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You're listening to Code Switch. I'm

0:29

B.A. Parker. Now, the

0:31

U.S. Supreme Court typically begins releasing

0:33

decisions in May and June. This

0:36

term, one of the cases they're considering is

0:38

the constitutionality of ICWA, or

0:41

the Indian Child Welfare Act. So

0:43

with the decision looming, I started listening

0:45

to a podcast called This Land

0:48

about the implications for Native people

0:50

if ICWA is struck down. It's

0:53

hosted by Rebecca Nagel. She's a journalist

0:56

based in Oklahoma and a citizen

0:58

of the Cherokee

0:58

Nation. It's nice to meet

1:01

you. Oh yeah, I'm Osiyo, Missouri,

1:03

Owatessadola. Duleka

1:05

yehli gela. Hi, my name is Rebecca

1:07

Nagel. I'm a citizen of Cherokee Nation.

1:10

I live in Tahlequah, Oklahoma,

1:13

and I am from Joplin, Missouri.

1:15

I wanted to talk to Rebecca about the

1:17

history behind ICWA to better

1:20

understand how a case about

1:22

the rights of white foster parents

1:24

could, as she explains in the podcast,

1:27

gut Native sovereignty.

1:30

So you host the podcast This Land,

1:32

and the second season takes on a case

1:35

about the Indian Child Welfare Act, or

1:37

ICWA. Can you explain what

1:39

ICWA is for us?

1:41

Yeah, absolutely. So

1:44

Congress passed the Indian Child Welfare

1:46

Act in 1978, and it was after a big national survey

1:52

had found that about a third

1:55

of Native kids had been

1:58

removed from their family and

1:59

their tribes. So

2:02

there were a couple things going on. There

2:05

was a federal program where the federal government

2:07

literally gave the Child Welfare League of America

2:10

money to take Native kids out of

2:12

Native homes and place them in white homes

2:14

with the very racist thinking that

2:16

they were better off there. And the

2:19

other thing that was happening in

2:21

greater numbers is that state

2:23

child welfare workers were

2:26

taking Native kids away from Native

2:29

families for all sorts of reasons

2:31

that didn't really have anything to do with

2:33

abuse or neglect. So they would

2:37

take kids because they were being raised by

2:39

a grandparent instead of the biological parent.

2:41

They would take kids because families were struggling with

2:44

poverty.

2:45

I've heard people say, yeah,

2:48

we had a drill in our house that if

2:50

a car drove up the driveway, we

2:52

knew that it would be somebody from

2:54

the government or a social worker or something.

2:58

I remember one of my uncles saying

3:01

that he remembers the day that the social worker

3:03

came and got me, drove into

3:05

the driveway and I was toddling around and they were

3:07

all sitting around the

3:10

house as far as I know. That's

3:12

how it was told to me. And

3:15

she just simply got out of the car, scooped

3:18

me up and put me in the car. When

3:21

there was congressional testimonies, you know, Native

3:23

parents talked about going to

3:25

the store to get groceries and coming home and their kids

3:27

were gone. You

3:29

know, I remember being told, you know, we

3:32

took you from the reservation so you would have a chance.

3:36

You know, a chance at what? We're

3:39

given nothing to deal with the major micro

3:42

and macro aggressions that happen

3:44

on the daily. Most

3:46

white families to this day minimize

3:50

racism like crazy. So you're

3:53

emotionally isolated to the point of,

3:57

you know, overload, which is

3:59

why I For adoptees,

4:01

there's such a high rate of suicide

4:04

and addiction. And

4:07

so Congress passed ICWA

4:09

in response to this problem in 1978

4:13

to prevent family separation

4:15

in Native communities.

4:18

In the podcast, you explained that

4:20

ICWA sets out placement preferences

4:23

for where Native children should go if

4:25

they can't

4:27

be with their biological parents. The

4:30

first place would be members

4:32

of the child's family,

4:33

then members

4:35

of their tribe, and then other

4:37

Native homes. And that's been

4:40

what's supposed to happen since 1978.

4:44

But now

4:45

the constitutionality of ICWA is up for debate

4:48

in the Supreme Court.

4:50

Can you tell us about the case that's in front of the

4:52

justices? Yeah, absolutely.

4:55

The case that the Supreme

4:57

Court is probably hashing out their

5:00

decision on right now and revising

5:03

is called Holland v. Bracken.

5:05

It started in 2016. There

5:09

was a white couple in Texas

5:12

who had fostered Navajo

5:15

and Cherokee child for about 10

5:17

months. And at that point, his

5:20

parents' rights were terminated, and he was available

5:22

for adoption. And Navajo

5:24

Nation found a Navajo home that wanted

5:26

to adopt him. But this couple,

5:29

the Brackenes, felt like the child should stay

5:31

with them.

5:32

Yeah, and this is how you explain their backstory

5:35

in the podcast.

5:37

The whole

5:40

thing starts with the story of this one

5:42

couple in the suburbs of Fort Worth, Texas,

5:45

Chad and Jennifer Bracken. Jennifer

5:48

is a successful anesthesiologist, and

5:50

Chad is a stay-at-home dad. They

5:52

are both Christian, and they believe

5:54

people with a lot of money, people

5:57

like them, are supposed to use

5:59

that money.

5:59

to serve God, to help

6:02

others. A few years ago, they

6:04

started looking around for what to do.

6:07

And after reading books, asking church

6:09

leaders, and praying, they decided

6:12

to become foster parents.

6:15

So those are the Brackings, one of

6:17

the white families listed as plaintiffs

6:19

in this case. And so they actually, they

6:22

had the help of the Attorney General of Texas,

6:24

which is extraordinary. Just

6:27

imagine, like, getting a divorce, and

6:29

like the AG of your state has, you

6:31

know, an opinion on who should raise your kids. It's

6:34

really unheard of. It's very unusual. And they

6:36

also got legal help from a law

6:38

firm called Gibson Dunn. You

6:41

may not have heard of Gibson Dunn,

6:43

but you've probably heard of their clients.

6:45

Like Chevron, Shell,

6:48

Walmart, and Amazon. Gibson

6:51

Dunn has a bit of a reputation.

6:54

Here's how one of their recent opponents

6:56

put it. Gibson Dunn

6:58

has built an entire wing

7:00

of that, like their reputation is

7:03

dirty work that they do for Chevron and offering

7:05

it to others. If you're a big corporation,

7:08

you don't hire Gibson Dunn to

7:11

settle your lawsuit. You hire

7:13

Gibson Dunn to go scorched

7:16

earth. And they brought that scorched

7:18

earth approach to a custody battle

7:21

over a two-year-old.

7:23

Around the same time the Brackenes were fighting

7:25

to adopt... So this white foster

7:27

family wants to adopt this native child,

7:30

and somehow the Texas

7:32

AG and this huge corporate

7:35

law firm

7:36

decide to help them.

7:38

Yeah, and so they actually won

7:40

custody of the kid and family court,

7:43

and the tribes agreed

7:45

to let the adoption move forward. And

7:47

what's wild is that

7:49

the same week that they found

7:52

out that basically their adoption of

7:54

this kid was going to move forward, they

7:56

filed this federal lawsuit saying

7:58

that ICWA violates...

7:59

their constitutional rights holland

8:02

vs brock clean and the consolidated

8:04

cases mister mcgill

8:06

thank

8:08

you mister chief justice in may it please the

8:10

court my

8:12

clients open their hearts and their

8:15

homes to a child in need

8:17

and embrace that child as a part of their family

8:20

they are here because the indian

8:22

child welfare x placement preferences

8:25

turn their lives and their families

8:27

upside down solely because

8:29

the child they took in is an indian

8:31

child and they are not and

8:34

cannot be because of their race

8:37

indian families so

8:40

the raccoons are saying

8:42

that equal discriminated against

8:45

them based on race because

8:47

they aren't need have and

8:51

they were joined by the state of texas

8:54

and texas insane that eq was a violation

8:56

of states rights they're basically just

8:58

making a states rights argument and

9:00

then since the raccoons filed the lawsuit

9:03

more couples who wanted

9:05

to adopt native kids they were fostering

9:07

join the suit and

9:09

then it went all

9:10

the way to the supreme court he

9:13

talked to a woman name's sandy white hawk about

9:15

this in the podcast she's the same person

9:18

we heard from earlier who was taken

9:20

from her family when she was a toddler

9:23

so people who oppose

9:26

acquire say that

9:28

the law disadvantages native

9:30

kids because it treats

9:33

them differently than

9:35

other kids and that it's a bad

9:37

law for native child what

9:39

would you say to that bad

9:41

how how's it treat

9:43

him bad do get

9:46

an example or yes

9:49

i think plague in these particular

9:51

cases they say that it puts

9:53

like the interest of the tribe over

9:56

the best interest of the child know

9:59

or know what you call

9:59

but when you take

10:02

something and misconstrue it, that is so

10:04

not true. Because people do not

10:06

understand the law, do

10:08

not understand the structure of a tribe,

10:11

they don't know anything about Indian families

10:14

and our connection

10:16

to each other.

10:18

So in this most recent lawsuit,

10:21

the actual legal argument

10:24

is that it's unfair to

10:26

the white foster and adoptive

10:28

parents because it puts them

10:30

last in line.

10:33

Give me a fucking break. I'm

10:36

sorry. That's my immediate

10:39

emotional response. You can edit all this out, but

10:41

Jesus. It puts

10:43

them last. Talk about privilege.

10:46

So like you said to Sandy,

10:49

this is a case about

10:52

white people being discriminated

10:54

against because they aren't

10:57

always first in line to

11:00

adopt native kids. That's

11:02

one of the things that's kind of a

11:05

little wonky about this

11:07

case is that the plaintiffs

11:09

claim

11:10

that they experienced discrimination

11:12

because of Iqwa, but when you zoom out

11:15

and look at what actually happened in

11:17

the underlying custody cases, for

11:20

the most part, they got what they wanted. Yes.

11:22

So there's three couples who

11:25

wanted to adopt four kids because the Brackians

11:27

wanted to adopt two. Of

11:29

those four kids, every

11:31

child, every child had

11:34

a native blood relative

11:36

that wanted to raise them. And only

11:39

one of those blood relatives,

11:41

an Ojibwe grandma, won custody.

11:44

And it took her six years of fighting to

11:47

be able to adopt her grandbaby. And

11:49

in every other case, the white foster

11:52

parents won. And yet they're

11:54

at the Supreme Court saying that they

11:57

are the ones that experienced

11:59

racial discrimination.

11:59

The other thing that's very wrongheaded

12:03

is that ICWA doesn't actually function

12:05

based on race. It's about a political

12:08

status. So ICWA only applies

12:11

to Native kids who are either enrolled

12:13

in a federally recognized tribe or

12:15

eligible for enrollment. And the

12:17

same thing works with the placement preferences.

12:20

And so

12:22

that's a political status, not

12:24

a racial status. Okay.

12:27

Because this is something that I was

12:30

curious about because I think a

12:33

lot of people would put Native

12:35

Americans into a racial category, just

12:38

at first thought, when indeed

12:40

they are, you know, a political

12:42

category.

12:44

Yeah. And it's one of those things that's tricky.

12:46

I mean, I think Native people obviously

12:49

experience racial discrimination and

12:51

there is a way that in the way that we understand

12:54

race, that that is real.

12:57

But when you look at what people often

12:59

call federal Indian law, that

13:02

body of law goes back to the

13:04

treaty relationship between the US

13:06

federal government and Native

13:09

nations. You know, we've been signing treaties

13:11

with the United States really since the founding.

13:14

And since that time, even in

13:16

the constitution, there's this recognition

13:19

that indigenous nations

13:21

are separate political entities. Right.

13:24

And so just like certain laws

13:26

applied to me because I'm a citizen

13:29

of the United States or because I'm a

13:31

resident of Oklahoma, certain

13:33

laws apply to me because I'm a citizen of

13:35

Cherokee nation. And that's

13:38

a political status, not a racial

13:40

status. And what people

13:43

are worried about is that the

13:45

plaintiffs are making two main arguments. So we talked

13:48

about the racial discrimination argument. And

13:50

then the second big argument that they're making is

13:52

this kind of state's rights argument where they're kind

13:54

of saying, well, Congress overstepped

13:57

its authority. Like it didn't have the

13:59

power.

13:59

to pass a law like ICWA

14:02

in the first place. And what is scary

14:05

about the Bracken case is, well,

14:07

if ICWA is racial discrimination,

14:10

what about the IHS

14:12

clinic where I get my teeth cleaned? What

14:15

about gaming?

14:16

How can a quote unquote racial

14:19

group have its own elections,

14:21

its own government, its own land

14:24

base, its own police force, its own courts,

14:26

its own environmental regulations, you know?

14:29

It was one of the things that was interesting during oral arguments.

14:31

I mean, some of the justices were

14:33

asking questions going back to laws that were

14:36

passed in the 90s, as in the 1790s,

14:38

you know? Really,

14:42

really back, back, back in

14:44

history. Literally, since the founding

14:46

of the United States, Congress has been

14:49

passing laws that

14:51

govern the federal relationship

14:53

to indigenous nations. And so the fear is

14:56

that this would be kind of like a bomb going

14:58

off in that area of law. What

15:00

do you do with that line of cases, like

15:03

the 1799 trade and intercourse act? 1799, state

15:07

courts move off from 1888.

15:08

Our press sent going

15:10

back to 1865 that says in

15:12

reference to any Indian law. I think Gorsuch,

15:15

he had a great line where he was like, I think if we decided

15:18

in your favor, we would be busy for years to

15:20

come.

15:20

We'd be busy for the next many years striking

15:22

things down. How

15:25

did the justices respond

15:28

to the Bracken's characterization of

15:30

Iqwa as a law based on race

15:33

rather than the best interest of the children?

15:35

You know, I think the court was split, but

15:38

there were some justices who were obviously

15:41

skeptical of the plaintiff's argument.

15:44

How is this an invidious racial classification rather

15:47

than a political classification? What do

15:49

you do with this long line of cases,

15:52

which has consistently said, when you regulate the tribes,

15:54

you're regulating political

15:56

entities? Gorsuch

16:01

had a lot of questions. I

16:03

felt like Kavanaugh made a few comments

16:06

that felt kind of like a dog whistle. He wanted

16:08

to adopt a child. The

16:10

state court otherwise would say the best sensors

16:12

of the child would be to go with you. And

16:16

then you're told, no, you're the wrong race. He

16:18

would say things like, well, if we can

16:20

pass a law that only native people

16:22

can adopt native children, can we pass a

16:25

law that only white people can

16:27

adopt white children for

16:28

black families, for black children, for

16:30

Latino families, for Latino children, for

16:32

Asian families, for Asian children. And

16:35

so it seemed like they were really

16:37

adopting the framework that the

16:39

plaintiffs had put forward without understanding

16:42

why Iqwa and laws that apply to native

16:44

nations and their citizens are just different.

16:47

I think you had four justices

16:50

who were very, very, very skeptical

16:54

and at times even embarrassed,

16:56

I would say, the advocates for the plaintiffs

16:59

and for Texas. And

17:01

then you had four justices who

17:03

were pretty

17:04

obviously sympathetic to their arguments.

17:06

And then the justice who actually seemed

17:08

to be in the middle

17:09

was Amy Coney Barrett.

17:12

So all of this could possibly

17:15

fall on the opinion of Justice Amy

17:17

Coney Barrett. At a confirmation

17:19

hearing, she talked about being an adoptive

17:21

mom herself of two black

17:24

children. So we'll

17:27

just have to see what happens when their decision

17:29

comes

17:29

out. Thank you, counsel. The case

17:31

is submitted. The

17:34

stakes are really high. The stakes are really

17:36

high.

17:38

Coming up, what the Iqwa decision

17:41

could mean for the future of tribal sovereignty.

17:44

Stay with us.

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Parker, just Parker, code

19:14

switch. And we've been talking to Rebecca Nagel,

19:16

who is the host of the podcast, This Land.

19:19

She's been reporting on how a Supreme

19:21

Court case about the constitutionality

19:24

of the Indian Child Welfare Act could

19:26

have big

19:27

implications for Native people. Okay,

19:32

so on one side, you have indigenous families

19:34

and tribes. On the other side,

19:37

you have these white foster parents

19:39

trying to adopt Native children and

19:42

claiming that they've been discriminated

19:43

against in the process.

19:45

Like, I know we're just speculating on

19:48

people's intentions, but I

19:50

am curious if you

19:52

think these white foster parents understand

19:55

the implications of

19:58

what they're doing by...

19:59

trying to take down ICWA and

20:02

like the dominoes

20:05

that could fall along with it. I

20:09

think unlikely, but maybe,

20:11

you know, you have these foster

20:14

parents who are represented

20:16

by

20:17

this pro bono law firm that has

20:19

been actively bringing this litigation.

20:22

So ICWA has been challenged

20:25

in the past decade nearly as many times

20:27

as the Affordable Care Act. So there's

20:29

been this really small group of people,

20:32

corporate lawyers, private adoption

20:34

attorneys and right

20:36

wing organizations that

20:38

have brought this kind

20:40

of mountain of litigation. And

20:43

we have found like letters that they

20:45

have sent out like, have you fostered a native child?

20:49

So they're actively looking

20:51

for plaintiffs. And so I think

20:53

the foster parents, there are times

20:55

that I think their behavior is a cause for

20:58

concern, but I think at the end of the day, they're also

21:00

just being used as part of a broader

21:03

agenda. Gibson Dunn has

21:05

a very big gaming portfolio.

21:08

They represent a lot of casino companies.

21:11

And so the fear is that this case

21:13

is really kind of like the first

21:15

domino in a row of dominoes and

21:17

that it's not really about the kids.

21:19

It's not really about ICWA. It's not even really about

21:21

these foster parents. It's more about

21:24

this broader attack on tribal

21:26

sovereignty. And if they can get ICWA to

21:28

fall, then they can get all these other dominoes

21:30

to fall. And so there was speculation

21:32

about that. And then I think when they filed

21:35

this lawsuit on behalf of this casino

21:37

company in Washington called Maverick Gaming, it

21:39

was kind of like the other shoe dropped. You know, the

21:42

gloves were taken off and it became pretty transparent.

21:45

In Washington state, you're now allowed

21:47

to bet on sports, but only in tribal

21:49

casinos. That regulation

21:51

has led to a lawsuit claiming discrimination.

21:55

If successful, the suit could slash revenue

21:57

for tribes. It could also undermine

21:59

NATO.

21:59

of sovereignty. As it turns out, the

22:02

firm bringing the lawsuit for Maverick Gaming

22:04

makes a similar argument about race elsewhere.

22:07

In a legal case, the challenges the Indian

22:09

Child Welfare Act. That act

22:11

says... In that lawsuit, they're making, again, the

22:13

exact same arguments that

22:15

they're making in these ICWA cases, sometimes

22:18

even using the same language.

22:21

But this time, instead of saying ICWA

22:23

discriminates against white foster parents,

22:26

he was claiming that tribal gaming

22:28

discriminated against a non-native

22:31

casino developer. And so,

22:33

yes. And

22:37

so, I think it's pretty transparent that,

22:40

okay, if they can

22:41

win in this ICWA arena, then they

22:43

can take that argument over into

22:46

gaming and really open up

22:48

a lot of markets.

22:50

I mean, in the first episode of

22:52

the podcast, you say you followed

22:55

this case for four years. One

22:57

of the things I was surprised in

22:59

listening to that you discovered was

23:01

that

23:03

foster systems don't want this.

23:07

States with big native populations don't

23:10

want ICWA to go away. So

23:12

I think one thing that is very telling

23:15

is when you look at who filed amicus

23:17

briefs. So in a case, if you

23:19

aren't a party to a case, but

23:22

you have a position or you have an opinion

23:24

about the outcome, you can file what's called an amicus

23:26

brief and sort of tell the

23:28

court, here is my position and why.

23:31

And when you look at who filed amicus briefs

23:34

saying that ICWA is a good law, that

23:36

it's what's best

23:36

for native children, and it should stay in place,

23:39

it's basically every native nation

23:41

in the United States, almost all of them, all

23:44

of the mainline native rights organizations.

23:47

It's also a majority of states

23:50

in the District of Columbia and most

23:52

of the main child welfare organizations,

23:56

so like Casey family programs, you

23:58

also have like the

23:59

the Professional Association of

24:02

Pediatrics, just a lot

24:04

of important organizations

24:06

that look at child welfare saying, no, like

24:08

ICWA is what research says is

24:11

best for kids. And actually

24:13

not only is ICWA good, but we should

24:16

have laws like this for all

24:18

kids that really focus on keeping kids connected

24:21

to their family and their community and their culture.

24:24

On the other side, what you have is

24:26

a teeny tiny handful of

24:29

right-wing organizations

24:29

that have no

24:32

track record and no expertise

24:35

in child welfare whatsoever.

24:37

And so it really is telling,

24:40

I think, about the arguments that they're

24:42

making around why ICWA is a bad

24:44

law or how it harms native children,

24:46

is when you just look at the positions of organizations

24:49

that are invested in researching,

24:52

what is best for kids in foster care, they

24:54

almost unanimously say that ICWA is a good law,

24:57

which I think, again, just kind of goes back to,

25:00

there's not a lot of evidence that what

25:02

these plaintiffs and what Texas is doing

25:05

is really in the best interest of native children.

25:07

And so then you have to kind of go back to, well,

25:10

then why is this lawsuit

25:12

being brought?

25:14

It feels like apples and oranges,

25:16

but like the children

25:19

are collateral damage for

25:23

corporate greed, I don't know.

25:24

I think that honestly, like

25:27

native kids have been the tip

25:29

of the spear in attacks on

25:31

tribal sovereignty for generations. And

25:33

so there was this really explicit

25:36

relationship between taking

25:38

native kids to boarding schools and getting

25:40

tribes to agree to this

25:43

policy called allotment through which tribes lost two

25:45

thirds of our land base. The government would

25:47

literally take the children of tribal

25:49

leaders to try and coerce cooperation.

25:53

And then we saw the same thing with that

25:54

child removal policy that I was talking about

25:57

that happened in the fifties and sixties. That

25:59

come-

25:59

coincided with this policy called the termination

26:02

era where Congress was actually literally trying

26:04

to get rid of tribes saying, we don't like

26:06

treaties, we don't like reservations, we don't like that

26:08

we still owe these tribes money from, you know, the billions

26:12

of acres of land that we took. And so

26:15

they're trying to just legislate tribes out of existence

26:18

and child removal went perfectly with that

26:20

policy because a tribe without children,

26:22

you know, eventually it doesn't exist anymore.

26:25

And so I think that it's, it's

26:28

sinister. It's like hard to kind of

26:30

wrap your head around. But when you understand

26:32

history, using the children of

26:34

native nations to attack tribal

26:37

sovereignty is sadly something the US has been doing

26:39

for generations.

26:41

And so if

26:44

the Supreme Court rules

26:46

that ICWA is

26:48

unconstitutional because

26:50

these white foster parents were

26:53

discriminated against based on race,

26:56

what would that look like for

26:58

native people?

27:01

That's a really good question

27:04

and a hard one to answer. It

27:06

really depends on how

27:08

they write the decision. They

27:10

could strike the placement preferences. And so

27:13

we would still have ICWA, but it would be weakened.

27:15

The other

27:16

outcome could be that ICWA goes away

27:19

completely. What would happen then

27:21

is that it would fall on each state.

27:24

It'd be kind of like abortion, some

27:26

states have their own version

27:28

of ICWA and actually what some states have been

27:30

doing like in Utah is strengthening

27:33

that or passing new laws to

27:35

make sure that there's kind of a backstop measure

27:37

if the national ICWA goes

27:40

away. But the really big

27:42

question will be is how,

27:44

if they declare ICWA unconstitutional,

27:47

how do they get there? And if they

27:49

use either this big, it's

27:51

racial discrimination argument or the other

27:53

big argument of sort of states rights

27:56

and Congress, Congress doesn't even really have

27:58

the power to pass a law. like

28:00

ICWA, if they use that

28:02

argument, it could have

28:06

a disastrous effect on

28:08

tribal sovereignty more broadly.

28:11

And that would happen, you know, kind of going back to Gorsuch's

28:13

quote about the Supreme Court being busy,

28:16

it would then kind of be up to the courts about how

28:18

this big Supreme Court decision applies

28:20

to other laws. But like we can see

28:23

with Gibson Dunn, these anti-tribal

28:26

interests are already bringing lawsuits making

28:28

these arguments. And so we

28:29

could see follow-up lawsuits that

28:32

would attack tribal sovereignty using

28:34

the same arguments, but different aspects of it.

28:37

And so that's, that's what's scary

28:39

about it. What's the best case

28:41

scenario? Like, what do you hope will happen?

28:43

Hard

28:44

to,

28:47

um, I'm a journalist and so

28:49

it's sort of hard to, I know it's

28:51

like hard to, it's hard to

28:53

be like, this is what I hope will happen.

28:55

Cause I'm sort of just like, well, this is what I think is most

28:57

likely. Um, I mean, they

28:59

could, they could decide this issue based on

29:02

standing. I mean, I think that there's a really

29:04

strong argument that the individual plaintiffs don't

29:07

have standing, which is, you know, to bring a

29:09

lawsuit to strike down a federal law, you have to say

29:11

that you are harmed by the law.

29:14

Well, how are they harmed? They gotta adopt the kids.

29:16

And also you have to say, well, that that

29:18

law being overturned

29:20

fixes the harm and all the adoptions

29:23

are finalized. So how does that work?

29:25

And so I think there are lots

29:27

of different ways they could decide it. Um, so

29:31

we'll, we'll just have to see. You

29:34

started your very first episode

29:36

of the podcast by talking

29:38

about the history of Indian boarding

29:40

schools. And you said,

29:42

I think,

29:43

quote, throughout

29:45

history, the people harming native Americans

29:48

have been motivated by two things, greed

29:53

and charity. The greedy

29:55

simply want what native people have,

29:58

but the charitable. believe they

30:01

know what Native people need

30:03

better than Native people ourselves.

30:06

You might

30:08

think that the greedy and the charitable

30:11

couldn't work together, but when

30:13

you study history,

30:15

you find that they always

30:17

do. It's almost

30:20

as if they need each other.

30:23

The greedy have the resources

30:25

and power to get things done. And

30:28

the charitable? Will the charitable

30:31

help excuse unspeakable

30:34

harm?

30:37

Why start there? Can you

30:40

explain what you meant by that? Yeah,

30:43

I think in boarding schools

30:45

there was an argument about why

30:47

the government needed to take

30:50

Native kids to course

30:52

allotment in these land sessions from tribes.

30:55

But there was also this strong argument, even

30:57

though boarding schools were horrific places

31:00

of abuse and even just like illness

31:02

and children not having enough food and

31:05

being forced to do manual labor, that

31:07

it was what was best for Native kids.

31:10

And I think you see that same coupling

31:13

in this case, you know, where there's

31:16

the corporate law firm that also has these casino

31:18

clients. But then I think that

31:20

there are people who are part

31:22

of this case who believe that what

31:24

they're doing is what is best for

31:27

these children and that they're helping Native

31:29

people. And we've seen that

31:32

in every era of harmful

31:34

policy. I mean, it's, you know, I've been going

31:36

through some historical documents

31:38

from the 1830s. And even when we were forced

31:41

on a death march from our homelands

31:43

to Indian territory, we're huge

31:45

portions of our populations died, there's

31:47

an argument that that was what was best for our

31:49

tribes.

31:50

And I think that when

31:52

non-Native people

31:56

are arguing against Native people, you

31:58

know, when Native people are saying no,

32:00

like it was what is best for our

32:02

families and our children. I think we need to listen

32:05

to native people, believe native

32:07

people. And I think

32:09

the, the amount of harm, the

32:12

amount of harm that well-intentioned

32:15

people

32:16

who thought that they knew better

32:19

than native people ourselves, what

32:22

native people needed, the amount of harm

32:24

that those people have done is incalculable.

32:27

It's, it's just, it's so immense. And,

32:31

um, I think in this case, like in

32:33

historic examples, those

32:35

perspectives need to be ignored.

32:39

Need to not be heard. And I think we need to listen,

32:41

listen to native nations and native people when it comes

32:43

to what's best for native children.

32:50

Rebecca, thank you so much for talking to

32:52

us. Thank you so much

32:55

for having me. I really appreciate it.

33:01

And that's our show. You can follow us

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33:39

This episode is produced

33:41

by Christina Kala. It was edited by Courtney

33:43

Stein. Our engineer was

33:46

Brian Jarbo.

33:48

And a big shout out to the rest of the Code

33:50

Switch massive. Jess Kung, Kamari

33:52

Devarajan, Leah Dinella, Dalia

33:54

Murtada, Vera Lynn Williams, Steve

33:57

Drummond, LA Johnson, Gene

33:59

Demby.

33:59

and Lori Lizzarraga and a special

34:02

thanks to Sam Yellowhorse Kessler.

34:04

I'm B.A. Parker. Hydrate!