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The Story of Baby O: Rebecca Nagle on the Supreme Court Case That Could Gut Native Sovereignty

StoryNovember 10, 2022
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The Supreme Court heard oral arguments Tuesday in Haaland v. Brackeen, a case challenging the Indian Child Welfare Act and ultimately threatening the legal foundations of federal Indian law. ICWA was created in 1978 to address the systemic crisis of family separation in Native communities waged by the U.S. and requires the government to ensure foster children are adopted by members of their Indigenous tribes, as well as blood relatives, before being adopted by non-Indigenous parents. Now right-wing groups are supporting white foster parents to challenge the law as discriminatory. “Not only are our children on the line, but the legal foundation, the legal structure that defends the rights of Indigenous nations in the United States is literally at stake,” says journalist Rebecca Nagle, who has been reporting on the case for years and says it’s likely the Supreme Court will strike ICWA down. Nagle also comments on the oral arguments, saying the Supreme Court’s majority has “many racist stereotypes in their minds about Native people.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.

We end today’s show looking at the Supreme Court, which heard oral arguments on Wednesday in a case focused on the Indian Child Welfare Act, a 1978 law created to prevent family separation in Native communities. The case centers on a Navajo girl known as Baby O, who is being raised by a white couple who sued to overturn the Indian Child Welfare Act. Our next guest says the court’s ruling could have potentially seismic implications for Indigenous nations in the U.S.

We’re joined by Rebecca Nagle. She is a Cherokee writer, award-winning journalist. Her piece in The Nation is headlined “The Story of Baby O—and the Case That Could Gut Native Sovereignty.”

Rebecca Nagle, welcome back to Democracy Now! Why don’t you lay out this story and then what the Supreme Court heard yesterday?

REBECCA NAGLE: Thank you so much for having me.

Yeah. So, Baby O, when she was born, she was left at a hospital under Nevada’s safe haven law. And she went to live with Heather and Nick Libretti, a white couple who live outside of Reno, Nevada. They thought, given the circumstances, they would be able to adopt her. But the child’s father was identified, and it became clear that she was eligible for citizenship in the Ysleta del Sur Pueblo, a federally recognized tribe in Texas, and that her case fell under ICWA. The Librettis were told they would not be able to adopt the child, that her placement with them would be temporary.

And instead of accepting that the child would go to blood relatives, they decided to fight. They hired lawyers. They asked the child’s grandmother to renounce her tribal membership so that ICWA wouldn’t apply to the case. They got in touch with relatives who were considering fostering and adopting the child, and had conversations with them to try and talk them out of considering that.

And in a biased system with social workers who didn’t understand how ICWA worked and didn’t see their role as enforcing it, they got a lot of help. When the tribe identified family members that were available for fostering the child, the social workers in Nevada weren’t calling those family members. The tribe actually had to get a judge to order them to call the family members. And then, when those social workers did call family, they tried again to talk the family out of fostering the child.

Eventually, the county pulled out a really weird threat, that they were going to place the child back with her birth mother on paper, but that she would continue to live with the Librettis. And so the case went to settlement, and the Librettis were able to adopt Baby O.

And that’s what’s a little wild about the lawsuit, is that Heather and Nick Libretti are still plaintiffs. The U.S. Supreme Court heard their case along with their co-plaintiffs yesterday. And even though they were able to win custody and adopt Baby O over that child’s blood relatives, they still claim that they faced racial discrimination that violated their constitutional rights, not because that adoption didn’t happen but because ICWA supposedly made it harder.

NERMEEN SHAIKH: And can you explain — before we go to clips from the hearing, explain what ICWA is, the Indian Child Welfare Act, which was passed in 1978. What rights did that act grant to Indigenous children?

REBECCA NAGLE: Yeah, absolutely. So, when ICWA was passed in 1978, 25 to 35% of all Native children had been removed from their families. You know, there were some Native communities that at that time didn’t have kids. It was extreme. And so, what ICWA does is it’s like a set of guardrails. So, when a Native child enters foster care or an adoption, ICWA works to keep that child connected to their family, connected to their tribe. And so, it gives Native parents some extra rights, like it requires active efforts. There has to be a judge present if a Native parent does relinquish their parental rights. It allows tribes to intervene in a case. For children who are on tribal land, those cases take place in tribal court. So, it does a lot of different things, again, to try and prevent family separation in Native communities, which throughout U.S. history there have been times where it has been systemic.

AMY GOODMAN: I’d like to turn to an exchange between Justice Kavanaugh and Deputy Solicitor General Edwin Kneedler during Wednesday’s hearing. This clip begins with Justice Kavanaugh.

JUSTICE BRETT KAVANAUGH: So, to get to the heart of my concern about this, you would agree, I think — but tell me if you disagree — that Congress couldn’t give a preference for white families for white children, for Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.


JUSTICE BRETT KAVANAUGH: Do you agree with that?



EDWIN KNEEDLER: That’s purely based on race. But this is —

JUSTICE BRETT KAVANAUGH: And this is different because? And I’ll let you explain.

EDWIN KNEEDLER: Because it has to do with Indian tribes.

AMY GOODMAN: Rebecca Nagle, can you explain what this is all about?

REBECCA NAGLE: Yeah. [inaudible]

AMY GOODMAN: Sorry, Rebecca, we’re having a little trouble with your audio. So, why don’t you start again?

REBECCA NAGLE: Can you hear me?

AMY GOODMAN: You’re breaking up. While we fix this, I’m going to go to a second clip. You know these clips cold, as you followed this. But these are comments of Supreme Court Justice Neil Gorsuch during Wednesday’s hearing. We’re going right now to Justice Neil Gorsuch. We were hoping that we had Justice Neil Gorsuch, but let’s see if — let’s see if we have Rebecca Nagle up. Rebecca?

REBECCA NAGLE: Yes. Thanks. Sorry for —

AMY GOODMAN: OK, great. Now we can hear you.

REBECCA NAGLE: — the difficulty.

AMY GOODMAN: Go ahead.

REBECCA NAGLE: Yeah. So, Native Americans are sovereign Indigenous nations, and our citizens have a unique political status within U.S. law. So, a lot of people think of Native Americans as a racial group, but that’s not actually how the law works. The way the law works is that we’re a political group. So, just like certain laws apply to me because I’m a citizen of the U.S. or I live in Oklahoma, certain laws apply to me because I’m a citizen of the Cherokee Nation. And that unique political status goes back to the treaty relationship between my tribe and the U.S. federal government.

So, there’s an entire section of the U.S. Code with laws that literally go back to the founding of the republic, that treat tribes and tribal citizens differently. So, you know, I can access healthcare at a clinic that only serves tribes and tribal citizens. Tribes can operate casinos in states where non-Native casino developers can’t. You know, everything from land rights, water rights. You know, if we’re just a racial group, what racial group in the United States has its own land base, its own environmental regulations, its own police force, its own criminal and civil codes? And so, the fear is, is that this lawsuit is kind of like pulling a string on a loose sweater. And if they can unravel ICWA, then everything else will come with it.

NERMEEN SHAIKH: And could you explain, [Rebecca] — in your piece in The Nation, “The Story of Baby O—and the Case That Could Gut Native Sovereignty,” you explain that there have been many attempts to overturn ICWA, the — and also explain who is behind these efforts. Why has that been a concerted attempt to overturn this act?

REBECCA NAGLE: Yeah, absolutely. And I think it’s actually, unfortunately, a story that the media has really missed. And so, you know, places like The New York Times have reported this case as if it originated as a custody dispute. But it’s actually part of a coordinated litigation campaign to strike ICWA down, that’s been led by the corporate law firm Gibson Dunn, by a very small cadre of right-wing organizations. The Goldwater Institute is really leading the front, but in our investigation we found that money from the Bradley Foundation, a right-wing family foundation in Wisconsin, was behind their efforts, and then a small group of private adoption attorneys and some organizations representing the private adoption industry.

And so, it’s pretty extraordinary when you look at the difference in how many people are fighting ICWA and how many people support the law. It’s extremely unequal. You know, there’s Texas coming out and saying ICWA is a bad law, and on the other side you have 23 states. And I think it shows where we are at in our democracy, is that when something isn’t popular, you could not get Congress to overturn ICWA, how if you have enough resources and money, you can use the courts to the same end.

AMY GOODMAN: And talk about what this means for the future of Native Americans and for this issue of sovereignty, how the story of Baby O, as you point out, is so much bigger, and why these right-wing foundations and funders are so concerned about taking this act down.

REBECCA NAGLE: Absolutely. So, I think we can see what their interests are by their own actions. So, the corporate law firm Gibson Dunn and the partner who brought this case, Brackeen, a man named Matthew McGill, filed a lawsuit last January making the exact same legal arguments that they’re making in Brackeen, but instead of representing foster parents that couldn’t adopt Native kids, they’re representing a non-Native casino company that couldn’t do the type of gaming that tribes can do. And the harm in that lawsuit is much more straightforward than in the Brackeen case. It’s simply money.

And so, what is at stake for tribes is — I mean, it’s hard to overstate it. It’s basically everything. It’s tribal sovereignty. You know, I was interviewing tribal leaders yesterday. It was a very heavy day at the Supreme Court for tribal leaders, because not only are our children on the line, but the legal foundation, the legal structure that defends the rights of Indigenous nations in the United States is literally at stake.

NERMEEN SHAIKH: And one of the points that Justice Alito made, which was, of course, extremely controversial, he said that Indian tribes were often fighting each other before the Europeans arrived. Your response to that?

REBECCA NAGLE: You know, it’s really sad, but when we take our issues to federal court as Indigenous nations, we’re not only dealing with justices who literally don’t understand federal Indian law and don’t have a, you know, 101 understanding of how that area of the law works, but they have so many racist stereotypes in their minds about Native people that those stereotypes come out during oral arguments. So, I mean, the idea that all Indigenous nations were just at war with each other before Europe came, Europeans came, is obviously not true. It is obviously very racist. But we’ve seen it before. You know, when this case was heard in the 5th Circuit, a judge that was searching for a hypothetical pulled on the racist stereotypes that all Native Americans are drunks. And, I mean, it’s just shocking, but I think it shows how much ignorance and racism is in a system that we think is supposed to be about, you know, interpreting the law and interpreting precedent. And so, that’s something that continues to be a really big barrier for Native rights, unfortunately.

AMY GOODMAN: I just want to play what Nermeen was referring to with Supreme Court Justice Alito at Wednesday’s hearing.

JUSTICE SAMUEL ALITO: Before the arrival of Europeans, the tribes were at war with each other often, and they were separated by an entire continent.

AMY GOODMAN: And now the comments of Supreme Court Justice Neil Gorsuch.

JUSTICE NEIL GORSUCH: Counsel, I’m sorry to interrupt, but this new rule would — would, I think, take a huge bite out of Title 25 of the U.S. Code, which regulates the federal government’s relationship with tribal members. There are healthcare provisions that Congress promises to Native Americans off reservation. That doesn’t seem to fall in any of your buckets. Congress has permitted tribes to exercise power over environmental regulations that have indirect effects off reservation. That would seem to go, too. We have laws that promise Native Americans access to sacred sites off reservation and religious liberties off reservation. That would seem to go. And I’m not even sure, maybe the liquor sale, those old precedents, but maybe that’s commerce. I don’t know. But there would be a lot that would be bitten out of Title 25. We’d be busy for the next many years striking things down.

AMY GOODMAN: So, that’s Justice Gorsuch, Rebecca. If you can explain what he’s saying, and then, finally, as those arguments went, what you think the decision will be? We have less than a minute.

REBECCA NAGLE: Yeah. I mean, Justice Gorsuch was pointing out what a lot of legal scholars have been saying about this case, is that if the Supreme Court strikes down ICWA on the grounds that the plaintiffs are asking, is that it would have seismic implications for other laws governing the rights of Indigenous nations in this country.

You know, I think, unfortunately, I think it’s very likely that this court will strike ICWA down. I think we have a lot of justices on the court who don’t — either don’t understand federal Indian law or are not interested in upholding it. And I would just say that, you know, as people are talking about how radical the Supreme Court is —

AMY GOODMAN: Five seconds.

REBECCA NAGLE: — with reproductive rights, they need to be looking at this case especially.

AMY GOODMAN: And again, ICWA is the Indian Child Welfare Act. Rebecca Nagle, Cherokee writer, award-winning journalist. We’ll link to your piece in The Nation, “The Story of Baby O—and the Case That Could Gut Native Sovereignty.” I’m Amy Goodman, with Nermeen Shaikh.

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Big Win for Tribal Sovereignty: Indian Child Welfare Act Upheld by Supreme Court in Surprise Ruling

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