumn breeze.

 

Tre’vell Anderson: I don’t really like fall time, and it’s been very cold lately, but I’m so glad that we can be here for you all.

 

Priyanka Aribindi: Yeah, it’s a really creative marketing technique that we came up with, but we’d also would like it to get a little warmer, so we might have to rethink our strategy here. [laughter] [music break]. On today’s show, Florida took another hit from a late season hurricane plus the turmoil at Twitter continues.

 

Tre’vell Anderson: But first a quick election update and that update is, votes are still being counted in a number of states, and so we don’t have clarity on which party will have control of Congress. As for the Senate, we mentioned on yesterday show that the race between Raphael Warnock and Herschel Walker in Georgia will be determined in a runoff next month. While two of the other Senate seats still up in the air are Nevada and Arizona. If Democrats take both of those seats, that would give them control of the Senate right there and take a lot of heat off the Georgia runoff. But at the time of our recording, it’s still too close and too early to call races in both states. In Nevada where many people tend to vote by mail, reports say around a hundred thousand ballots remained uncounted. As of Thursday evening, Clark County where roughly half of the outstanding ballots are from, said it would finish the bulk of its counting by Saturday. The Senate race there is between incumbent Democrat, Catherine Cortez Masto and Adam Laxalt. A former Attorney General who sided with Donald Trump’s baseless election fraud claims in 2020. The spread between the two of them is around 16,000 votes at the time of our recording, so very, very close there.

 

Priyanka Aribindi: Okay, so while we’re on the topic of Nevada, what about the governor’s race there? What’s happening?

 

Tre’vell Anderson: The governor’s race there is between Democratic Governor Steve Sisolak and Republican Joe Lombardo. Joe is a Las Vegas area sheriff endorsed by Trump.

 

Priyanka Aribindi: Yikes.

 

Tre’vell Anderson: At the time of our recording, he’s leading by just about 34,000 votes, so still very close there. And then in Arizona, many people have a tendency to drop their ballots off on election day, and so approximately 600,000 votes, again at the time of our recording, are left to be tallied there. FYI, I keep saying at the time of our recording, because by the time you listen to this, we might have you know, some new results, some additional tallied votes that might change things.

 

Priyanka Aribindi: Honestly, fingers crossed for that.

 

Tre’vell Anderson: Absolutely.

 

Priyanka Aribindi: I love some results. [laughter]

 

Tre’vell Anderson: Absolutely. Which means for the Arizona Senate race, like in these other contests, the votes can go in either parties favor between incumbent Democrat, Mark Kelly and Republican Blake Masters, who you guessed it is also Trump endorsed.

 

Priyanka Aribindi: Got it. Okay. And so for those of us like me who like to keep a tally on where control of the house stands, right this very moment. Where are we with that?

 

Tre’vell Anderson: At the time of our recording, Republicans have 209 seats and Democrats have 191. Both parties are trying to get to 218 for control, so that means 35 seats remain undecided. We’ll likely begin to see some winners of those seats later today and throughout the weekend, but it could be as late as early next week before more races are called.

 

Priyanka Aribindi: Yeah, but I mean. The good news here is that some of these projections are looking not so bad for us, so I–

 

Tre’vell Anderson: Mm hmm. Mm hmm.

 

Priyanka Aribindi: –Honestly. The wait may be worth it. And um, that is the only thing I’m counting on. [laughter] But switching gears a little bit, I wanna talk about what the Supreme Court has been up to while we’ve been watching midterm returns. Because there is one case that they are considering that for most people, maybe flying under the radar, but it carries huge implications for Native Americans.

 

Tre’vell Anderson: Okay, so tell us more about what’s going on?

 

Priyanka Aribindi: Yeah, so the Supreme Court heard arguments challenging the Indian Child Welfare Act, also known as ICWA. ICWA was enacted in the late seventies after a congressional investigation found that a third of all native children were being removed from their homes by either federal or state child welfare agencies, and were being placed in homes or institutions with zero connection to their tribes. Even in cases where extended family members or members of their communities were willing and able to take these kids in. ICWA ended up setting federal requirements for child custody proceedings that involved native kids. It added protections for these children, and it ensured that if a native child is removed from their family, preference is first given to their extended family than to other members of their tribe. And if neither of those options is available, a different federally recognized tribe. The plaintiffs in this case have argued that ICWA is unconstitutional because it discriminates on the basis of race. But this country has long considered tribes to be political entities rather than, you know, a racial group. If ICWA is overturned, it could have huge consequences for native sovereignty and identity that go far beyond child welfare. To learn more about this and what’s at stake, I spoke with Rebecca Nagle. She is a writer, activist, and Cherokee Nation citizen, and she also hosts the Crooked Podcast, This Land. I started by asking who is behind this case and how it ended up here in front of the Supreme Court.

 

Rebecca Nagle: The case is brought by a handful of foster parents who basically say that this law, the Indian Child Welfare Act, which was created to prevent family separation in native communities, discriminated against them because it wouldn’t let them adopt native children that they were fostering. What’s odd about that claim is that they actually did adopt most of the children in the underlying cases. There was only one case where they weren’t able to, but the case has really broad implications for Indigenous rights because of the way that the plaintiffs are saying that ICWA should be declared unconstitutional.

 

Priyanka Aribindi: Right. That’s super interesting that you bring that up that in this case, actually most of the people already got what they wanted. So I wanted to take a step back for a minute. You know, like many other cases that are being heard by the Supreme Court this term, Braackeen v. Haaland is the result of a year’s long effort by the far right to overturn established precedent. And you’ve covered this and other challenges to ICWA over the years. What exactly is motivating this case? How did it get here?

 

Rebecca Nagle: And so that’s really important context for the case. And this landslide of litigation has been brought by a corporate law firm named Gibson Dunn, a small cadre of right wing organizations, and then a handful of adoption attorneys and some lobbying, um, and professional associations that represent the adoption industry. And so I think everybody is unfortunately part of it for their own and different reasons. But what we can see in terms of what Gibson Dunn’s motivation is, is that this past January, they filed a lawsuit on behalf of a non-native casino developer, making basically the exact same legal arguments that they’re making in Brackeen, and they just swapped out kids for casinos.

 

Priyanka Aribindi: So do you think what they’re going for with this decision is not only what’s implied here for children, but has far reaching consequences in other facets of life?

 

Rebecca Nagle: Absolutely. And that was a big part of the debate at the Supreme Court on Wednesday was you know, a lot of the justices were asking, well, if ICWA is unconstitutional for this reason, what about healthcare? What about gaming? What about funding for education for Native Americans? And so what the plaintiffs are saying is that ICWA discriminated against them based on race. And the reason that that’s kind of a bomb of an argument is that there is a whole host of federal laws that treat tribes and tribal citizens differently, and they’re not based on race. They’re based on the unique political status of Indigenous nations and our citizens.

 

Priyanka Aribindi: Right?

 

Rebecca Nagle: And so the fear is, is that, well, if ICWA discriminates, well then what about the clinic where I get my healthcare? Or what about gaming regulations that let tribes operate casinos and states where non-Native casino developers can’t? If we’re just a racial group, What racial group has their own land rights? Their own water rights?

 

Priyanka Aribindi: Yeah

 

Rebecca Nagle: Their own government. And so the fear is that this case is kind of like the first in a series of dominoes, and if they can topple ICWA, then everything else will go with it.

 

Priyanka Aribindi: Wow. I know you are in DC right now. You were there for oral arguments. So let’s talk a little bit about how Justices responded to Wednesday’s arguments. You know, the bench seems to be split here. It does appear that Neil Gorsuch may join the court’s three liberal members to uphold ICWA’s Constitutionality, but there were several exchanges that were problematic, to say the least, especially from Justice Alito. So what can you tell us about how all of this played out? Like bring us into the courtroom with you. What did you see?

 

Rebecca Nagle: So, yeah, you saw Justice Gorsuch and the three liberal justices, one really understanding federal Indian law, you know, Justice Jackson had clearly done a lot of reading around congressional intent and the legislative history, and she drew on that a lot in her questions, and they were very skeptical of the individual plaintiffs and Texas’s arguments and kept pointing out the U.S. has been making laws based on these principles for 200 years, and you’re asking us to depart from that, that’s a big deal.

 

Priyanka Aribindi: Right?

 

Rebecca Nagle: But then unfortunately, there were a lot of other justices who were skeptical that appeared to be skeptical that ICWA is constitutional. And so you had Justice Kavanaugh saying things like, well, could we pass a law where only white parents can adopt white children and only Asian parents can adopt Asian children. So kind of assuming that ICWA is based on race and ignoring the unique political status of sovereign Indigenous nations and our citizens. And then to talk about that comment from Alito, at one point Justice Alito said, before Europeans arrived, all Indigenous nations were at war with each other. Which is not true and really disturbing. And I think that comment kind of sums up where we are unfortunately with the Supreme Court, which is that they don’t know a lot about federal Indian law it’s a really unique area of the law.

 

Priyanka Aribindi: Yeah.

 

Rebecca Nagle: And there’s also just a lot of racist stereotypes in their heads about native people. And we saw that come out.

 

Priyanka Aribindi: Definitely. So at this point, what’s your read on how the court will decide this?

 

Rebecca Nagle: Like I said, there were four justices that were very clearly skeptical, and I think it’s really hard to get to a fifth Justice, which is obviously what we need, and so I think we’ll just have to wait and see, but I think it is very likely that the law will be overturned. And I think that it’s one of those things where, you know, the way that we were talking about reproductive rights last year, or the way that we’re talking about affirmative action and elections this year, the way that people are talking about really fundamental things of our democracy are on the line. And we need to start thinking and questioning what is the integrity of the high court. I think that this case is a test and anyone who is concerned about the integrity of the Supreme Court needs to pay attention because the precedent that we’re talking about that the Supreme Court could possibly overturn, literally goes back to the founding of the Republic. Literally goes back to laws that were passed in the 1790s. And so if the Supreme Court is willing to throw that out the window, what part of our democracy is safe?

 

Priyanka Aribindi: That was my conversation with writer and activist, Rebecca Nagle. She’s also the host of the Crooked Podcast, This Land. We’ll have a link in our show notes to its second season. It’s phenomenal. Highly, highly recommend giving it a listen. It investigates the many challenges to the Indian Child Welfare Act. More on all of this very soon, but that is the latest for now.

 

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

 

[sung]: Headlines

 

Priyanka Aribindi: A Federal judge in Texas has struck down President Biden’s student loan forgiveness plan. The ruling, which came from a lawsuit filed by two people who did not qualify for the program, essentially said that Congress had the ultimate authority to make such a decision, not the president. The plan, which was put on hold by an appeals court last month would cancel up to $20,000 in federal student loans for individual borrowers. I don’t know why these people wanted to end up on every single person’s shit list, but, uh, good for you guys.

 

Tre’vell Anderson: They keep playing with my pocketbook, Priyanka. Okay.

 

Priyanka Aribindi: We don’t like it.

 

Tre’vell Anderson: Tropical storm Nicole ripped through Florida yesterday, leaving hundreds of thousands without power after making landfall in the southeastern part of the state as a category one hurricane. Nicole brought high winds, heavy rains, and coastal flooding to the state. Officials said the storm was directly responsible for at least four deaths. The storm is expected to move northward tonight into Georgia before weakening to a tropical depression.

 

Priyanka Aribindi: The Taliban has banned women and girls from using gyms and parks in Afghanistan. The edict took effect this week and is the latest effort by the regime to oppress women and erase them from public life. Since the Taliban regained power in August of 2021, it has also ordered women and girls to wear head to toe clothing in public and banned female students from attending middle school or high school. Taliban officials said that they were compelled to extend restrictions to parks and gyms following what they saw as violations of the country’s strict dress code and gender segregation rules. But on the latter point, one female personal trainer in Afghanistan told the Associated Press quote. The Taliban are lying. We were training separately.

 

Tre’vell Anderson: Infowars founder and conspiracy theorist, Alex Jones achieved negative billionaire status yesterday. A Connecticut judge ordered him to pay $473 million dollars in punitive damages to the families of eight children who were killed at Sandy Hook Elementary, and that’s on top of the $965 million dollars in compensatory damages he was ordered to pay last month. Jones repeatedly described the devastating 2012 mass shooting as a hoax and has been convicted of defamation. He claims he doesn’t have the funds to pay those penalties, in which case he better start offloading discount brain force pills now. Whatever money Jones does have, the Connecticut judge has instructed him not to transfer it out of the country.

 

Priyanka Aribindi: Yeah, listen, you, uh, get huge consequences if you are a huge fucking asshole and a terrible person, so–

 

Tre’vell Anderson: Absolutely.

 

Priyanka Aribindi: –lesson to everybody out. Don’t do shit like this. If you don’t want a massive, massive fine.

 

Tre’vell Anderson: Absolutely.

 

Priyanka Aribindi: The slow motion, self-driving car crash, that is Elon Musk’s Twitter continued to shock and astound yesterday. The company’s head of trust and safety and its head of sales both resigned according to numerous reports. Those departures followed the resignations on Wednesday of three Twitter execs in charge of security, privacy, and compliance leading the US Federal Trade Commission to express it’s quote, “deep concern.” The resignations also led onlookers to wonder who actually is left at Twitter, aside from Elon Musk and maybe a guy who paid eight bucks for a verified check mark that says he too is Elon Musk. [laughter] Later on Musk laid bare the company’s perilous financial situation and what sounds like an absolutely bonkers all hands meeting. He reportedly mentioned that bankruptcy was on the table and suggested that to survive, his workers needed to be more quote, “hardcore.” I don’t even want to begin to explore what that could mean. All of this serves as a cautionary tale to anyone who ever comes into $44 billion dollars and doesn’t know what to spend it on. My suggestion, instead of a website like Twitter, would be world peace or you know, if you can’t buy that, maybe just an island or something.

 

Tre’vell Anderson: You know, you could end childhood hunger or something. I don’t know.

 

Priyanka Aribindi: Oh, definitely. I don’t, I think for $44 billion dollars, I don’t think anyone’s going hungry.

 

Tre’vell Anderson: You paid $44 billion dollars for a company that you now say you might have to file for bankruptcy for? Something’s not right Priyanka. [laughing]

 

Priyanka Aribindi: Yeah. Uh, basically to enable, uh, fake Mario to, uh, give us all the middle finger on Twitter, [laughter] which is one of many of these like fake verified accounts that is popping up and is wreaking havoc, but it’s also kind of hilarious.

 

Tre’vell Anderson: And those are the headlines. We’ll be back after some ads with the latest out of the fast-paced world of Boneless Chicken Law.

 

[AD BREAK]

 

Priyanka Aribindi: It is Friday Wad Squad, and today we are doing a segment where we visit the last place where justice can be served in America, a place where the law is administered by people with zero legal experience apart from knowing parts of Legally Blonde by heart, a place called the Podcaster’s Court. [gavel sound] [laughter] Tre’vell, I’m gonna tell you about a recent weird thing that has happened in our nation’s courts, and you get to evaluate it on its merits based on your vast legal experience. Are you ready for this?

 

Tre’vell Anderson: To quote a one Elle Woods? What? Like it’s hard?

 

Priyanka Aribindi: [laugh] Yes. Okay. So this story that we got today comes out of Indiana where the fast food chicken finger restaurant Raising Canes is trying to sue its way out of a 15 year lease that it’s signed on a new store in the crossing of Hobart Mall because that mall has a deal granting exclusive rights to sell deboned chicken on its property to another restaurant. Obviously, the chicken ban would make it difficult to operate a Raising Canes [laughter] unless they wanna limit the menu to fountain sodas and little paper cups of sauces. The unusual exclusivity clause dates back to 1984 and it’s with an onsite McDonald’s. Lawyers representing Raising Cane’s say that their client should have been informed about the ban before it spent millions of dollars developing the site. While lawyers for the mall say that the information about the ban was accessible on publicly recorded title records, and it was up to Raising Cane’s to do their research.

 

Tre’vell Anderson: Wow.

 

Priyanka Aribindi: So Tre’vell, you have at least some of the information here.

 

Tre’vell Anderson: Mm-hmm.

 

Priyanka Aribindi: Who are you siding with in a court of law?

 

Tre’vell Anderson: You know what? I’m going to make my decision here based solely off of which chicken tastes the best? [laughter] And I recently had Raising Canes on a visit to like Arizona a couple months ago.

 

Priyanka Aribindi: I’ve never had it.

 

Tre’vell Anderson: And I have to say if I want a boneless chicken anything, I’m probably going to go to Raising Canes over McDonalds. I just have to say it.

 

Priyanka Aribindi: Tre’vell has spoken.

 

Tre’vell Anderson: I have spoken, and this also this rule is foolish. Okay. Like what do you mean that they should have just done their research to know that they can’t sell their chicken?

 

Priyanka Aribindi: How do you not tell them? That is an absurd thing to expect them to know to look for. Where was this publicly I mean, I guess it changes my opinion might change based on like how publicly accessible was this like–

 

Tre’vell Anderson: Mm hmm.

 

Priyanka Aribindi: You know, when was it in this contract, whatever, when they signed it and they just didn’t look and assumed it was fine.

 

Tre’vell Anderson: Right.

 

Priyanka Aribindi: Or like, was this buried somewhere and they expected them to know it. That’s diving into the technicality here, but I say let them compete. This is wild.

 

Tre’vell Anderson: But can we also note McDonald’s is sitting here acting like they got all of these wonderful chicken products. [laughing]

 

Priyanka Aribindi: Like what?

 

Tre’vell Anderson: Like we eat the nuggets. Don’t get me wrong, but like, come on.

 

Priyanka Aribindi: What do they even have? Nuggets? That’s it.

 

Tre’vell Anderson: It doesn’t make any sense here.

 

Priyanka Aribindi: It makes no sense. That was the Podcaster’s Court. [gavel sound] This court is adjourned. I think it’s time for some chicken. That sounds delicious. [laughter] [music break]

 

[AD BREAK]

 

Tre’vell Anderson: That’s all for today. If you like the show, make sure you subscribe, leave a review. Take more money from Alex Jones and tell your friends to listen.

 

Priyanka Aribindi: And if you’re into reading and not just the intricacies of chicken law like me, What A Day is also a nightly newsletter. Check it out and subscribe at crooked.com/subscribe. I’m Priyanka Aribindi.

 

Tre’vell Anderson: I’m Tre’vell Anderson.

 

[spoken together]: And find us on the autumn breeze.

 

Tre’vell Anderson: Okay. But can we talk about how cold it’s been lately?

 

Priyanka Aribindi: Yeah, it’s cold as hell in Los Angeles. I’m not really into it. Also, so we started raining, which was quaint for like about an hour and a half, and then I was like, I am sick of this.

 

Tre’vell Anderson: Listen.

 

Priyanka Aribindi: I like it when it’s cloudy.

 

Tre’vell Anderson: I did not sign for this.

 

Priyanka Aribindi: No. [music break]

 

Tre’vell Anderson: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, and our executive producers are Lita Martinez, Michael Martinez, and Sandy Girard. Production support comes from Leo Duran, Ari Schwartz and Matt DeGroot with additional promotional and social support from Ewa Okulate, Julia Beach and Jordan Silver. Our theme music is by Colin Gilliard and Kashaka.