What's ahead in 2023

Betting, adoption lawsuits pose greatest threat to tribes in decades, experts say

A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation’s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.

“It could have really big impacts on basically every law Congress has passed that has to do with tribes and tribal citizens,” said Rebecca Nagle, a journalist, citizen of the Cherokee Nation and host of the “This Land” podcast, which explored the Brackeen case in detail. “It’s really the legal foundation for the rights of Indigenous nations in this country.”

The highest courts in Canada and the United States are expected to decide child welfare cases this year that could have far-reaching implications for Indigenous rights on both sides of the border. In Brackeen v. Haaland, the U.S. Supreme Court will decide the future of the Indian Child Welfare Act. And in Attorney General of Québec, et al. v. Attorney General of Canada, et al., the Supreme Court of Canada will rule on the constitutionality of the federal government's Indigenous child welfare legislation, Bill C-92. Although the constitutions and arguments before the top courts in both countries are different, legal experts say the two parallel cases could affect who has the legal right to decide what's best for Indigenous children throughout the continent. Read more here.

 

KEY CASES SHARE ATTORNEY

Maverick Gaming and Chad and Jennifer Brackeen are also backed by the same legal team.

The Brackeens are challenging ICWA, a 1978 law that requires caseworkers to give preference to Indigenous families in foster and adoption placements of children who are members of a federally recognized tribe.

The law was aimed at correcting centuries of injustice.

Between 1819 and 1969, the federal government took many thousands of Indigenous kids from their homes and forced them to attend brutal schools that employed “systematic militarized and identity-alteration methodologies,” according to a report released by the U.S. Department of the Interior in May.

After the federal government ended mandatory attendance at American Indian boarding schools, officials continued to remove overwhelming numbers of Indigenous kids from their families and place them in foster or adoptive care outside their communities.

When Congress passed ICWA in 1978, studies showed that state child welfare agencies and private adoption companies were taking between 25% and 35% of Native kids from their families. And 85% of those children were placed with non-Indigenous families.

Native families are still four times as likely as white families to have kids removed from their homes, according to the National Indian Child Welfare Association.

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Native American News: 2022 in Review  

 

Martha Aupaluktuq-Hickes, left with green hat, and her mother Nancy Aupaluktuq, right, listen to Pope Francis during his visit to Iqaluit on July 29. Seven of Nancy’s eight children, including Martha, are survivors of Canada’s residential school system (Photo by Corey Larocque)

Newsmaker of 2022: The residential school survivors

 

 

 

CROOKED Podcast (update) The Heart Of It

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‘This Land’ podcast unravels complexity of child welfare in Indian Country in its second season

Sixteen judges on the United States Fifth Circuit Court of Appeals delivered a split decision in a lawsuit challenging the constitutionality of the Indian Child Welfare Act of 1978. The lawsuit charges that the law is racially based and unconstitutional because it is biased against non-Native families seeking to adopt. The 8-8 split decision largely means that portions of the ruling would apply only to cases in the Fifth Circuit district, which includes Texas, Mississippi and Louisiana, and would not directly affect ICWA cases in Alaska. (Creative Commons photo by David Schexnaydre/via Flickr)

 

By Tripp Crouse • KNBA NEWS

The award-winning podcast “This Land” returns for a second season. This one examines the legal attacks on a 40-plus-year old federal law meant to protect Native children in the U.S. 

The first season of “This Land” examined two legal cases that became incredibly important to criminal jurisdiction and recognizing Tribal land. Cherokee journalist Rebecca Nagle is the host.  LINK

Rebecca Nagle (courtesy photo)

“The podcast is about cases that are important to federal Indian law and Indigenous sovereignty that I felt like needed to be covered more.” 

Two cases pitted state jurisdiction over Tribal jurisdiction in Oklahoma, where the Creek people were forced to relocate from the Southeast during the Trails of Tears in the 1800s. They signed another treaty with the federal government in 1856.  

Oklahoma never really recognized the Mvskoke (Muscogee) Nation reservation. 

“Oklahoma's main argument was, ‘we haven't recognized these reservations in over a century. And so you can't possibly ask us to recognize them.’ Now, there was no real legal argument behind that. It was just this kind of thing of, well, eastern Oklahoma can't possibly be a reservation.”

Eventually, those cases went to the U.S. Supreme Court, and the decisions re-affirmed the Mvskoke still had a reservation in eastern Oklahoma -- and in turn, jurisdiction over its lands and Tribal sovereignty. It also reaffirmed the Tribal land of four other Tribes in the area: The Cherokee, the Choctaw, the Chickasaw and the Seminoles.

But it’s still a huge legal mess. Oklahoma continues to challenge the Supreme Court decision. 

Nagle pivoted from that story to another legal battle that’s been brewing over the Indian Child Welfare Act, or ICWA. That’s a federal law passed in 1978 intended to prevent the removal of Native children from their families and communities.

Before ICWA, the federal government was adopting Native children out of their communities to white families. 

“The federal government under the BIA (Bureau of Indian Affairs) had this program called the Indian Adoption Project, where it was literally trying to take Native kids and put them up for adoption, for them to be adopted by white families,” Nagle said. “There was just deep racial bias within (the) child welfare system. So social workers were seeing Native kids being raised by an aunt or being raised by a grandma. But because they weren't being raised by the biological parent, that was child abandonment.” 

The Association on American Indian Affairs published a report that said between 1941 and 1967 as many as one-third of Native children were separated from their families. 

“And so it was a crisis -- about a third of Native kids were gone,” Nagle said. “You talk to Elders and people from that time and they'll talk about how there were communities, Native communities, where there just weren't kids.” 

The Indian Child Welfare Act was passed in 1978. 

“It was really created under this time where white homes were seen as being inherently better than Native homes. And it's this remedial measure to stop that racism in the system.”

ICWA requires that when child welfare workers consider the adoption of Native children -- they must first consider the family, the Tribe or Tribes, or at the very least another Native home. 

The law applies to Native children who are enrolled members of their Tribe or Tribes -- or are eligible for enrollment.

A years-long challenge to ICWA began brewing when a Texas couple, the Brackeens, fostering a Native toddler, were told they couldn’t adopt the child. 

“The child welfare department there in Texas and also the child welfare departments of Cherokee Nation, Navajo Nation, were looking for a permanent home for the child,” Nagle said. “Navajo Nation found a Navajo home, and because of ICWA, that's where the child was going to go. But then the Brackeens sued. And the way that they tell it is that ICWA was threatening to tear their family apart and that they were told they couldn't raise this child because he was Native and they were not. And so it was unfair to them and it was also unfair to the child, and that's unconstitutional.”

The Brackeens took their case to state court and then to federal court, until a split en banc decision in the 5th Circuit Court of Appeals -- ruled that in this case ICWA was constitutional in parts, but it wasn’t in others. 

But that decision really only affects court cases in the 5th Circuit -- which covers the federal judicial district in Louisiana, Mississippi and Texas.

“I think that the actual story of the custody cases show why there's still a deep bias in the system against our families -- against Native families and especially Native families who are struggling with poverty or homelessness or other issues,” Nagle said. “The system really doesn't view those families, at least in these cases, as favorably as white families and as families that have more money.” 

Nagle says podcast producers interviewed one grandmother, who helped raise a grandchild before she went into foster care.

The grandmother fought for three years to be considered as a placement for the grandchild -- and then she had to fight the non-Native foster family before she was finally able to adopt the grandchild.

"She had spent six years total fighting first the system and then this foster family to be able to adopt her grandchild," Nagle said. "If that bias hadn't been in the system, she wouldn't have had to go through all that, but also her grandchild wouldn't have had to go through all of that. 

Nagle said a lot of work went into producing this second season of the podcast. 

“I would say making podcasts is hard and I like to think that I'm learning and getting better at it,” Nagle said. “This season it was a story that we really had to uncover. And so we had to do a ton of legwork, one to just get our hands on the details of these custody cases and then two to really find out like what is going on behind this attack on ICWA.” 

Nagle says that the team sent 60 Freedom of Information Act requests during the reporting process.  But it has made a difference in the reporting and thoroughness -- in comparison with some mainstream media outlets like The New York Times, The Atlantic or NPR.

“I can look at those articles, especially the Atlantic article, and find factual inaccuracies and also just sort of and we also found factual inaccuracies within federal court documents and things that have been filed, a story that's been told to federal court,” Nagle said. “And so it became really, really, really important for us to get to the truth and to get to a well documented truth. And that that was a lot of legwork.”

Nagle says within the ICWA cases are broader implications -- like Tribal sovereignty and the rights of Tribes. 

“We need to think about the safety and well-being of our children. We also need to think about the legal status of Tribes that this case is attacking the heart of it,” Nagle said. “If you are worried about that, if you care about Indigenous rights in this country, this is a case to be paying attention to.”

Episodes of “This Land” season 2 drop every Monday through October 4. 

Podcasts: Crooked, This Land

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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.

podcast link

excerpt:

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.

 

new episode

THIS LAND:

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News: ICWA, This Land podcast (and more)

 (click headlines) important...Indian Law News Coverage (8/23/2021)

This Land podcast, series 2:

In This Episode

ALM – as referred to in court documents – is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn’t. So they sued. Today, the lawsuit doesn’t just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights.   In season 2 of This Land, host Rebecca Nagle investigates how the far right is using Native children to quietly dismantle American Indian tribes. PREMIER August 23rd.

 

Show Notes

• Resources For Survivors (Crooked.com link)
• Resources For Journalists & Investigators (Crooked.com link)
• Have a tip? Share it with our reporting team (SecureDrop)
• Jennifer Brackeen’s Personal Blog (Wayback Machine)
• An Untold Number Of Indigenous Children Disappeared At U.S. Boarding Schools. Tribal Nations Are Raising The Stakes In Search Of Answers. (The Intercept)
• My Relatives Went To A Catholic School For Native Children. It Was A Place Of Horrors (The Guardian)
• Indigenous Children Finally Headed Home (Indian Country Today)
• Indian Boarding School Investigation Faces Hurdles In Missing Records, Legal Questions (NBC News)

U.S. Boarding Schools To Be Investigated (Indian Country Today)

 

read more👇

The Guardian: “Why is the US right suddenly interested in Native American adoption law?”

A 1978 law tried to remedy adoption practices created to forcibly assimilate Native children. Now conservative lawyers are arguing that the law constitutes ‘reverse racism’

Members of the Mosakahiken Cree Nation hug in front of a makeshift memorial at the former Kamloops Indian Residential School to honor the 215 children whose remains have been discovered buried near the facility, in British Columbia. Photograph: Cole Burston/AFP/Getty Images

There’s a reason why “forcibly transferring children” from one group to another is an international legal definition of genocide. Taking children has been one strategy for terrorizing Native families for centuries, from the mass removal of Native children from their communities into boarding schools to their widespread adoption and fostering out to mostly white families. It’s what led to the passage of the Indian Child Welfare Act (ICWA) of 1978, touchstone legislation that aimed to reverse more than a century of state-sponsored family separation.

 

 MORE NEWS 

• Indigenous leaders want ‘meaningful action’ from next gov’t. Here are the promises so far

  It’s about time Indigenous peoples in Canada get “mutual respect” and “meaningful actions” from their government, says a former Manitoba grand chief.

  In an interview with Global News on Friday, Sheila North, former Manitoba Keewatinowi Okimakanak grand chief, said party leaders must present solid policies during this federal election to get that respect.

  “That is a big issue that needs to be addressed by all parties, and follow it up with meaningful actions that will resonate right into the heart of Indigenous people, especially on remote communities; if we see a difference in remote communities, then we’ll know we’re actually making progress in achieving reconciliation in this country,” she said. Visit

from NICK's Blog

This is really the bare minimum of information, so I really encourage you to do your own research and learn more about the atrocities that the American and Canadian governments committed against the indigenous peoples of this land.

• The ‘Indian Residential School System’ in Canada was founded as an attempt to continue assimilating indigenous peoples into the western culture – this included but was not exclusive to religious indoctrination into Christianity, learning English, and domestic and agricultural work exclusive to Anglo-Saxon traditions. 
• The system came into use after the passing of the ‘Indian Act’ in 1876 and the last federally-funded school shut down in 1997. 
  • Many Indigenous groups were excluded as part of the Indian Act such as the Metis, the Inuit, and “non-status Indians” (e.g indigenous children with parents from different tribes or other indigenous individuals from tribes not recognized by the federal government at the time). Therefore many Indigenous populations were without rights or the Indian Act, as the Indian Act was meant to replace Canada’s “Charter of Rights and Freedoms” for Indigenous groups acknowledged by the federal government. 
• The schools were extremely harmful to indigenous children – removing them from their homes and families often without consent, depriving them of their ancestral languages, and exposing them to numerous forms of abuse including (but certainly not limited to) experimentation, malnutrition, neglect, arduous labor, and sexual abuse.
• Survivors of residential schools often showed signs of the trauma they endured in post-traumatic stress disorder, alcoholism, substance abuse, and suicide.
• In 2021 alone, thousands of unmarked graves have been found at the locations of former residential schools.
• Residential schools were not limited to just Canada!
• Thousands of Native American “boarding schools” existed in the United States between the 1700s and the 1900s with similar conditions.
  • U.S. Army Officer Richard Henry Platt, who founded one of the Residential Schools in Pennsylvania was famous for stating “kill the Indian in him, and save the man” with the similar ideology of assimilating indigenous children under the belief that it was better for indigenous populations.

  • Sources:

  • indigenousfoundations.arts.ubc.ca/the_residential_school_system/
  • indigenousfoundations.arts.ubc.ca/indian_status/
  • www.bbc.com/news/magazine-33001425
  • books.google.com/books?id=TSGmglyxgzkC&pg=PP1#v=onepage&q&f=false
  • www.nytimes.com/2021/07/19/us/us-canada-indigenous-boarding-residential-schools.html
  • projects.leadr.msu.edu/makingmodernus/exhibits/show/indian-industrial-schools/richard-henry-pratt
  • www.youtube.com/watch?v=peLd_jtMdrc
    
    

THIS LAND: Season 2 Podcast Debuts August 23

 LISTEN:  Here

This season is all about the Indian Child Welfare Act and the federal attacks on it.

ALM – as referred to in court documents – is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn’t. So they sued. Today, the lawsuit doesn’t just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights. 

In season 2 of This Land, host Rebecca Nagle investigates how the far right is using Native children to quietly dismantle American Indian tribes. 

Tune in beginning August 23rd.

Some White supremacists don't know we can REALLY SEE what they are doing