The Lawsuit About the Indian Child Welfare Act That Isn’t About the Children | Crooked Media
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August 20, 2021
With Friends Like These
The Lawsuit About the Indian Child Welfare Act That Isn’t About the Children

In This Episode

Fellow Crookedian Rebecca Nagle joins to talk about Season Two of “This Land.” From the “boarding schools” of the 19th century to the good intentions of the Indian Child Welfare Act — and the big money campaign to repeal it.





Ana Marie Cox, narrating: Hi, I’m Ana Marie Cox, and welcome to With Friends Like These. In the 1870s, state and religious groups in the U.S. and Canada built what they called boarding schools. Native children were taken from their homes and families, and sent far away so they could, quote, “learn how to be white.” It was a gradual form of genocide and it continued for generations. About a hundred years later, activists and Native people finally convinced the federal government to do something about it. Thus was born the Indian Child Welfare Act, or ICWA. It was passed in 1978. The system created by that act, the people it affects and the people who want to roll back the clock, that’s what fellow Crooked Media host Rebecca Nagle explores in Season 2 of This Land. She is our guest this week and she is coming right up.


Ana Marie Cox: Rebecca, welcome to the show.


Rebecca Nagle: Thank you so much for having me.


Ana Marie Cox: I very much appreciate the content warning you do at the beginning of your show. Would you mind doing it here? Because we’re going to be discussing the same stuff.


Rebecca Nagle: Yeah. So at the top of the podcast, what we say is the stories we’re sharing this season touch on different forms of trauma. Please take care of yourself while you listen.


Ana Marie Cox: We’re big fans of taking care of yourself here, so I really love that. How would you like to introduce yourself today?


Rebecca Nagle: Sure, [speaks in Cherokee]. My name is Rebecca Nagle. I’m a citizen of Cherokee Nation. I live in Tahlequah, Oklahoma, and I grew up in Joplin, Missouri.


Ana Marie Cox: You have a little bit on the podcast about what that introduction means, like why that is an Indigenous person’s introduction of themselves. Can you just talk a little bit about that?


Rebecca Nagle: Oh, yeah. So, I mean, a lot of times, you know, sometimes Native people try to, when we introduce ourselves, introduce ourselves in our languages. And what goes into that introduction, I think, is really dependent on people’s community and culture and tribe. And I also would mention that I am not even close or anything remotely close to a speaker of my language, but I am learning. And so in my introduction, I say my name, that I’m a citizen of Cherokee Nation, where I live and where I’m from, and then often when I introduce myself, I’ll also introduce who my family is, so who my parents are, who my sisters are, and where my family is from, too. And then usually once you get to who your relatives are, then people can kind of place you and know where you’re from.


Ana Marie Cox: And that is sort of a preview of what we’re going to be talking about in a way, right, because it’s the embedding of a person in their community. So I want to talk about your podcast, and I’d like to set the stage with a little bit of history. People probably heard about the hundreds of graves that were discovered at the site of Canadian boarding schools. I don’t know if people know that the US had as big a system, if not bigger. I don’t know. Could you talk a little bit about that, when it started, how big it was, how pervasive it was?


Rebecca Nagle: Yeah, so starting in the 1870s, the United States operated opened government-run boarding schools. And I think one thing that’s happening that’s really interesting right now is people are debating this word ‘school,’ right? Because the purpose of them was clearly not education. But the first one that opened was called the Carlisle Indian Industrial School in Pennsylvania and it was the brainchild of a man named Richard Henry Pratt. And he had actually fought in the US Army against Native nations in some really, really violent massacres and battles. And he with some Native people who had been actually kept as prisoners of war, tried out this idea of if we can educate Native people and basically assimilate them to white society, then it’s a different way of getting rid of Native people. And so that first experiment with prisoners of war was so successful, the army gave them an entire school.


Ana Marie Cox: [laughs] Can I time out to ask, how they define—it’s not funny at all—but how would you define successful from that point of view?


Rebecca Nagle: Well, you know, you see, you see a lot of these very staged photographs from that era that now are, I think, deeply disturbing, but at the time were a sign of the success. And so how they measured success was how assimilated the Native children were to white society. And so there were these displays of, you know, the children dressing like white people, you know, speaking English like white people. And so these boarding schools, many were operated by the U.S. federal government, and then churches operated hundreds more. So there were over 400 schools open across the United States and they stayed open for the better part of the century. And it’s, you know, there’s a federal inquiry happening right now and so it’s hard to pin down exact numbers, but some people have estimated that at the height of the boarding school era, about a third of Native children had been placed in these schools. And the goal was really to separate Native children from their culture, from their language, from their families. And I think that the boarding school era is also really important to understand in context. And so when we talk about the genocide of Indigenous peoples in the United States, there are, of course it’s more complicated than this and it’s very simplistic to put things all in one bucket, but there are sort of these different eras where there was a period of time where the United States used things like massacres, starvation, concentration camps, death marches, to annihilate Indigenous people. And boarding schools represents this pivot towards assimilation, towards this idea of if we can make Native people more like Europeans, eventually there won’t be Native people anymore. And so boarding schools isn’t the only policy that pushed towards that. You know, you start seeing things like the urban relocation program, the blood quantum, and all of these other things sort of with the same idea of getting rid of Indigenous people. And so I think it’s really important for people to understand that context. And when you look at the writings at the time, it was, it was the stated goal. You know, one of Henry Pratt’s most famous quotes is, “Get rid of the Indian, save the man.”


Ana Marie Cox: I actually have boarding school in quotation marks throughout my notes because I feel like neither of those terms are really good for they were. They were more like hostage centers where people were forcibly reeducated. Right?


Rebecca Nagle: Exactly. Yeah. And I think, you know, as we’re going through the trauma of discovering these graves in Canada and we’re going to have a similar reckoning in the United States as these sites start to be investigated, I think the burial of the children that went there is evidence that the goal wasn’t education because the death of those children didn’t run counter to the goal of those schools. You know, and Richard Henry Pratt, the man who sort of was one of the biggest champions of these schools in the United States, one of his most famous quotes is “Kill the Indian, Save the Man.” So the idea really was the genocide of Indigenous people and cultures.


Ana Marie Cox: When did you learn about boarding schools, the boarding schools in quotation marks?


Rebecca Nagle: Oh, huh, I don’t know, um . . .  I don’t know that there was like—


Ana Marie Cox: As a kid?


Rebecca Nagle: Yeah, I don’t know that I have a specific memory, I think . . . yeah, I don’t think there’s like a moment where I’m like, oh, my God, I didn’t know that this happened. I would say that probably one of the most, like one of the experiences that I’ve had that really stuck with me, and I talk about this in the podcast, is that when I used to live on the East Coast and when I lived in Baltimore a few years, on Memorial Day weekend I went around with a group of Native leaders from Pennsylvania and then from the D.C. area, decorated the graves of the children who were buried at Carlisle—it’s one of the schools where the graves are marked. And so we would, they would do that every year. And I got to participate a few years. And I think for that, that really drove home just how much was lost, lost in those places.


Ana Marie Cox: A lot of Black people I know grew up knowing about Tuskegee, you know, grew up knowing about the Juneteenth celebration. They grew up knowing the history of Thomas Jefferson and Sally Hemings. Like they didn’t learn it at school. It’s just kind of this cultural knowledge that know sort of surrounds you. And I’ve always thought about that as like that’s survival. You know, those are stories that you tell in your culture in order so, you are telling the children this is who you’re up against, basically.


Rebecca Nagle: And I think it’s, I think it’s complicated because I think things like, I think a lot of our community members who attended boarding schools, like I think it’s important to note that the people a lot of people who went to those schools are still with us and still carrying that trauma. And I think how much is talked about really depends on the community, the family and the individual survivor. You know?


Ana Marie Cox: Part of the boarding school project was to get Native children adopted out, right?


Rebecca Nagle: That was, that was a separate policy. So there was, there was a policy called the Federal Indian Adoption Project. And the Bureau of Indian Affairs worked with the Child Welfare League of America to place Native children, to adopt them out and placed them in white homes. And so there was the federal program that was working on that on a federal level. And then at the same time, you had local and state child welfare agencies looking at Native families and saying, you know, coming to conclusions like, well, this child is being raised by his grandparents instead of his parents, so this is neglect or abandonment because the parents aren’t here. And so there was a lot of, at the same time, racism and bias in the system in how local and state child welfare agencies were treating Native families. And so it all kind of came to the head at the, in the late 1960s and there was a big national survey that was done that was how many Native children are in some form of out-of-home placement, how many Native children are living away from their family and their tribe. And the survey found that nationally, 25 to 35% of all Native kids were away from their family and tribes. And that big survey was really spurred the Indian Child Welfare Act. And so in Canada, people call it the Sixties Scoop. Here in the United States, sometimes people call it the Federal Indian Adoption Project. But it’s this era where the racism at the time, the thinking at the time, was that these children were better off in white homes.


Ana Marie Cox: There’s some kind of dawning realization that we should do something different, right? So you have the Indian Child Welfare Act . . . I’m curious, just was there so much outrage that that’s what kind of set the table for it? Or—


Rebecca Nagle: Yeah, and it it took a long time. So there’s a case in Minnesota that got some national press and then that spurred the national survey. And then it was another decade before the law passed. And so there was congressional testimony. There was advocacy at the local and the national level. And I think one thing that’s actually really interesting about the legislative history is that as families and tribes became more aware of the abuses that were happening within the child welfare system, people also started litigating these cases. And so a lot of what is written into the Indian Child Welfare Act itself is from the problems that people were seeing in the child welfare systems and also the things that worked to fix that. And so ICWA is a complicated law, it does more than one thing. But I think of it as sort of like a set of guardrails so that when a Native child enters the child welfare system or enters any kind of adoption proceedings, there’s a set of guardrails that make sure that help keep that child connected to their family and their tribe.


Ana Marie Cox: And that solved everything?


Rebecca Nagle: No. [laughs] Not at all.


Ana Marie Cox: Oh, OK, sorry. I just, I just assumed. You know, we did something so it must have solved every problem that people had with Indian child welfare. It’s called the Indian Child Welfare Act, Rebecca. Like, what, what more do you need?


Rebecca Nagle: Yeah, I think, you know, I think that you can think of ICWA as existing in an era where we see a lot of laws passed to try and correct structural racism, especially that’s being done by states, right? So you look at like the Voting Rights Act, right, and it is looking at all of the different ways that states, particularly Southern states, tried to prevent Black people from exercising their right to vote. And so there are all of these different measures that are put into the Voting Rights Act to try and prevent that from happening. But that doesn’t mean that the problem is solved. And so I think similarly, we still see a lot of racism and a lot of bias against Native families in the child welfare system. And so the statistics and the disproportionality of Native kids entering foster care is still there. So like a couple examples, one of the cases that we talk about in the podcast took place in Minneapolis and Hennepin County, and in Hennepin County, Native children are 35x more likely than white children to be removed from their parents. In Minnesota, about a third of Native children will enter foster care before their 18th birthday. I can’t remember exactly. I think it’s in six, I think in six US states, Native children have a one in two chance of being investigated by CPS. And you see similar statistics and disproportionality for Black children. And so I think a lot of what’s happening within the child welfare system, when we look at what children are reported, of the families that are reported to CPS, which families are investigated, of the families that are investigated, which children are actually removed from the home—there’s just huge racial disproportionality across the system, and a lot of bias in the system. And I think it also intersects a lot with poverty because it you know, the number one reason why Native children are removed from their family is not because of any form of abuse, it’s neglect. And I think that a lot of times a family that is struggling with poverty can be labeled as being neglectful.


Ana Marie Cox: One of the people you interviewed makes such a great point that the state would rather spend thousands of dollars to place that child in another home than give that family money for food, like a hundred dollars for food.


Rebecca Nagle: Yeah. And I think what’s heartbreaking is that, you know, while we were investigating this bigger federal lawsuit, we dug into the particulars of these cases. And there are these moments where, you know, there are underlying issues, but there’s this crisis that leads to the child welfare system getting involved, right? And, you know, a lot of times it’s those things where if there were more supports in place for these families, it would have never gotten to that point. So it’s like if they weren’t struggling with housing, if they weren’t struggling with employment or with addiction, and if we had better systems in place to support families, I think a lot of the children, a lot of foster care would be preventable. And I would really send people to the work, we interview a woman, Anita Fineday from the Casey Family, from Casey Family Programs. And they’re really, they’re the ground working with foster care systems in different states. And their goal is trying to improve foster care, because that’s a whole other conversation of like what are the outcomes for children who are placed in foster care? But they’re also trying to prevent the need for foster care. Where if we can support families earlier and if we can just have basically more of a safety net for families, in a lot of situations it can actually prevent the need for foster care in the first place. And, of course, that’s what’s best for children because, you know, the disruption of foster care in and of itself is a disruption and a trauma for that child.


Ana Marie Cox: Rebecca, hold on just a minute. We’re going to do some ads.


[ad break]


Ana Marie Cox: Do you wanna talk a little bit more about the systemic problem here. Like just pull back a little.


Rebecca Nagle: Yeah. I mean I think that, I think that in this country we have to have a really hard conversation about what it means to take care of our children. You know, I think we have a lot of rhetoric around, you know, saving children and I think what’s crucial about foster care, from my perspective and from my reporting is that we come in as the government, we come in as, you know, as the state of Oklahoma, or whatever agency, and say to a child, like, you are so unsafe in your home, we’re going to take you away from your home and your parents because we care that much about your safety. But then we put that child into a system that we don’t fund adequately to make sure that that child has the support and the care that they need to thrive—or even in a lot of jurisdictions, to make sure that that child is safe in that system. And I think we have to have a hard conversation because I think what’s best for children is what’s best for families. And I think that, you know, really, when we look at preventing the need for foster care, that looks like more support for families. And I think we have in our society, we just lack the political will to give families, especially families that are living in poverty, more support.


Ana Marie Cox: Let’s talk a little bit more about families, because, and this almost refers back to the introduction you gave yourself because the community aspect of raising a child and the intergenerational trauma that happens when you take the community out—forget, I mean don’t forget family, but family is just a part of something even larger, right? And we know that Black people suffer intergenerational trauma as well. But do you wanna talk a little bit about the specific kind of track that happens here, like between if you can draw a line from the boarding schools to foster care?


Rebecca Nagle: Yeah, and I think people, you know, people are really talking about this right now. You know, it’s interesting because Canada and Australia are both going through these national recognitions also with their version of boarding schools in Australia with the Stolen Generation, and in Canada and residential schools, and what Indigenous leaders are saying there is that, you know, it’s great that you’re apologizing for these past sins, government, but foster care is the modern version of that. And so, and it’s not just in the United States, but in other settler colonial countries that have this, almost this very similar history of boarding schools. The modern-day version of that is foster care. And so I think that, you know, I, I’m not adopted and so I can’t speak for other people, but when we listen to adult adoptees and especially Native adult adoptees, and other trans-racial adult adoptees, what they say is that they grew up without a sense of self and they grew up without a strong sense of identity, and that identity formation, that that was really hard for them. And so, you know, we talked to adult adoptees who lived in homes where there was abuse, like homes where they were not safe. And we also talked to adult adoptees who lived in very loving homes, but still had this sense of not knowing who they were and not having a connection to their culture, that we have to look at Indigenous children and really see that that connection and that grounding in who they are, and that connection to their language and their culture is their birthright. And so, yeah, and so that separation of children is still happening. And that is why the Indian Child Welfare Act is still a really important and really needed law.


Ana Marie Cox: You mentioned the reckoning. We are having an official reckoning of sorts right now, the federal Indian Boarding School Truth Initiative, and I think maybe here we can add how important it is that Deb Holland is our is our Secretary of the Interior. So do you want talk about what that is?


Rebecca Nagle: Yeah. So after there was press of First Nations in Canada finding mass graves at the sites of former residential schools, Secretary Holland announced that there’s going to be an investigation into schools in the United States. And so here in the US, we don’t have complete records from these schools. A lot of information has never been made public. And we also haven’t located the graves and the bodies of the children who didn’t survive those places. And so there is currently an investigation that’s being led under Secretary Holland by the Department of the Interior, which is the department that at one point ran those schools, to try and bring answers to the community and to those families.


Ana Marie Cox: And in case people don’t know, Deb Holland is herself Indigenous. And it took, it is not great, actually, that it took the wonderful occasion of an Indigenous person being Secretary of the Interior to have this happen.


Rebecca Nagle: Yeah, absolutely. A lot of people have pointed that out that, you know, that there was no reason the Interior couldn’t have done this sooner.


Ana Marie Cox: [laughs] Not at all. I mean, again, we celebrate her being there, but could have been sooner. Most recently, I heard that they might do some kind of hotline for people that have experience with this kind of intergenerational trauma. You mentioned when I was talking to you before the show that Canada has one, that they provide resources for people who’ve been through this and want to, and want to find out more, want to get help. What happens here?


Rebecca Nagle: Yeah. I think that there are some senators that are talking about establishing a similar hotline in the United States, which I think would be great. You know, we in creating the podcast, we created like a resource page on the website for different resources. And one of the things that really struck me was that when I was looking for hotlines, or even just like reading material and websites for adult adoptees, it’s really hard to find those resources. A lot of the resources, most of the resources online in the adoption community are for adoptive parents. And so I think it’s another shift that we need to make in our society is that when we’re talking about adoption and how adoption should work and what it should look like and what are the limitations of adoption, what are the benefits, that we really need to do more work, I think, to center the voices of adoptees, because a lot of times they get left out of that conversation.


Ana Marie Cox: And I want to continue this conversation. We’re going to take another quick break.


[ad break]


Ana Marie Cox: So your podcast is about a lawsuit that would repeal ICWA the Indian Child Welfare Act, for reasons that have nothing to do with its flaws or what it doesn’t do. It’s not about replacing it with something better. It’s not even really about the kids. But there’s kind of a cover story for the lawsuit. Could you tell us what the cover story is, what it looks like from the outside?


Rebecca Nagle: Yeah. So the story, the name of the lawsuit is Brackeen v. Haaland. And the story of the lawsuit is that this white couple that live in the suburbs of Dallas were fostering a Native child and they wanted to adopt that child. They felt like they were the best home for that child because they had raised him for about a year and they were told that they couldn’t adopt that child because of the Indian Child Welfare Act. And so they sued. And they sued the Department of the Interior. And their lawsuit is to say that the Indian Child Welfare Act is unconstitutional and they were joined by three states and then two other foster families. And so it’s kind of, it’s a complicated, kind of big, sprawling lawsuit, but basically it’s these three foster families who all fostered and wanted to adopt Native children and then they say that ICWA, either—one family was not able to adopt the native child, the other two actually did adopt the Native children in their care—so either ICWA getting in the way of the adoption or making it more difficult, violated their constitutional rights.


Ana Marie Cox: Right. So if we were covering this for like a right wing-radio talk show, what I would do now is be like reverse discrimination, oh my god, it’s reverse discrimination.


Rebecca Nagle: Or NPR or CNN.


Ana Marie Cox: Oh, is that what they say too? [laughs[


Rebecca Nagle: The last time ICWA was in front of the Supreme Court that was the story, that the Native child was like in a loving home, and this bad law was ripping that child away from the only home that she had ever known. And so that’s the story that’s been told about ICWA now for the better part of a decade without a lot of journalists asking what I would say are basic questions, both about what actually happened in these custody cases, and does this rise to the level of violating someone’s constitutional rights? And then also what is happening in this lawsuit and why is it being brought? Like are we, are we really pouring millions of dollars into a federal lawsuit because everyone’s so concerned about this toddler, or is there more going on here?


Ana Marie Cox: [laughs] OK, little bit of a spoiler alert. Just in a second. We’re going to do the big twist. But I want to just say something about ‘loving home’ the use of the phrase ‘loving home’ because you said earlier, we have to talk about what we mean by taking care of children, right, and the casualness with which people say, oh, why take this kid away from a loving home to put him with his grandparents? What do they mean by loving home sometimes I wonder? It seems like they mean, [laughs] white, well-off, you know—is that kind of the the the sleight of hand that’s happening there?


Rebecca Nagle: It . . . yes. And one of the things we did during our investigation is we got our hands on the transcripts of some of the actual custody cases. So not the big federal lawsuit about the constitutionality of ICWA, but in court, these foster parents talking about why they were the better home for the Native child. And you can see the classism in all of it. You know, one, in one case, one of the foster dads was worried that the great aunt’s home was too small and that maybe it would be OK for the child to share a bedroom when she’s a child, but would she have privacy when she was a teenager? She needed to live in a home where she had her own bedroom. In another case, the foster dad was concerned—at that point, the child was actually living back with her grandmother—and the foster dad thought that since she had moved back in with her grandmother, that the child, who I believe was seven at the time, had gained weight, and that they had done a better job of managing that child’s diet and weight and it was in her best interest to live with a family that managed her diet and weight better than her grandma did. And so the, when you get down to the specifics of the reasons, it’s things like that.


Ana Marie Cox: Yeah. I want to get into the twist, but I have to say that in thinking about this way that we define loving home, and what we think of as taking care of children, I think people should realize that hurts rich white kids, too, in a way. Like if we define having all you need materially is all you need to grow up, then there is a bunch of abuse and neglect happening, you know, in huge homes with three cars and maid service, you know. And it . . . would be a difficult, this difficult, difficult conversation we need to have, needs to apply to everyone. Is all I’m saying.


Rebecca Nagle: Yeah. And I think, you know, one of the, one of the interviews that really struck me, I talked to actually a family court judge and he said, you know, I know that within my jurisdiction there are upper middle-class and middle-class white families that are abusing substances and are dependent on substances, and I don’t see those families in my courtroom. Like, and he just oversees child welfare cases, and he said the families that I see in my courtroom coming in here when the underlying issue is substance abuse, are families of color and families that are poor. And so I think that, you know, I think the child welfare system, you know, it’s kind of the same thing we see in the criminal justice system where it’s like, OK, we know a lot of white people are smoking pot. You know, like we know white people are using drugs at similar rates but then who is actually going to jail for using those drugs? And I think we see similar disproportionality in the child welfare system.


Ana Marie Cox: In AA, sometimes we when people talk about being functional alcoholics, we’re like, oh, you mean white, you mean white alcoholic? [laughs] We’re just going to talk a little bit more about what the ICWA’s intended to do—before the big twist, everyone get excited—I loved the comparison you made to the Voting Rights Act because the Voting Rights Act is a great act. You know, we love it. It’s just been hollowed out and attacked by states. And that’s sort of what’s happening with ICWA.


Rebecca Nagle: Yeah, and part of the twist is that some of the same people who’ve been attacking the Voting Rights Act are some of the same people that are now—


Ana Marie Cox: All this foreshadowing. [laughs]


Rebecca Nagle: —filing briefs or helping bring these cases. Yeah. But yeah, so I mean, I think ICWA does a few things. Like I said, it doesn’t just do one thing. So one thing that it does is that it makes it so that child welfare agencies have to do what’s called active efforts to reunite a child with their parents. And so if that’s providing counseling, if that’s helping that parent get housing, they have to show that they’ve done active efforts. The second thing that the law does is that it gives tribes a say in cases that involve their children. And so tribes can move cases to tribal court or they can actually intervene in the state court proceedings. So just like, because I, you know, I live in Cherokee County, Oklahoma, and so if I was a kid, you know, my county and my jurisdiction, they’re actually represented in the court proceedings about what should happen to a child, and so just like Oklahoma has an interest in its children, Indigenous nations have an interest in its children. And then the last thing that ICWA does, and this is what upset some people, is that it lays out placement preferences for if a child is being either voluntarily put up for adoption or is in the child welfare system and is not going to be reunited with their parents, where that child should go next. So the first placement preference is their family, and that can actually be non-Native folks. You know, if you have a Native parent and a non-Native parent, an aunt on your non-Native side qualifies just like your family on your Native side. If there’s no family that’s available, the second placement preference is another citizen of that child’s tribe. And then the last placement preference is another Native home. And so it’s a way to try and keep children first, connected to their family, second, connected to their tribe and to their culture, and then still within a Native home.


Ana Marie Cox: All right, we’ve foreshadowed enough. Rebecca, thank you for laying out what ICWA does, but this suit kind of has, I don’t want to say it has nothing to do with it, but at its heart, the reason why there’s so much money in it, the reason why these people are so invested in ijt . . .  Rebecca, what is it really about?


Rebecca Nagle: That’s the, that’s the million dollar question. And I think, honestly, it’s different for different players. And so, you know, the private adoption industry historically, so big agencies that represent the private adoption industry, like the National Council National Council for Adoption and the American Academy of Adoption Attorneys, they have taken the public position in these cases that they oppose ICWA. And they oppose any law that regulates adoption because there is a shortage of available children for adoption, and they want there to be more children available for adoption, not less. The other thing—


Ana Marie Cox: But that’s still sort of about the kids. See, I’m curious because eventually, we get someplace really weird.


Rebecca Nagle: Yeah. And so the other thing that we found by looking at the lawyers who are bringing these cases is that they also work a lot on behalf of the gaming and betting industry, which is an industry that comes up against tribes and tribal casinos a lot, and see, view tribal casinos as competition. And what’s interesting is when it comes to the very specific legal arguments that they’re making in these cases, specifically about ICWA being racial discrimination, and then they make this other case about states’ rights—they’ve made those same arguments in cases where they’re trying to undermine tribal gaming. And so they’ve taken those arguments and they brought them over to ICWA. And then the big law firm that is bringing this case and is representing the individual plaintiffs is deeply, deeply, deeply tied to the oil industry. It’s kind of like tied for first place with another law firm, as like really just representing the oil industry more than really other law firms in the world. They’re the law firm that represented the company behind the Dakota Access Pipeline, organized like, lobbyists that represent their clients have talked about how the Indigenous protests since then really need to be stopped and how it’s like hurting the industry. And so there’s a lot of money to be made if Indigenous sovereignty is limited or is hurt. And that’s really how Native leaders see this case, is that—and you kind of have to understand federal Indian law to understand how—but basically they’re saying that ICWA is based on race. That whether you’re a child, a Native child under the statute or a Native parent under the statute, that’s race-based and therefore it’s unconstitutional. But it’s actually based on tribal citizenship. So the law only applies to children who are either enrolled in a tribe or eligible for enrollment. And if ICWA is unconstitutional because it’s based on race, well, what about my tribe’s right to operate a casino on trust land? What about my tribe’s right to have trust land? You know, I go to a hospital to get my medical care that would turn non-Native people away. So how can I go to that hospital, but other people can’t? And it’s because I’m a citizen of Cherokee Nation and the federal government has a treaty and trust responsibility to provide health care to the citizens of my tribe because it’s signed treaties with my tribe promising to do that, you know? But it’s and so people, Native leaders really see this case as undermining tribal sovereignty and attacking the heart of tribal sovereignty and being kind of like the first in a series of dominoes where if you can get ICWA to topple on this basis, then other things will follow.


Ana Marie Cox: What you’re telling me, Rebecca, is that there’s money to be made.


Rebecca Nagle: There’s a lot of money to be made. There’s a lot of money to be made.


Ana Marie Cox: [laughs] There’s surprisingly, there’s deep pockets because there’s deep, you know, dough on the other side. But I just wanna repeat back to you what I think you said just because it’s fascinating. And I think I want to make it really clear. There is some talk, there is some reason that is somewhat about this case is about kids. OK, fine. But if you dig deep, what you are seeing is an attempt to establish precedent, to undo almost everything that exists to protect tribal sovereignty.


Rebecca Nagle: If the Supreme Court took this case in the broadest way possible and decided it based on the broadest way possible, it would absolutely set that precedent. And it’s interesting because you already see some people making that argument in other areas. So people are already, people have tried and are already making this like kind of like equal protection, race-based argument in other areas of federal Indian law. And some people are even doing it based on this case. And so I don’t think we have to, like, take a wild stretch of the imagination to see the broader implications of it. And then what I want to add is that I actually, I actually do think, and this was something that I was surprised by, that some people are fighting ICWA for ideological reasons. And that ideology is that our country should not have laws that are race conscious, should not have laws that are remedies to structural racism. And the thinking behind that is that the way to solve racism is to stop talking about race and to pretend like it doesn’t exist. And so when you look at the people who are attacking ICWA, a lot of them have also fought things like affirmative action. You know, it’s some of the same players that were behind the Abigail Fisher case and now the Harvard case. You know, we talked about the Voting Rights Act, it’s some of those people. And I think there is this really deep ideological divide, which I think in some ways is kind of intellectually dishonest because we can see all the ways that systemic racism in the child welfare system exists, but any effort to remedy that is what is unfair. [laughs] I think one of the things that’s very telling about this lawsuit is that they’re trying to get rid of something and not trying to build something different. I think if you’re concerned about children in foster care, there is a lot of reason to be concerned about the well-being of children in foster care in the country right now. You know, and there’s also a lot of reasons to see, you know, there’s a lot of evidence that ICWA actually does a lot of good. And so, yeah, I think if their end-goal was really helping Native children, they would be trying to build something, not trying to destroy something.


Ana Marie Cox: So when I look at this case and your podcast and what I’ve learned, the case is itself about both children and the ability of non-Native people to adopt Native children in a echo of the boarding school, you know, system a little bit, that echoes—not the same! But it’s Echo. And it’s about who controls the resources in Native land, Native sovereignty. You know, you can’t oppress a people, just, you know, but, just in culture or just in economics, it’s both. It’s always both. You’re always, your oppressing in both these both these lanes. And it made me start to think about reparations. Which we talk a lot about in terms of slavery. But I really hear so much less discussion when it comes to Indigenous people. I mean, hardly any. I think I’ve talked to one person about it. But this case raises it for me, because it’s talking about the most precious resources you have in a community, which is the children, and who were taken.


Rebecca Nagle: Yeah. And I think, you know, when I interviewed Native leaders, one thing, one thing that more than one Native leader said to me was, you know, if we can’t protect our children, then what can we protect? You know, if we can’t, if we can’t keep our children, then then what else do we have? Yeah, and I think when it comes to what justice looks like for Indigenous nations, you know, the slogan or the hashtag or what will you, but the thing that people are talking about a lot right now is Land Back. And I think that looks like a lot of different things. And so, you know, Under Secretary Deb Haaland, she’s trying to make the tribes putting land back in trust easier. There’s been some proposals that national parks or national forests should be returned to the stewardship of Indigenous nations. And I think it’s also restoring sovereignty over the land that we have that is recognized and really creating a legal reality where tribes, the inherent rights of our tribes to govern our land, to govern our citizens, is recognized. And right now, what we have in the United States, thanks in large part to the Supreme Court, some things that Congress has done, but mostly the Supreme Court, is that that’s piecemeal. And so when you look at civil jurisdiction, criminal jurisdiction, the right of law, the right of tribes to do everything from taxation, to arrest somebody, from speeding, for speeding it, it’s very complicated. And I think what we need is a full restoration of tribal sovereignty and tribal jurisdiction on tribal land and also restoring land to tribes. And my last thought, not to be too meta, but I think, you know, as our country faces a growing ecological and climate crisis, you know, I think that restoration of tribal sovereignty is going to be critical for all of us, and is what is best for all of us. You know, there’s the statistic that Indigenous people globally control about like 5% of the land in the globe, but protect 80% of biodiversity. And so, you know, Indigenous peoples, we really have the knowledge of that stewardship that is so desperately needed right now.


Ana Marie Cox: All of that sounds good. There is a part of me that the reason I specifically mentioned reparations is it’s not enough. I mean, it’s funny because you talk about restoring. Restoring. Yes. That’s to restore to someone what they once had. It’s giving back the thing that you had. But like, if I have a house and you come and kick me out of my house and then you rent the house out for years and years and you get all this money from the house, and then you’re like, oh, by the way, you can have the house back. Here. Go ahead. But I’m going to keep all that money and keep all the stuff that I got out of the thing that I took from you.


Rebecca Nagle: Well, and what happened to Indigenous people is like we were held at gunpoint and kicked out of the house. But then we also, at that time—


Ana Marie Cox: It was way too tame an example.


Rebecca Nagle: Yeah. Yeah. But at that time, the, we, our ancestors had enough political power to negotiate treaties. And so in exchange for billions of acres of land, the U.S. made certain promises to Native nations that the United States still isn’t meeting. You know? And so that I think, you know, I think we should you know—Australia is going to pay reparations to survivors of their version of boarding schools. And I think that was announced very recently. And I think that there’s a lot of space to talk. I mean, you know, everything from forced sterilization and IHS to like what happened with the federal Indian adoption project to survivors of boarding school. What has happened to indigenous families—I think there’s a lot of space to talk about reparations for those programs and the damage that those programs have done. But we haven’t even gotten close. We’re not even close to the place where the United States is actually fulfilling its treaty obligations. And so what the US said in legal documents that it would do in exchange for that land, the US still hasn’t done. And so I think we’re just starting at a very, very basic, basic level. Some very basic things could still be done to improve the situation.


Ana Marie Cox: So in your first episode, you talk about the twin motivations that white people have for helping, quote unquote, “helping” Native people: greed and charity. So I’ve been thinking a lot about that. And I wonder if those two things are all that different, at least as expressed by white people towards Native people. And podcasts listeners, Rebecca’s already like nodding her head at me. [laughs] But what my thought was, is that charity, as expressed in this way, is a form of greed. It’s greediness to feel good about yourself. It’s greediness to be seen virtuous. It’s greediness to be seen as virtuous. It’s greed for the biggest number of converts. I mean, I’m not even talking about the financial thing that’s probably in there, too, but they’re kind of the same.


Rebecca Nagle: Yeah. I mean. And I think, you know, in my reporting, I think I’ve I found both. You know, I found economic incentives with clear ties to the lawyers who are bringing these cases. I found a paper trail that laid out why this case was part of a broader agenda to build conservative power. And then we also found, you know, blog entries and court testimony and even entire books people have written about racism in the United States from a white man’s perspective. But you know, where people are really motivated by personal and ideological reasons. And I think that, you know, we think that it is a big space between something like greed and charity, and I think when you look at history, when it comes to the policies that have harmed Native children, it’s always been both. You know, I think we’re able to see now how violent and how awful the boarding schools were, but at the time they were talked about as charity. Most of the boarding schools in the United States were run by churches. And, you know, as I was going through and researching for the podcast, I found this like leaflet from the Catholic Church that was circulated to try and get donations for one of these schools. And they talked about how, you know, if you are a good Christian, you would donate to this cause and you would get rewards from God for donating to this cause. And so, you know, I think the solution to that is that, is Indigenous self-determination and that what is best for Native children needs to be up to Native people ourselves, because I don’t think that we can afford to have another history lesson, because we know how much trauma Native children and Native families have already survived.


Ana Marie Cox: So I want to kind of take that point that was made in the Catholic pamphlet and kind of bring it up to today, because that’s another thing I’ve been thinking about. Because that’s the emotional greediness, right? Like that’s like I want to feel good about myself, I want to get these gifts from God. And I wonder if you, and I wonder if you think that still exists today, maybe even among, well, I think those Catholic people who donated were probably well-meaning white folks, but people who think of themselves as well-meaning white folks who might agree with us politically, might be doing some of that same thing. And I wonder if you have some advice for those of us who want to be allies about how to think of ourselves in relation to Native communities,


Rebecca Nagle: yeah, I mean, I think the most important thing isn’t, like I said before, is Indigenous self-determination. And so I think when ally-ship looks like supporting and following Indigenous people, you know, I think that that’s what’s most important. And so I think, you know what I would say, because a lot of times I get asked, like, what can I do, what can I do? And I really think that when we see political movements that are effective, it’s always based in relationships. You know, it doesn’t come out of good intentions and things like that. Movements that are effective are really based in relationships. And so I think it’s really important for people to find, you know, the urban Native community where they are, the urban IHS facility or the tribe where they are and try and reach out and build those relationships. You know, maybe it’s on social media. Maybe it’s in the area that you’re in. You know, maybe you’re, you know, really into, um, I don’t know, like games or something, you know, like but finding those, like Indigenous content creators or those Indigenous leaders, an area that you were in and really putting those people front and center and building those relationships.


Ana Marie Cox: Thank you so much, Rebecca. Thank you for coming on the show.


Rebecca Nagle: Thank you so much for having me.


Ana Marie Cox: And that is it for the show. Thanks to Rebecca for coming on again. She is the host of This Land, which is now starting Season 2. We are also a production of Crooked Media and produced by Alison Herrera with assistance from Izzy Margulies. Only thing I want to say this week, things are rough out there. Remember, you’re not alone. Reach out for help if you need it, reach out if you think someone else needs your help. Both of those things are good for the soul. Please take care of yourself.