Uncovering The Foes Of The Indian Child Welfare Act with Rebecca Nagle | Crooked Media
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August 23, 2021
What A Day
Uncovering The Foes Of The Indian Child Welfare Act with Rebecca Nagle

In This Episode

  • In the new season of “This Land,” journalist Rebecca Nagle investigates who is attempting to take down a federal law that aims to keep Native American foster and adoptive children with Native American communities, and why.
  • Nagle joins WAD to explain how all is not what it seems in a court case where a white couple claims that they cannot adopt their foster child, who is of Navajo and Cherokee descent, because of that law.
  • And in headlines: California’s Prop 22 is ruled unconstitutional, powerful storms deluge Tennessee and the Northeast, and school districts face a bus driver shortage.





Gideon Resnick: It’s Monday, August 23rd. I’m Gideon Resnick.


Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, the podcast that actually helps you regain the 36 minutes of your life you lose every single time you eat a hot dog.


Gideon Resnick: Yeah. Joey Chestnut, we sincerely hope that you’re listening out there.


Josie Duffy Rice: And we also hope that you are eating some vegetables.


Gideon Resnick: I don’t have high hopes for Joey, unfortunately.


Josie Duffy Rice: I also don’t like vegetables. I don’t blame him.


Gideon Resnick: On today’s show, President Biden addresses the country again on Afghanistan, plus, some school districts face a bus driver shortage.


Josie Duffy Rice: But first, we look at the story of the new season of Crooked’s podcast, This Land. It’s hosted by journalist Rebecca Nagle, and this season, she investigates who is attempting to take down a law that aims to keep Native American foster and adoptive children with Native American communities, and why those people are doing it.


[clip of Rebecca Nagle] So in this most recent lawsuit, the actual legal argument is that it’s unfair to the white foster and adoptive parents because it puts them last in line.


[clip of woman speaker] Give me a fucking break. I’m sorry. That’s my, that’s my immediate emotional response. You can edit all this out. Jesus. It puts them last. Talk about privilege.


Gideon Resnick: So that’s Nagle talking with one of the many voices in this new season of This Land. And Episodes 1 and 2 just came out today, so we are so excited to have you with us, Rebecca, to tell us more about this entire season and your work. Hello.


Rebecca Nagle: Thank you so much for having me. I’m excited to be here.


Gideon Resnick: Yeah, of course. So that person that we just heard in the audio is Sandy White Hawk. And you talk to her because she’s part of this terrible history in America. For decades, the government would forcibly separate Native American children from their families and place them with white families. That happened to Sandy as a child. But can you talk a little bit more about the history of why the government argued this was even necessary?


Rebecca Nagle: And so there were a couple of things going on. There was the Federal Indian Adoption Project where the federal government actually gave the Child Welfare League of America money to take Native children out of their communities and place them with white families. And the other thing that was going on is that there was a lot of racial bias in child welfare system. So social workers would see kinship systems where a kid was living with their grandma and say, well, this is child abandonment and come and snatch the kid. That fits into this policy in the era where there were all these different policies to try and assimilate Native people, basically to separate us from our tribes and from our culture, with the goal that eventually there wouldn’t be Native people anymore. And a tribe that doesn’t have children, you know—and people you know, our elders talk about, there were communities where there just were no kids during this time. And a tribe without children doesn’t have a future. And so there was a big national survey and they found that 25 to 35% of all Native children were away from their family and from their tribe.


Gideon Resnick: Wow.


Josie Duffy Rice: What kind of trauma did that cause among those children and those families?


Rebecca Nagle: Family separation is something that affects the whole community. So it affects that child, it affects their family, their extended family, and their Native nation.  And when adult adoptees talk about this, you know, a lot of Native adult adoptees talk about growing up with this identity crisis. You know, one person we interviewed put it this way where she said, you know, I wasn’t white, but I lived in a white world. I was Native, but I was completely separated from what that meant. And she just, you know, really struggled with forming her identity. This is still happening. And so social workers are still removing Native children from their families at really, really alarming rates. One of the jurisdictions we looked at is Hennepin County, where Minneapolis is, because that’s where one of the stories take place, where one of the Native children was living in our story, and in that county, Native children are 35x more likely to be removed from their parents than white children.


[both] Wow.


Rebecca Nagle: And so there’s still all of that racism in the system that’s still really harming Native families, and other families of color, and other poor families.


Gideon Resnick: And in 1978, Congress passed the Indian Child Welfare Act, or ICWA. This law is at the center of everything that is in this series in a lot of ways. So can you explain what it actually does, how it came to be, what the backdrop is there?


Rebecca Nagle: I think the easiest way to think about the Indian Child Welfare Act or ICWA for short is that it’s like a set of guardrails. And so when a child, when a Native child is up for adoption or is in the child welfare system, ICWA is there to try and maintain that child’s connection to their tribe and to their family. And it does more than one thing. One thing is that it gives tribes a say in what happens so tribes can intervene in the family court proceedings, they can move the case to family court. And ICWA, and this is like what is at the heart of this lawsuit and what a lot of non-Native people don’t like about the law, is that it sets out placement preferences that prioritizes first, placing a Native child with their family. If that’s not available, another member of their tribe. And then if that’s not available, another Native home, to try and keep kids connected to their family and their culture. And I think the other thing that’s really important that I think a lot of people aren’t talking about this case and the context of is that ICWA comes at the end of the civil rights era and is the response to racist and abusive practices by state agencies, and it’s a set of remedial measures that now many of the same people who have fought the Voting Rights Act, who have fought the Civil Rights Act, are coming along and fighting ICWA and like those things aren’t disconnected.


Josie Duffy Rice: Right, right. Speaking of that, for this season of This Land, you followed a particular challenge to ICWA being the Brackeens’ case. So Chad and Jennifer Brackeen are a white couple in Texas who in 2016 foster a toddler who is Navajo and Cherokee. And the Brackeens want to get this law struck down, right, so that they can adopt that child. So in this clip, you have an actress reading from Jennifer’s blog.


[clip of reading Jennifer Brackeen’s blog] He’s stuck in the system so we wait. We wait and wait and wait. And sometimes this is what foster care is. He’s loved and safe with us until the day he goes home.


Josie Duffy Rice: I don’t want to give too much away, obviously, but all is not what it seems in terms of why they and their lawyers are challenging ICWA. And so without spoiling too much in this series, why not you tell us a little bit more?


Rebecca Nagle: You know, I think reporting this story was like peeling an onion, and the first layer of the onion that we took off is that we realized that the story that’s being told about this custody dispute over this toddler isn’t really what it is. So we were able to track down what happened in the underlying custody case. And this couple, Chad and Jennifer Brackeen, actually won custody of the child relatively quickly because they got some like really big legal help from a huge corporate law firm and the Attorney General of Texas. And once those people intervened in their custody cases, within a couple of weeks the case started going their way. And that’s when they filed this federal lawsuit saying that they were going to lose custody of this child that they had fostered. And they, you know, in federal filings actually talked about how it was this disputed custody after the child’s tribes had agreed to the adoption. So what actually happened in the custody cases is being really misrepresented. It’s told, the story of this family being torn apart. And then, you know, this was an investigation into why ICWA in the past decade, the Indian Child Welfare Act has been challenged more times than the Affordable Care Act.


Josie Duffy Rice: Wow.


Rebecca Nagle: There’s actually a really concerted effort to get it declared unconstitutional. And there are these, this weird cluster of adoption attorneys, corporate lawyers and right-wing organizations and funders that are leading the charge. And so our question was why? Like, why are all these people interested in ICWA? And we found a couple of things—I want to give too much away—but we found a paper trail about how it’s part of a broader strategy around building conservative power. And that it’s also really about undermining tribal sovereignty because the legal arguments that they’re making in this case strike at the heart of the legal structure defending Native rights in this country. And so the stakes are really, really, really high.


Gideon Resnick: And I want to ask for a second here, you know, Rebecca, you are a citizen of Cherokee Nation yourself. So as you’re going through this entire process, there are other layers of it as well for you personally. Can you walk us through a little bit what that felt like?


Josie Duffy Rice: Yeah, I mean, it’s just be very devastating, right, and particularly hits close to home to talk about something like this and to report on something like this.


Rebecca Nagle: Right now, the history and the trauma of family separation is a pretty raw nerve. You know, this past summer, First Nations in Canada announced the news that they had found, they started finding graves, unmarked graves, mass graves of children who went to residential schools in Canada. And that process is starting in the United States now. And so we got some news just this past week, and it’s going to keep happening. And so I think that that, particularly around boarding schools, and I think foster care is kind of the modern form of that—there’s a lot of grieving happening right now. But I think that that history is why it’s an even more important conversation about what is happening today and what is happening with these cases. I think for generations, Native children have been the tip of the spear and have really been tools in this project of genocide. And I think you can see how it’s happening with this case. You know, I cover this as a Native reporter, but I am often really, really frustrated by the non-Native coverage of it. Because there is this way that the folks who are bringing this case or the white foster families are given the benefit of the doubt without people doing basic journalism. And so I sometimes get asked, like, OK, you’re a Native journalists, like, how are you reporting on this in a way that’s not biased? And I kind of always want to point out like the bias of non-Native journalists, because it is, the anti-Indigenous bias, they are so strong that they’re reporting things that aren’t factually accurate. You know, there are these articles, like there is one in The Atlantic, this is told from Chad and Jennifer Brackeen’s perspective. And, you know, the reporter tells it as they’ve told it to the reporter, and we found things on there that we know are not true. And so I think that that’s one thing I really hope we can accomplish in this series is like presenting all the information. You know, we’ve submitted 60 FOIA requests. We went over thousands of pages of court documents. We talked to over 100 people. We, we really did our due diligence to get to the truth and to document what we found. And so I hope that it can kind of reset how these cases are talked about and that people can really bring the truth to light through this series.


Josie Duffy Rice: Absolutely. So Episodes 1 and 2, again, are out today. We can’t recommend it highly enough. I mean, it’s fascinating. It’s an incredible story. But can you talk a little bit about what listeners can expect for the rest of this season?


Rebecca Nagle: We go in depth into this case, Brackeen v. Haaland, and how it started and where it’s going. And then we take a deep dive into the people behind it. And so we kind of go behind the curtain and look at the state Attorneys General, the adoption attorneys, the corporate lawyers, and the right-wing universe of right-wing money that is attacking the Indian Child Welfare Act, and really try and pin down why and what their agenda is. And so, yeah, I hope everyone listens to. It’s, there’s a lot to learn and it’s a really important conversation.


Gideon Resnick: Awesome. Well, thank you so much again for joining us. Rebecca Nagle, the host of Crooked Media’s podcast This Land. Season 2 out today. Again, you have to subscribe. Thank you so much again for all your time.


Josie Duffy Rice: Thanks, Rebecca.


Rebecca Nagle: Thank you so much for having me.


Josie Duffy Rice: You can find This Land on Apple podcast, Spotify, or wherever you get your pods. And that is the latest for now. We’ll be back after some ads.


[ad break]


Gideon Resnick: Let’s wrap up with some headlines.


[sung] Headlines.


Josie Duffy Rice: Over the weekend in Afghanistan, the United States continued to evacuate thousands of people from Kabul following the Taliban seizing control of the country’s capital last week. President Biden spoke from the Roosevelt Room of the White House yesterday afternoon about the ongoing evacuation efforts and said his administration may extend the August 31st deadline for removing all American troops from Afghanistan. Before delivering his remarks, Biden met with his national security team, and his administration ordered American airlines to provide their planes and crews to help in the evacuation effort, activating the Civil Reserve Air fleet, which was created in 1952 during the Berlin airlift. The President has faced sharp criticism for not doing enough to get people out of Kabul and to safety. Yesterday, he said this in his remarks:


[clip of President Biden] Let me be clear, the evacuation of thousands of people from Kabul is going to be hard and painful no matter when it started, when we began. Would have been true if we had started a month ago, or a month from now. There is no way to evacuate this many people without pain and loss and heartbreaking images you see on television. It’s just a fact.


Gideon Resnick: Yeah, heartbreaking is definitely right. On Friday, New York Times reported that the U.S. Food and Drug Administration is pushing to give full approval to Pfizer-BioNTech’s COVID-19 vaccine sometime today. People familiar with the planning but were not authorized to speak publicly on the matter, told the Times that regulators had been working to finish the process by Friday, but were still working through heavy amounts of paperwork and negotiations. So health officials are hoping that an FDA-approved vaccine will draw more interest in some vaccine- hesitant Americans who were wary of taking a shot that had only been authorized for emergency use thus far. The FDA’s approval of the shot may also pave the way for vaccination requirements by public and private organizations such as universities and hospitals, some of whom have been waiting for final regulatory approval before imposing mandates. After receiving the FDA’s initial approval, Pfizer is expected to quickly then ask for approval on a third dose as a booster shot. Meanwhile, regulators are still reviewing Moderna’s data for full approval of their COVID vaccine. As for Johnson & Johnson, I guess we’ll report back in a year or two.


Josie Duffy Rice: The gig economy just got a labor win delivered right to its doorstep. On Friday, an Alameda County Superior Court judge ruled Prop 22, a 2020 State of California ballot proposition, was unconstitutional. Prop 22, which passed in 2020 with 58% support from Californians, allowed companies like Uber, Lyft, Door Sash and Instcart to be exempt from a law requiring gig workers across many industries to be classified as employees, meaning they get benefits like minimum wage, overtime, and worker’s compensation. In 2020, Uber, Lyft and others spent over $220 million lobbying in favor of Prop 22 in what became the nation’s costliest-ever ballot initiative campaign. At that point seems like you could have just paid minimum wage, but . . .


Gideon Resnick: That’s the truth.


Josie Duffy Rice: Critics of the proposition saw it as a way to cement the expendability of low-wage gig workers, denying the company’s responsibility to provide benefits while invalidating workers ability to collectively organize as employees. The judge who overturned the proposition seems to agree with the critics, saying the proposition specifically prevents collective bargaining among workers while also infringing on the power of the California legislature to regulate worker’s comp. While Uber has already said it will be contesting the invalidation, the constitutionality of Prop 22 will eventually be decided by the California Supreme Court.


Gideon Resnick: Uber is just clearly never going to stop with this.


Josie Duffy Rice: Yeah, we’re going to be fighting this forever.


Gideon Resnick: Yep. We love it. Catastrophic flooding in Tennessee this weekend led to widespread damage across the state, including a death toll of at least 22 and a rising number of people still missing following the events of the flood. We are thinking of everybody in the state.


Josie Duffy Rice: So tragic.


Gideon Resnick: The extreme weather in Tennessee is just one of many storms that made landfall in the past few days in New York City. Around 60,000 people attended the We Love NYC concert, which took place in Central Park. The event, which required proof of vaccination for everyone 12 and older, was originally announced back in June as a way to celebrate an end to the worst of the pandemic. As far as how it actually went, I think you can visualize the “my fall plans, the Delta variant” meme in your head, and you will basically get the idea here. While the massive bill featured heavy hitters like Bruce Springsteen, The Killers, and Earth, Wind & Fire, most of the acts announced never had the chance to actually take the stage. As Barry Manilow was in the middle of his song, “I Can’t Smile Without You” around 7:30 p.m., his band was interrupted with a severe weather announcement leading to an evacuation of the park and a subsequent record amount of rain for New York City. The inclement weather New York’s been experiencing has been linked to Hurricane Henri, which was downgraded to a tropical storm Sunday morning before making landfall near Rhode Island. While Henri may not be a hurricane anymore, the storm has still unleashed winds up to 70 miles per hour, as well as coastal and inland flooding throughout the East Coast. As for Barry Manilow—everybody was thinking, what about him?—he got to finish his set on CNN Saturday when he and his accompanist serenaded Anderson Cooper via phone interview with a rendition of his song, “I Made It Through the Rain.” I guess if that doesn’t help the East Coast getting dry, nothing can.


Josie Duffy Rice: Barry Manilow will solve climate change.


Gideon Resnick: Yep.


Josie Duffy Rice: Alone.


Gideon Resnick: Exactly. He’s destined.


Josie Duffy Rice: He’s destined. America’s school districts are having to get creative to face their latest challenge, a shortage of bus drivers. The shortage seems to be happening for a number of reasons. The Delta variant makes bus drivers, more than half of whom are over 65, especially vulnerable in school districts without mask mandates and with low vaccination numbers. Additionally, commercial driving workers are finding demand in other areas like online retail and food delivery. Some school districts are offering parents $700 to drive their kids to school, while other districts are offering signing bonuses and expedited training programs to potential bus drivers. In Seattle, a bus service held a school bus driving demo where volunteers were allowed to give a school bus a spin around a closed course to see if they’d want to apply to drive one professionally.


Gideon Resnick: Oh, man.


Josie Duffy Rice: Across the board, these school districts hope that these recruitment efforts lead to an uptick in applications as the school year rapidly approaches. So if you’re listening out there and you’ve always thought you’d crush it as the wise driver of a big yellow school bus who dispenses sage advice to the kids who ride and always plays the coolest expletive-free music, here’s your very specific and very timely chance.


Gideon Resnick: Yeah, I will say also the first time I heard “Move Bitch” by Ludacris was on a school bus on the way back to camp. So for me personally, expletive-free is not the most important thing because that was a formative experience. [laughs]


Josie Duffy Rice: I must say that, you know, where we all heard our worst music was probably someone else’s CD player on the school bus. So, it’s is a very, very important job, very important developmental job,


Gideon Resnick: 1000%. Learned a lot of words on school busses in my time.


Josie Duffy Rice: Absolutely. Absolutely.


Gideon Resnick: And those are the headlines. That is all for today today. If you like the show, make sure you subscribe, leave a review, drop the kids off at school somehow, and tell your friends to listen.


Josie Duffy Rice: And if you are into reading, and not just New York City rain statistics like me, What A Day is also a nightly newsletter so check it out and subscribe at Crooked.com/subscribe. I’m Josie Duffy Rice.


Gideon Resnick: I’m Gideon Resnick.


[both] And put down the hot dog, Joey!


Josie Duffy Rice: Poor guy.


Gideon Resnick: Yeah.


Josie Duffy Rice: We hope you’re listening. We love you.


Gideon Resnick: Yeah we do. You don’t need to wet the bun every time, at least for the viewers’ sake.


Josie Duffy Rice: Don’t remind me.


Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lance. Sonia Htoon and Jazzi Marine are our associate producers, and Kelly Sadikun is our intern. Our head writer is Jon Millstein, and our executive producers are Leo Duran and me. Our theme music is by Colin Gilliard and Kashaka.