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

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Image Credit: National Indian Child Welfare Association

We speak with Cherokee journalist Rebecca Nagle about a major victory at the Supreme Court in a case that could have gutted Native American sovereignty. In a surprise 7-2 ruling Thursday, the court upheld the 1978 Indian Child Welfare Act, which protects Native children from being removed from their tribal communities for fostering or adoption in non-Native homes. The court rejected an argument from Republican-led states and white families who argued the system is based on race. Nagle has covered the case closely for The Nation and her podcast, This Land, and says the far right is attacking the Indian Child Welfare Act as part of a broader conservative agenda to destabilize federal Indian law. She calls the decision “really encouraging,” noting it is “good not just for Native nations and families, but for the rule of law.”

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StoryNov 10, 2022The Story of Baby O: Rebecca Nagle on the Supreme Court Case That Could Gut Native Sovereignty
Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We begin today’s show with a major victory at the Supreme Court in a case that could have gutted Native American sovereignty. On Thursday, the court upheld the 1978 Indian Child Welfare Act, that protects Native children from being removed from their tribal communities for fostering or adoption in non-Native homes. Tribal leaders say the law helps to preserve their families, traditions and cultures.

In a stunning 7-to-2 ruling, Justice Amy Coney Barrett rejected an argument from Republican-led states and white families who argued the system is based on race, writing, quote, “In sum, Congress’s power to legislate with respect to Indians is well established and broad.” Justice Neil Gorsuch wrote in a concurring opinion, quote, “The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties,” unquote.

Many are also taking note of the final paragraph of Justice Gorsuch’s opinion. It reads, quote, “Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the tribes a place — an enduring place — in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.

“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.” Gorsuch concluded, “All of that is in keeping with the Constitution’s original design,” unquote.

Meanwhile, Justices Samuel Alito and Clarence Thomas both wrote dissents, with Thomas objecting to, quote, “regulating state-court child custody proceedings of U.S. citizens, who may never have even set foot on Indian lands, merely because the child involved happens to be an Indian,” unquote.

For more on all of this, we’re joined in Oklahoma by Rebecca Nagle, a Cherokee writer, award-winning journalist, who followed this case closely in a piece for The Nation headlined “The Story of Baby O—and the Case That Could Gut Native Sovereignty.” She’s also the host of The Land podcast. In season two, she’s been reporting on how the far right is using Native children to attack American Indian tribes and advance a conservative agenda.

Rebecca, welcome back to Democracy Now! Please, first respond to this, what shocked many Native American tribes and communities, and also tell us the story of Baby O.

REBECCA NAGLE: Thank you, Amy, so much for having me and for covering this important issue.

Really, what happened with this case is that for the past decade, special interest groups have used this law, the Indian Child Welfare Act, as a vehicle to launch a broader attack on tribes and tribal sovereignty. And so, the arguments that they invited the Supreme Court to adopt would have not only gotten rid of the Indian Child Welfare Act, but it would have really destabilized the area of law a lot of people call federal Indian law. And instead of taking that invitation, the Supreme Court responded with a very, very strong “no.”

One of the ways that these special interest groups have advanced these cases is by really misrepresenting the facts on the ground and what happened when these non-Native foster parents tried to adopt Native children. So, it’s a complicated case. There’s multiple foster parents. One of those couples is a couple named the Librettis from Nevada. When a child was placed with them through Safe Haven, within a few weeks her father was identified. It was identified that her father was a descendant of a federally recognized tribe and that she was eligible for enrollment, and the process started for her to be placed with a family member.

And the Librettis’ response to that was extraordinary. I mean, they wrote a letter to that child’s grandmother asking her to disenroll so that ICWA would not apply. They managed to rope social workers into their plot, who either refused to call relatives who were possible placements, or, when they made those calls, tried to talk the relatives out. And basically, Nevada social workers strong-armed the tribe into entering a settlement. And we found, you know, stories like that in all of the underlying custody cases.

And so, what really happened in this case was, rather than non-Native foster parents being able to adopt — being prevented from adopting Native kids, for the most part, they won custody. And the people who faced the real hurdles were the Native relatives who just wanted to keep their young relatives in their family.

AMY GOODMAN: And so, what ultimately happened to Baby O? And how did this case make it to the Supreme Court?

REBECCA NAGLE: So, Baby O, like many of the other children in the underlying custody cases — all of the children in the underlying custody cases have been adopted, and those adoptions are final. And so, Baby O was adopted by the Librettis, and that’s who she’s being raised by, despite there being several blood relatives that came forward during her case who wanted to raise her.

And that was one of the things that I was relieved to see in the Supreme Court case. You know, this case has been on stilts since it was filed in federal court. All of the underlying adoptions have been long final. And normally, when that happens, a lawsuit is over. You know, there needs to be a controversy for a lawsuit to move forward. And I think one of the things that the Supreme Court signaled in this ruling is that it is more dedicated to the rule of the law and the rule of civil procedure than the politics of this case, because one of the things that the plaintiffs invited the Supreme Court to do was to ignore those things and, instead, to make a political decision, and they rejected that, which I think is good not just for Native nations and families, but for the rule of law.

AMY GOODMAN: So, Rebecca Nagle, can you talk about the comments of Justice Neil Gorsuch, Amy Coney Barrett — these are some of the most conservative members of the court — and the fact that this shocked Native Americans around the country? And also talk about why would, oh, organizations like gambling casinos be very invested in this case. When you talk about, by the way, ICWA, that’s the Indian Child Welfare Act.

REBECCA NAGLE: Yeah. So, the special interest groups that have been attacking ICWA for the past decade kind of fall into three buckets. So, it’s a handful of private adoption attorneys. And if you look at the private adoption industry, they’ve fought basically any regulation that would result in there being less children who are available for adoption. There are some right-wing organizations, like the Goldwater Institute. We also found a lot of money flowing into the anti-ICWA campaign from the Bradley Foundation.

And then, who’s really spearheading the effort now is a law firm called Gibson Dunn and a lawyer there named Matthew McGill. And last January, the other shoe dropped, and so they actually — Gibson Dunn and Matthew McGill filed a lawsuit on behalf of a casino developer saying that tribal gaming was racial discrimination against him because he could not make as much money as the tribes. And so, they’ve basically used the exact same arguments that they’re making to attack ICWA to attack tribal gaming. And so, I think the hope for them was that if they won this case, they could sort of have the follow-up case to attack tribal gaming. And fortunately, they were unsuccessful.

You know, a lot of people are surprised by Gorsuch and Barrett. I’m not. I think that if you listened to oral arguments, Barrett was really positioning herself in the middle on this case. And so, when I saw that the opinion was authored by Barrett, I had a sigh of relief with that news, and then, as I continued reading, I was — you know, I was even more relieved.

You know, we’ve had a lot of liberal justices that have sat on the bench that have not been friendly to tribal sovereignty, because I think that they don’t understand it. You know, I think Justice Ginsburg is somebody that people point to a lot. And so, you know, I think it is good for tribes to have justices that really understand the law and how that law relates to the Constitution.

I think what Gorsuch did in his concurring opinion, that we almost never see — that we almost never see — was that he talked about the long history of the U.S. government removing Native children from their families. And the reason that that is important is that he’s talking about why ICWA is important from the perspective of Native people. And I think that often our perspectives and our stories and our histories aren’t told at venues like the Supreme Court. So to see that coming from a justice is really powerful.

AMY GOODMAN: And so, where does this case go from here, in terms of Native American law, U.S. law?

REBECCA NAGLE: Yeah. So, you know, in the past decade, ICWA has been challenged almost as many times as the Affordable Care Act. This case is the closest and the furthest they have ever gotten in their effort to overturn ICWA. And they got a very, very strong rejection from the Supreme Court. And so I think time will tell whether or not they will bring other cases. Our reporting found other cases that are still sort of in family court, that these corporate lawyers are swooping in to represent non-Native families, so they’ll continue to do that.

And, you know, what’s next for the Supreme Court is yet to be seen. You know, the past few years, we’ve had some great decisions, we’ve had some bad decisions. It’s been a bit of a roller coaster. But I think what’s important about this case is that we’re seeing not only the Supreme Court, but, I think, the public, show more of an interest and more of a knowledge about the Constitution and tribal sovereignty and how all of these things work. I think some of our biggest barriers at the Supreme Court has been ignorance. And I think seeing that knowledge come out in this Supreme Court opinion is really encouraging.

AMY GOODMAN: Rebecca Nagle, we want to thank you for being with us, Cherokee writer and award-winning journalist. We’ll link to your piece in The Nation headlined “The Story of Baby O—and the Case That Could Gut Native Sovereignty.” She’s also the host of This Land podcast.

Coming up, we’re going to Montana, where calls are growing for authorities to investigate the death of Mika Westwolf, a 22-year-old Indigenous woman who died after being hit by a car driven by a suspected white nationalist. Her two children’s names are “Aryan” and “Nation.” But first, we’ll talk to Democratic Senator Chris Van Hollen of Maryland. He’s calling on the Biden administration to declassify its report on the death of Palestinian American journalist Shireen Abu Akleh, shot dead by an Israeli soldier. Stay with us.

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