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Speaker 1: Just a note before we get started. The stories we're

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Speaker 1: sharing this season touch on different kinds of trauma. Please

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Speaker 1: take care of yourself while you listen. In this sprawling

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Speaker 1: lawsuit that pitts foster families against Native families and tribes

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Speaker 1: against states, there is actually one point that everyone agrees

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Speaker 1: on that the history of Native families being separated is tragic.

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Speaker 1: It's a history that people who are still alive today

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Speaker 1: survived people like Sandy Whitehawk.

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Speaker 2: How me takya pi chante nape chiusip Lakota mia Chakata

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Speaker 2: na jiwa Suchango la Cota matah greeting's relatives. My name

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Speaker 2: is Sandy Whitehawk. My Lakota name is stands in the center.

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Speaker 2: Woman and I come from the Roast Bud Reservation in

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Speaker 2: South Dakota.

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Speaker 1: Growing up on the roset Reservation in the nineteen fifties,

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Speaker 1: kids knew to hide when strange cars came up the driveway.

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Speaker 2: I've heard people say, yeah, we had a drill in

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Speaker 2: our house that if a car drove up the driveway,

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Speaker 2: we knew that it would be somebody from the government

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Speaker 2: or social worker or something.

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Speaker 1: But one day Sandy wasn't fast enough.

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Speaker 2: I remember one of my uncles saying that he remembers

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Speaker 2: the day that the social worker came and got me.

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Speaker 2: Drove into the driveway and I was toddling around, and

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Speaker 2: they were all sitting around the house. As far as

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Speaker 2: I know, that's how it was told to me. And

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Speaker 2: she just simply got out of the car, scooped me up,

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Speaker 2: and put me in the car.

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Speaker 1: Her relatives watched the whole thing.

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Speaker 2: Could you imagine what that would have been like. Could

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Speaker 2: you imagine that you knew not to move and not

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Speaker 2: to do anything, and not to grab me and fight

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Speaker 2: for me, because they would have been put in jail

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Speaker 2: and I would have still been taken.

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Speaker 1: The first thing Sandy remembers about her white adoptive family

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Speaker 1: was their.

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Speaker 2: Truck, and I remember that it was a red truck,

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Speaker 2: and I remember being lifted. I have this sensation of

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Speaker 2: being lifted and put between these two people, and everything

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Speaker 2: was so different. I just remember smell and what my

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Speaker 2: white adoptive mom's arm looked like, my dad's adoptive dad's

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Speaker 2: overhauls looked like the dashboard. I have this, like it's

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Speaker 2: incredibly clear picture. But right after that, I am in

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Speaker 2: the back of the truck looking in the front of

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Speaker 2: the truck watching this little brown girl. So at eighteen

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Speaker 2: months old, I disassociated to protect myself because I was

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Speaker 2: I was terrified, you know, because these weren't anybody I knew.

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Speaker 1: That red truck took Sandy away from her family and

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Speaker 1: her tribe to a small, rural white community. Being adopted

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Speaker 1: by a white family was supposed to give Sandy the

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Speaker 1: chance at a better life, but it didn't. Sandy's adoptive

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Speaker 1: mom was abusive.

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Speaker 2: When I look back, she was suffering greatly. However, the

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Speaker 2: abuse that I went through then because of hers was

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Speaker 2: you know, pretty, It was really hard. The sexual violation occurred,

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Speaker 2: the beatings occurred, the berating, the spiritual abuse, telling me

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Speaker 2: from the time I could remember that I was going

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Speaker 2: to go to hell, and mostly because I was Indian.

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Speaker 1: Sandy has this vivid memory from when she was about

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Speaker 1: eleven or twelve. Her mom would have these rages.

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Speaker 2: I just remember I scurried up the stairs to get

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Speaker 2: away from her, and she was screaming and screaming, and

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Speaker 2: then there's this little landing. I could look down at

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Speaker 2: her and I seen her crying really hard and still

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Speaker 2: saying mean things, and she goes, I should have just

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Speaker 2: left you on the reservation. You're so ungrateful. Nothing I

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Speaker 2: do is good enough for you. You're just completely ungrateful.

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Speaker 2: And I remember thinking, what's our reservation? I should have

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Speaker 2: left you on the reservation. What does that mean.

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Speaker 1: Around the same time that Sandy was growing up in

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Speaker 1: a white home, a national advocacy group got word of

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Speaker 1: a problem. Tribal leaders reported their children were missing. The group,

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Speaker 1: the Association on American Indian Affairs, conducted a huge national survey.

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Speaker 1: What they found was shocking. Twenty five to thirty five

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Speaker 1: percent of all Native children were on removed from their

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Speaker 1: families and their tribes. Here's Bert Hirsch who led the.

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Speaker 3: Survey, and the idea was literally to separate these people,

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Speaker 3: the parents and their children from their tribal communities permanently,

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Speaker 3: and ultimately the hope was the tribes themselves would disappear.

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Speaker 1: Last episode, I told you about boarding schools. They were

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Speaker 1: followed by another federal program called the Indian Adoption Project.

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Speaker 1: The government paid the Child Welfare League of America to

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Speaker 1: take Native children and put them up for adoption by

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Speaker 1: white families. Bert and his team found white families who

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Speaker 1: were using those kids for farm labor. The Indian Adoption

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Speaker 1: Project fit into this era of federal policy when the

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Speaker 1: government was literally trying to get rid of tribes, and

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Speaker 1: a tribe without children doesn't have a future. This type

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Speaker 1: of systemic racism is easy to spot because it comes

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Speaker 1: with intent. But there was another reason so many Native

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Speaker 1: kids were missing bias in the system.

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Speaker 4: Rarely were their allegations of child abuse, but neglect was rampant,

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Speaker 4: and it was premised largely on white supremacist thoughts that

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Speaker 4: Indian parents virtually by definition, were unfit to raise children,

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Speaker 4: that Indian reservations, virtually by definition, were unfit environments for children.

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Speaker 5: To be raised in.

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Speaker 1: It took another ten years of legal work organizing an advocacy,

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Speaker 1: but in nineteen seventy eight, Congress finally voted on legislation

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Speaker 1: to address the problem. Bert was there in the Senate chambers.

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Speaker 5: And it was way late at night, if I remember correctly,

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Speaker 5: I was in the Senate gallery. It was like midnight

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Speaker 5: or after midnight already at that point, because they were

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Speaker 5: trying to get all this other legislation passed first.

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Speaker 1: He was worried it wouldn't get through.

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Speaker 3: But sure enough, at the very end Bird called it

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Speaker 3: up and it passed on unanimous consent.

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Speaker 1: And on November eighth, nineteen seventy eight, President Jimmy Carter

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Speaker 1: signed the Indian Child Welfare Act into law. IKWA was

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Speaker 1: created the way we normally think about changing federal laws

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Speaker 1: through legislation. It took ten years of research, congressional testimony, organizing,

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Speaker 1: and finally a vote. And that vote in a democracy

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Speaker 1: is supposed to reflect the will of the people. But

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Speaker 1: there is this other way to change federal laws, one

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Speaker 1: that doesn't congress. If you have money and resources, you

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Speaker 1: can take your issue to federal court, and that's what

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Speaker 1: the people trying to get rid of IQUA are doing.

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Speaker 1: You're listening to This Land, a podcast about the present

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Speaker 1: day struggle for Native rights from Cricket Media. I'm your host,

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Speaker 1: Rebecca Nagel Goheen Daaladon d lac Ayete Gela, citizen of

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Speaker 1: Cherokee Nation. This season, we're following how a string of

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Speaker 1: custody battles over Native children turned into a federal lawsuit,

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Speaker 1: threatening everything from tribal sovereignty to civil rights. The Brakins

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Speaker 1: and their lawyers say that stories like Sandy Whitehawk are tragic,

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Speaker 1: but that tragedy is in the past, and Native children

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Speaker 1: don't need EQUA anymore. They say that while the law

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Speaker 1: was well intended, today it actually harms Native kids, and

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Speaker 1: their evidence for that harm doesn't come from data, or

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Speaker 1: tribes or even child welfare experts. It's a story, the

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Speaker 1: story of what happened when a white couple wanted to

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Speaker 1: adopt a Native toddler. But we dug into their story

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Speaker 1: and it didn't add up. Matthew McGill looks at IQUA

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Speaker 1: through the lens of his clients, the Brakenes.

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Speaker 6: I suppose one could dismiss their situation as merely an anecdote,

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Speaker 6: but that is how every case in the Supreme Court

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Speaker 6: is an anecdote of its own. I don't think that

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Speaker 6: Brakeenes ought to be dismissed because they are outnumbered by other,

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Speaker 6: more routine applications of IQUA.

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Speaker 1: McGill is a partner at that big corporate law firm

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Speaker 1: we told you about last episode. Gibson Done. He declined

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Speaker 1: to speak with us. This is him speaking on a

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Speaker 1: panel hosted by the right wing organization the Cato Institute.

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Speaker 6: They had been the foster parents to a child for

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Speaker 6: about two years, and they had petitioned to adopt that

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Speaker 6: child then, although it was unrebutted that it would do

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Speaker 6: great damage to this somewhat troubled two year old to

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Speaker 6: remove him from the only parents really he had ever

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Speaker 6: known that. Nevertheless, the family court in Texas held that

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Speaker 6: the adoption petition must be denied and that the child,

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Speaker 6: in due course, would be transferred to these strangers in

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Speaker 6: New Mexico.

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Speaker 1: And according to Matthew McGill, that decision to pick a

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Speaker 1: Native family a Navajo family over his clients constituted racial discrimination,

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Speaker 1: discrimination against white people, which he says is unconstitutional because

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Speaker 1: laws aren't supposed to treat people differently based on race.

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Speaker 6: It obviously discriminates on the basis of race. When you

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Speaker 6: deny non Indian families such as the Brakeenes, the same

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Speaker 6: opportunity to adopt children as you would give to any

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Speaker 6: family of any of five hundred plus Indian tribes.

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Speaker 1: McGill says the law also discriminates against Native children.

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Speaker 6: I would say that it is a legitimate goal to

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Speaker 6: prevent the unjustified breakup of Indian families, But what does

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Speaker 6: that have to do who with the child the Brakeen

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Speaker 6: is trying to adopt. I mean, this was not a

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Speaker 6: child who was shunted off to some boarding school for

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Speaker 6: no reason at all.

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Speaker 1: The Brakkeens and their lawyers say what happened in their

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Speaker 1: case was so wrong, all of Iqua should go away.

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Speaker 1: Since so much as writing on the story of one

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Speaker 1: case as a reporter, I needed to know if that

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Speaker 1: story was true, and that's tricky because the details of

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Speaker 1: Antonio's custody case are confidential. We dug through any documents

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Speaker 1: we could find, talk to dozens of people, and after

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Speaker 1: months of prying and poking around, finally I got a

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Speaker 1: call from our managing producer, Amy Westervelt.

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Speaker 7: Hey, Amy's Hey, Rebecca, I have some good news.

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Speaker 1: We cracked it open, and what we got was a

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Speaker 1: detailed timeline of Antonio's custody case. Knowing who filed what

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Speaker 1: and when changed everything I thought I knew about that story.

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Speaker 1: It turns out Antonio did have a Native family who

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Speaker 1: loved and cared for him the first year of his

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Speaker 1: life his grandparents, but because of his mom and dad's

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Speaker 1: substance abuse, CPS got involved and they decided he needed

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Speaker 1: to go into foster care. After Antonio's parents' rites were terminated,

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Speaker 1: Navajo Nation found a Navajo family Within a couple months

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Speaker 1: after that, things moved pretty fast. The Brakins hired a

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Speaker 1: local family lawyer and filed a bunch of paperwork to

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Speaker 1: try and keep Antonio in their home. In one motion,

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Speaker 1: they tried to kick Navajo Nation out of the case.

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Speaker 1: In it, they spelled the word Navajo with an H,

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Speaker 1: not a J every time it was written. But that

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Speaker 1: motion and others all got thrown out. That's the family

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Speaker 1: court decision McGill was talking about. And that's when, according

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Speaker 1: to Jennifer's blog, they started looking for help with an appeal,

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Speaker 1: like how long does it take for them to get

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Speaker 1: connected to Gibson and done?

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Speaker 7: Okay, that's where this just like blew my mind because

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Speaker 7: it's August twenty second. They get denied by August twenty eighth.

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Speaker 7: What Wrickets of Gibson done is filing motions?

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Speaker 4: What that's like? That's the day day.

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Speaker 8: That's bonkers.

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Speaker 1: That is so bonkers, not even a week. Most law

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Speaker 1: firms couldn't write that kind of appeal in six days.

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Speaker 1: It left me wondering were the Brakeens looking for legal

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Speaker 1: help or was Gibson done looking for plaintiffs? And how

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Speaker 1: did they find each other? That quickly, and Gibson Dunn

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Speaker 1: wasn't the only power player ready to jump in.

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Speaker 8: Someone else shows up. Who the freaking Texas Attorney General.

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Speaker 8: Why yes, that was just like really shocked me because

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Speaker 8: I in family court the office of the Texas Attorney

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Speaker 8: General and like some just like like some kid in

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Speaker 8: foster care, they're.

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Speaker 1: Intervening in that case to say that iqua should be

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Speaker 1: declared unconstitutional. Mm hmm, that's right. What the hell, that's

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Speaker 1: a bizarre The office of the Attorney General, one of

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Speaker 1: the most powerful politicians in the entire state, was there

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Speaker 1: in family court. Imagine if you were filing for divorce

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Speaker 1: or in the middle of an ugly custody dispute and

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Speaker 1: your state ag showed up. I ran this by a

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Speaker 1: few lawyers. They were all shocked.

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Speaker 9: State AG's office would not participate in a case like

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Speaker 9: that at all unless it reached perhaps an appellate or

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Speaker 9: even a supreme court level within the state.

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Speaker 1: That's Matthew Fletcher. He's a citizen of Grand Travers Band

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Speaker 1: of Ottawa and Chippewa Indians and a law professor at

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Speaker 1: Michigan State University.

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Speaker 9: So it's extraordinary for high level persons in the attorneys

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Speaker 9: in the State AG's office to step down into the

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Speaker 9: trial level and participate.

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Speaker 1: The Texas AG's office didn't find out about Antonio's case

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Speaker 1: through their child welfare department. They found out through Gibson Dunn.

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Speaker 1: Once we confirmed this, we weren't surprised because many of

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Speaker 1: the lawyers who work at Gibson Dun's Texas offices used

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Speaker 1: to work for the Attorney General and vice versa. It's

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Speaker 1: like a revolving door. The Texas ag came to Family

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Speaker 1: Court with an agenda not about Antonio, but about he

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Speaker 1: asked that Terrant County judge to declare iqua unconstitutional. It

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Speaker 1: turned a custody dispute, a court case that determined the

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Speaker 1: life of a two year old, into a political battleground.

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Speaker 1: We already knew from Jennifer's blog and federal court documents

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Speaker 1: that the Brakins were able to adopt Antonio after both

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Speaker 1: Navajo Nation and Cherokee Nation agreed to the adoption, but

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Speaker 1: we didn't know when the tribes agreed, and that detail

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Speaker 1: stopped me in my tracks because it was the same

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Speaker 1: week the Brakens filed the federal lawsuit. I shared this

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Speaker 1: with law professor Matthew Fletcher. So they filed the federal

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Speaker 1: lawsuit two days before there's court record that all of

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Speaker 1: the barriers to the adoption have been lifted.

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Speaker 2: Wow, that's insane.

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Speaker 9: They were going to win. I mean, that's baffling and

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Speaker 9: also disturbing that they were willing to go to those

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Speaker 9: lengths these It's apparent to me these children are irrelevant

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Speaker 9: that they are part of the tool designed to destroy

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Speaker 9: the NHL Welfare Act. For reasons that I frankly do

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Speaker 9: not understand.

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Speaker 1: The Brakeenes didn't file a federal lawsuit when they were

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Speaker 1: losing custody. They filed the lawsuit when they were winning.

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Speaker 1: Here is how Jennifer's blog, read by a voice actor,

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Speaker 1: describes the time they spent waiting to adopt Antonio.

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Speaker 10: We did our Christmas card photoshoot at Thanksgiving. We had

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Speaker 10: been told by CPS we would definitely have the adoption

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Speaker 10: by Christmas, so I planned the card accordingly, and as

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Speaker 10: the days and weeks passed, when I would have definitely

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Speaker 10: had my card in the mail by now, we still

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Speaker 10: didn't even have a date. So we mailed the card

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Speaker 10: on the way home from the adoption on January eighth,

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Speaker 10: and Chad cleverly closed the envelopes with some red tape

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Speaker 10: and wrote, sorry, this year our card got caught up

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Speaker 10: in some red tape.

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Speaker 1: So those months they spent waiting to adopt Antonio had

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Speaker 1: nothing to do with Iqua. It was just Texas being

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Speaker 1: slow to finalize the paperwork. But here's how that same

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Speaker 1: time period was described in court documents McGill filed right

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Speaker 1: before Christmas. Quote for months, their adoption of Alm has

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Speaker 1: been delayed, caught in a terrifying whirlwind of court proceedings

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Speaker 1: that occurred only because the federal government classifies Alm as

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Speaker 1: an Indian child. McGill alleged his clients were caught in

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Speaker 1: a terrifying whirlwind created only by Iqua after the tribes

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Speaker 1: agreed to the adoption, after they all knew the Brakeens

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Speaker 1: would adopt Antonio. Normally, when building a big federal lawsuit,

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Speaker 1: you want to pick the plaintiffs with the strongest case,

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Speaker 1: which makes the Brakens an odd choice. It's almost like

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Speaker 1: a white student suing a university over affirmative action because

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Speaker 1: they were worried they wouldn't get accepted, but in the

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Speaker 1: end they did. It just doesn't make sense. But there's

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Speaker 1: this other way, the Brakeens are the perfect plaintiffs. It's

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Speaker 1: less about how lawsuits work and more about how politics work,

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Speaker 1: specifically politics in the state of Texas. The federal lawsuit

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Speaker 1: Rakkeen v. Holland is now waiting on the steps of

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Speaker 1: the Supreme Court. It got this far because the foster

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Speaker 1: parents have powerful company states more than one. Here's law

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Speaker 1: Professor Matthew Fletcher again.

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Speaker 9: When the state says, hey, there's this federal law that

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Speaker 9: we think is wholly unconstitutional. Even if what the state

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Speaker 9: is saying is patently frivolous, it's still going to get

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Speaker 9: a hearing, in a serious one.

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Speaker 1: When the Brakeens filed their federal lawsuit, Texas was right

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Speaker 1: there with them. We wanted to know why, and we

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Speaker 1: had a way to find out. Public offices like an

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Speaker 1: attorney general have to respond to Freedom of Information Act

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Speaker 1: requests or foyas, so we filed FOYA requests to the

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Speaker 1: office of the Texas Attorney General. They stonewalled us, but

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Speaker 1: in building their case, they gave us a workaround because

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Speaker 1: they brought on other states. So we foyed those states

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Speaker 1: and uncovered a web of communication. The same day Texas

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Speaker 1: filed the federal lawsuit, we sent out an email blast

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Speaker 1: inviting other states to join. The email was sent to

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Speaker 1: mostly Republican attorneys general with the subject line new federalism

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Speaker 1: case opportunity. Of all the states Texas emailed, only three

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Speaker 1: got back Indiana, Louisiana, and Ohio. And here's what's strange

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Speaker 1: about those states.

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Speaker 9: It's the states that have few Indian people, few Indian

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Speaker 9: tribes are the ones who are using this as a

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Speaker 9: vehicle to ascertain states rights.

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Speaker 1: In the lawsuit, twenty six states came out against Texas

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Speaker 1: and in support of IQUA. Those states represent ninety four

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Speaker 1: percent of all tribes in the US. The four states

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Speaker 1: who say IQUA is a bad BA have less than

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Speaker 1: one percent of all tribes in the United States. Those

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Speaker 1: states also have very few EQUA cases. When we sent

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Speaker 1: Louisiana a public information request, they told us they had

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Speaker 1: thirty two open cases involving Native children. Their annual caseload

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Speaker 1: is over ten thousand. In that email to other state ags,

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Speaker 1: Texas laid out why IQUA is a states rights issue.

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Speaker 1: It's all about the Tenth Amendment.

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Speaker 9: The Tenth Amendment says that states have all the powers

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Speaker 9: left to govern that are not explicitly delegated to the

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Speaker 9: United States, and that's a.

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Speaker 11: Lot of power.

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Speaker 1: Most family law is governed by states, marriage, divorce, custody

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Speaker 1: over kids, how much child support you have to pay,

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Speaker 1: and so on and so. Texas says IQUA, by budding

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Speaker 1: into child welfare proceedings, is an example of federal overreach.

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Speaker 1: Texas also says that IQUA is a burden on its

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Speaker 1: child wealth welfare agency.

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Speaker 9: So, for example, IQUA requires states state agencies to send

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Speaker 9: notice to India tribes, and Texas says, we don't want

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Speaker 9: to notify tribes. You can't make us. It's kind of

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Speaker 9: akin to a neer neanor neanor argument. We don't want

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Speaker 9: to do it. You can't make us kind of thing.

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Speaker 1: To make sure we weren't missing anything, we reached out

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Speaker 1: to tribes, social workers, and child welfare agencies in those

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Speaker 1: four states, and what we found made the lawsuit even

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Speaker 1: more perplexing because the state's own child welfare agencies don't

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Speaker 1: support it. Before joining the lawsuit, the Attorney General of

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Speaker 1: Louisiana reached out to his state's child welfare agency. The

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Speaker 1: agency told him IQUA is a great law, not a burden,

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Speaker 1: which is why the Secretary of Children and Family Services

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Speaker 1: was shocked to see him join the lawsuit. Two days later,

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Speaker 1: we heard similar surprise in Texas.

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Speaker 12: The Texas Department of Family and Protective Services has a

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Speaker 12: great working relationship with all three federally recognized tribes here

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Speaker 12: in Texas.

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Speaker 1: This is Leah Lopez. She is a social worker who

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Speaker 1: handles most of the EQUA cases for the Isleta del

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Speaker 1: ser Pueblo, a tribe in al Paso, Texas.

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Speaker 12: If there's an investigation and they have reason to believe

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Speaker 12: that they're one of our families, they will give us

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Speaker 12: a call. Our on call worker goes out with the

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Speaker 12: investigator and they work the case together. It was surprising

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Speaker 12: that this lawsuit came to be so.

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Speaker 1: If these Attorneys general aren't following the advice of their

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Speaker 1: own child welfare agencies, who are they listening to? And

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Speaker 1: that was the biggest discovery in the pile of documents

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Speaker 1: we uncovered. In all those thousands of pages of emails,

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Speaker 1: we saw exactly who the ags are listening to, who

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Speaker 1: they're stregizing with, who they go to for legal advice,

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Speaker 1: who they send drafts of documents to for approval. It's

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Speaker 1: not child welfare experts. It's a handful of anti EQUA lawyers,

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Speaker 1: and that communication between anti EQUA advocates and state ags

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Speaker 1: about using IQUA to advance states' rights has been going

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Speaker 1: on for years, since way before the Brakkins case, since

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Speaker 1: before Antonio was born. The Brackens didn't just have states

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Speaker 1: on their side. They got help from another unexpected place,

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Speaker 1: a federal judge. That story after the break. The strategy

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Speaker 1: in this case isn't new. Texas has used the courts

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Speaker 1: to challenge federal laws and statutes for a long time.

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Speaker 7: More than one hundred House Republicans on Thursday signed onto

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Speaker 7: an amicus brief in support of the Texas lawsuit aimed

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Speaker 7: at overturning the election result in four swing states.

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Speaker 2: Now comes a new challenge brought by Texas and other

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Speaker 2: GOP dominated states that Obamacare must be struck down in

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Speaker 2: its entirety.

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Speaker 3: Texas is trying to invalidate the results of the presidential

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Speaker 3: election in key swings.

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Speaker 1: A lot of those cases were filed in one judge's district.

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Speaker 13: A federal judge in Texas has temporarily blocked the Obama

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Speaker 13: administration's public.

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Speaker 8: School A federal judge in Fort Worth declared the Affordable

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Speaker 8: Care Act unconstitutional.

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Speaker 14: US District Judge Read O'Connor in Fort Worth agreed with

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Speaker 14: a Republican led coalition of twenty states who brought the lawsuit.

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Speaker 1: That was news coverage a federal judge read O'Connor striking

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Speaker 1: down the Affordable Care Act and Obama ERAIC guidelines on

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Speaker 1: transgender bathrooms and schools. He's also ruled against DHAKA and

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Speaker 1: family leave for LGBTQ parents. Here's Matthew Fletcher.

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Speaker 7: So he has a.

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Speaker 15: History of granting injunctions or striking down federal statutes that

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Speaker 15: conservatives tend to not like. So if you want a

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Speaker 15: federal statute to go away, at least for a little while,

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Speaker 15: you can always count at rit O'Connor.

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Speaker 1: In twenty eighteen, the Associated Press called him conservatives go

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Speaker 1: to judge. Even the Wall Street Journal has accused him

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Speaker 1: of going too far. Judge ried O'Connor serves in the

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Speaker 1: Northern District of Texas, and the way his district works

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Speaker 1: is unique. If you want a federal lawsuit to go

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Speaker 1: to the Supreme Court, you have to start in district court.

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Speaker 1: It's like the ground level. District courts have a lot

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Speaker 1: of judges, so when you file a lawsuit, you don't

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Speaker 1: know who will hear your case. But the Northern District

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Speaker 1: of Texas is different. There, judges have worked out their

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Speaker 1: own system to divvy up cases, and so when you

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Speaker 1: file a civil lawsuit and a handful of counties, you

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00:29:06,240 --> 00:29:09,240
Speaker 1: have a good chance of winding up and judge read

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Speaker 1: O'Connor's courtroom. Over half the lawsuits the Texas ag has

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Speaker 1: filed challenging federal laws have landed and read O'Connor's lap.

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Speaker 1: And here's where the Brackens start to make sense as plaintiffs.

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Speaker 1: It's not because of the details of their custody case.

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Speaker 1: It's because of where they live in Terran County, Texas,

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Speaker 1: in read O'Connor's district.

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Speaker 9: If you think you can find a judge or a

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Speaker 9: court that would be supportive a position that you're taking strategically,

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00:29:44,480 --> 00:29:46,920
Speaker 9: it always makes sense to go to that venue if

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Speaker 9: you possibly can. Lawyers and judges don't like to talk

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Speaker 9: about it, but that's a realistic thing.

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Speaker 1: They venue shopped. Remember earlier when I said there were

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Speaker 1: factual discrepancies between the details of the custody case and

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Speaker 1: what the Brakeens claimed in federal court, Well I found

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00:30:06,560 --> 00:30:11,000
Speaker 1: discrepancies like that all over the place, and they really matter.

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Speaker 1: The whole lawsuit turns on the story the Brackens and

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Speaker 1: their lawyers tell. That story determines whether or not the

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Speaker 1: Brakeens were harmed by EQUA, whether or not that harm

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Speaker 1: violated their constitutional rights, whether or not the Brackens have

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Speaker 1: the legal standing to bring this lawsuit in the first place.

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Speaker 1: But early on, Judge ried O'Connor did the Brakens, McGill

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Speaker 1: and the Texas ag a real favor. Federal courts have

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Speaker 1: this process for collecting evidence in a civil lawsuit. It's

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Speaker 1: called discovery, but McGill argued that wasn't necessary, and Judge

437
00:30:52,720 --> 00:30:56,360
Speaker 1: rite O'Connor agreed. Now that the case is on appeal,

438
00:30:56,680 --> 00:31:00,080
Speaker 1: it's too late. So what that means is that the

439
00:31:00,120 --> 00:31:05,800
Speaker 1: federal judges reviewing this case are taking everyone on their word.

440
00:31:06,360 --> 00:31:10,120
Speaker 1: They don't have all the documentation that I have. You,

441
00:31:10,920 --> 00:31:15,120
Speaker 1: as a listener to this podcast, have information that has

442
00:31:15,360 --> 00:31:20,120
Speaker 1: never been presented in federal court. And all of this,

443
00:31:20,880 --> 00:31:26,120
Speaker 1: the story, the venue shopping, the strategy, it worked.

444
00:31:28,160 --> 00:31:30,920
Speaker 3: Shock Waves are going through the Native American community, and.

445
00:31:30,920 --> 00:31:34,760
Speaker 1: That's after a federal judge calls landmark legislation involving Native

446
00:31:34,800 --> 00:31:40,240
Speaker 1: American adoption illegal. In October of twenty eighteen, Judge Read

447
00:31:40,320 --> 00:31:46,680
Speaker 1: O'Connor ruled that IQUA in its entirety is unconstitutional. There

448
00:31:46,680 --> 00:31:49,040
Speaker 1: are a lot of legal ways I could talk about

449
00:31:49,080 --> 00:31:54,280
Speaker 1: his decision, but here's the simplest version. Judge O'Connor took

450
00:31:54,480 --> 00:31:59,120
Speaker 1: the Indian Child Welfare Act, a forty year old statute

451
00:31:59,800 --> 00:32:03,440
Speaker 1: and chucked it out the window. Now it's up to

452
00:32:03,520 --> 00:32:09,480
Speaker 1: the Supreme Court whether or not that decision will stand today.

453
00:32:10,000 --> 00:32:14,480
Speaker 1: Sandy Whitehawk is a national advocate for Native families. Most

454
00:32:14,520 --> 00:32:17,840
Speaker 1: of her work is helping other adoptees reconnect and heal,

455
00:32:18,480 --> 00:32:21,960
Speaker 1: but she knows that IQUA is under attack, and I

456
00:32:22,000 --> 00:32:26,760
Speaker 1: wanted to hear what she thought about this case. So

457
00:32:27,120 --> 00:32:33,880
Speaker 1: people who oppose IQUA say that the law disadvantages Native

458
00:32:33,960 --> 00:32:39,640
Speaker 1: kids because it treats them differently than other kids, and

459
00:32:39,680 --> 00:32:43,240
Speaker 1: that it's a bad law for Native children. What would

460
00:32:43,280 --> 00:32:45,120
Speaker 1: you say to that bad?

461
00:32:45,200 --> 00:32:45,360
Speaker 11: Hell?

462
00:32:46,560 --> 00:32:50,520
Speaker 2: How does it treat them bad? You got an example?

463
00:32:50,680 --> 00:32:55,360
Speaker 1: Or yeah? So I think like in these particular cases,

464
00:32:55,480 --> 00:32:58,240
Speaker 1: they say that it puts like the interest of the

465
00:32:58,320 --> 00:33:00,840
Speaker 1: tribe over the best entrance of the child.

466
00:33:01,280 --> 00:33:03,640
Speaker 2: No, I don't know what you call it when you

467
00:33:04,960 --> 00:33:08,160
Speaker 2: take something and misconstrue it. That is so not true

468
00:33:08,400 --> 00:33:12,680
Speaker 2: because people do not understand the law, do not understand

469
00:33:12,800 --> 00:33:16,120
Speaker 2: the structure of a tribe. They don't know anything about

470
00:33:16,160 --> 00:33:20,440
Speaker 2: Indian families and our connection to each other.

471
00:33:21,280 --> 00:33:27,040
Speaker 1: So in this most recent lawsuit, the actual legal argument

472
00:33:27,520 --> 00:33:31,800
Speaker 1: is that it's unfair to the white foster and adoptive

473
00:33:31,880 --> 00:33:35,600
Speaker 1: parents because it puts them last in line.

474
00:33:36,280 --> 00:33:42,120
Speaker 2: Give me a fucking break. I'm sorry, that's my immediate

475
00:33:42,160 --> 00:33:46,320
Speaker 2: emotional response. You can edit all this out, Jesus, it

476
00:33:46,360 --> 00:33:51,160
Speaker 2: puts them last. Talk about privilege. We shouldn't be last

477
00:33:51,160 --> 00:33:56,320
Speaker 2: because we're white, just because we're white. Go ahead, I'm sorry.

478
00:33:56,480 --> 00:33:59,440
Speaker 1: Well, I was just gonna say, what would you say

479
00:33:59,440 --> 00:34:00,360
Speaker 1: in response to that?

480
00:34:01,160 --> 00:34:03,800
Speaker 2: I guess my response really would be, that's a true

481
00:34:03,840 --> 00:34:08,919
Speaker 2: expression of white privilege. That they would assume that they

482
00:34:09,000 --> 00:34:13,839
Speaker 2: could have their needs over a child that's not even

483
00:34:13,840 --> 00:34:17,000
Speaker 2: of their culture. That they feel that they have a

484
00:34:17,200 --> 00:34:22,000
Speaker 2: right is just beyond me. You know, I remember being told,

485
00:34:22,040 --> 00:34:25,000
Speaker 2: you know, we took you from the reservation so you

486
00:34:25,000 --> 00:34:28,640
Speaker 2: would have a chance, you know, a chance at what

487
00:34:30,520 --> 00:34:34,279
Speaker 2: we're given. Nothing to deal with the major micro and

488
00:34:34,440 --> 00:34:39,560
Speaker 2: macro aggressions that happen on the daily. Most white families

489
00:34:39,600 --> 00:34:45,920
Speaker 2: to this day minimize racism like crazy, So you're emotionally

490
00:34:46,000 --> 00:34:51,040
Speaker 2: isolated to the point of you know, overload, which is

491
00:34:51,120 --> 00:34:56,520
Speaker 2: why for adoptees there's such a high rate of suicide

492
00:34:57,000 --> 00:34:57,560
Speaker 2: and addiction.

493
00:35:03,600 --> 00:35:08,359
Speaker 1: Native leaders aren't wondering why a couple who already won

494
00:35:08,400 --> 00:35:12,839
Speaker 1: custody brought this lawsuit, or why the states with the

495
00:35:13,000 --> 00:35:17,200
Speaker 1: tiniest of EQUA caseloads are the ones leading the charge.

496
00:35:17,840 --> 00:35:21,840
Speaker 1: What is baffling about the underlying facts of this case

497
00:35:22,120 --> 00:35:27,640
Speaker 1: does not baffle Native leaders because the consensus in Indian

498
00:35:27,719 --> 00:35:33,160
Speaker 1: country is that this case was never about EQUA, just

499
00:35:33,239 --> 00:35:38,000
Speaker 1: like boarding schools were never about helping Native children.

500
00:35:39,320 --> 00:35:42,160
Speaker 9: It's not about kids. It was never about kids for

501
00:35:42,480 --> 00:35:46,239
Speaker 9: the organizations or even the states that are part of

502
00:35:46,280 --> 00:35:46,800
Speaker 9: this case.

503
00:35:47,640 --> 00:35:52,879
Speaker 1: So if this case isn't about the adoptions that are

504
00:35:52,880 --> 00:35:56,040
Speaker 1: supposedly at the center of it, then what is it about.

505
00:35:56,719 --> 00:35:59,960
Speaker 9: Well, it's about the future of Indian law.

506
00:36:01,480 --> 00:36:04,040
Speaker 1: I asked that question to a lot of people.

507
00:36:04,600 --> 00:36:08,040
Speaker 11: It definitely is so much more than just the welfare

508
00:36:08,080 --> 00:36:12,040
Speaker 11: of children. I think there's a strategic, an aggressive and

509
00:36:12,160 --> 00:36:16,520
Speaker 11: intentional and a deliberate and a bold effort to undermine

510
00:36:16,560 --> 00:36:18,040
Speaker 11: every bit of tribal sovereignty.

511
00:36:18,400 --> 00:36:23,600
Speaker 13: Really thinking about IQUA as being the first test case,

512
00:36:23,640 --> 00:36:27,560
Speaker 13: if you will, for really all a federal Indian law

513
00:36:27,680 --> 00:36:32,839
Speaker 13: being undermined by questioning the status of tribal citizens and

514
00:36:33,400 --> 00:36:35,360
Speaker 13: the sovereign authority of tribal governments.

515
00:36:35,760 --> 00:36:39,200
Speaker 14: I think it's a pivotal moment for sovereignty in this country,

516
00:36:39,560 --> 00:36:42,560
Speaker 14: and the question will be whether this country continues to

517
00:36:42,680 --> 00:36:45,840
Speaker 14: understand that tribes are sovereign nations that we ought to

518
00:36:45,840 --> 00:36:49,400
Speaker 14: be able to exercise the right to protect our resources,

519
00:36:49,400 --> 00:36:51,960
Speaker 14: whether their natural resources are in this case something more

520
00:36:51,960 --> 00:36:53,720
Speaker 14: precious our children in our future.

521
00:36:55,120 --> 00:36:58,880
Speaker 1: That was the president of the National Congress of American Indians,

522
00:36:59,160 --> 00:37:03,719
Speaker 1: the executive director of the National Indian Child Welfare Association,

523
00:37:04,080 --> 00:37:08,919
Speaker 1: and the principal chief of Cherokee Nation. Native leaders who

524
00:37:08,960 --> 00:37:12,680
Speaker 1: are watching this case are not just worried about future

525
00:37:12,760 --> 00:37:18,879
Speaker 1: generations of Native children, They're worried about the future existence

526
00:37:19,400 --> 00:37:27,680
Speaker 1: of tribes, even with states attached. McGill needed other plaintiffs,

527
00:37:28,000 --> 00:37:33,680
Speaker 1: plaintiffs to make his case stronger. Foster parents who, unlike

528
00:37:33,719 --> 00:37:37,760
Speaker 1: the Brakines, didn't have an easy time getting around Igua,

529
00:37:38,480 --> 00:37:44,040
Speaker 1: and he found a case in Minnesota. Next time on

530
00:37:44,080 --> 00:37:44,920
Speaker 1: this Land.

531
00:37:45,640 --> 00:37:50,320
Speaker 16: When they terminate parnal rights, it says, if the whole

532
00:37:50,400 --> 00:37:55,399
Speaker 16: biological family is deceased, you don't even have a right

533
00:37:55,480 --> 00:37:57,600
Speaker 16: to see your brothers and sisters anymore.

534
00:37:58,120 --> 00:37:59,520
Speaker 1: They had no grandparents rights.

535
00:38:00,200 --> 00:38:06,920
Speaker 16: I was calling every attorney in town and I got rejected,

536
00:38:07,360 --> 00:38:07,879
Speaker 16: turned down.

537
00:38:08,680 --> 00:38:27,880
Speaker 1: I couldn't get no help anywhere. He y'all, Hey, Hey, y'all.

538
00:38:28,360 --> 00:38:32,640
Speaker 11: Hey.

539
00:38:33,200 --> 00:38:36,840
Speaker 1: This Land is reported, written and hosted by me Rebecca

540
00:38:36,920 --> 00:38:44,040
Speaker 1: Nagle Goheen, citizen of Cherokee Nation. Additional reporting this season

541
00:38:44,280 --> 00:38:48,360
Speaker 1: from Maddie Stone, Martha Troyan, citizen of o b Chika

542
00:38:48,440 --> 00:38:52,800
Speaker 1: kong Lack Suel First Nation, and Amy Westervelt from Cricket Media.

543
00:38:53,000 --> 00:38:58,200
Speaker 1: Our executive producers are John Favreau, Sarah geismer Lyra Smith,

544
00:38:58,400 --> 00:39:03,839
Speaker 1: and Katie Long, thanks to Alison Falsetta from Critical Frequency.

545
00:39:04,000 --> 00:39:08,319
Speaker 1: Our managing producer is Amy Westervelt, Our senior producer is

546
00:39:08,360 --> 00:39:12,600
Speaker 1: Sarah Ventry, and our story editor is Raka Murphy. Additional

547
00:39:12,719 --> 00:39:16,640
Speaker 1: editing for Martha Troyan and Polly Dennette Claw who is Deney.

548
00:39:17,239 --> 00:39:21,560
Speaker 1: Sound design by Lyra Smith, Mark Bush and Charlotte Landis.

549
00:39:22,080 --> 00:39:26,319
Speaker 1: Original score composed by Jared Tate, citizen of Chickasaw Nation.

550
00:39:26,880 --> 00:39:30,520
Speaker 1: Our outro song is an honor song for adoptees, written

551
00:39:30,600 --> 00:39:34,759
Speaker 1: and sung by Jerry Dearly, who is Oglala Lakota. Our

552
00:39:34,800 --> 00:39:38,160
Speaker 1: fact checker is wou dan Yan. Our First Amendment Attorney

553
00:39:38,280 --> 00:39:42,280
Speaker 1: is James Wheaton, founder of The First Amendment Project. Podcast

554
00:39:42,440 --> 00:39:47,520
Speaker 1: art by Kelly Gonzalez, citizen of Cherokee Nation. Jennifer Brakeen's

555
00:39:47,560 --> 00:39:51,719
Speaker 1: blog was read by voice actor Alissa Sia. If you're

556
00:39:51,800 --> 00:39:55,560
Speaker 1: enjoying the show, please rate, review, and subscribe. It helps

557
00:39:55,600 --> 00:39:59,000
Speaker 1: more people find us, and please share it with your friends.

558
00:39:59,600 --> 00:40:01,520
Speaker 1: If you have but a tip or information to share

559
00:40:01,640 --> 00:40:04,759
Speaker 1: related to our reporting, you can do that securely and

560
00:40:04,840 --> 00:40:08,600
Speaker 1: anonymously through our secure drop You can find a link

561
00:40:08,680 --> 00:40:11,799
Speaker 1: in the show notes. To see a detailed timeline of

562
00:40:11,880 --> 00:40:17,239
Speaker 1: Antonio's case, visit this landpodcast dot com. We'll link to

563
00:40:17,320 --> 00:40:20,160
Speaker 1: it in the show notes as well. This season of

564
00:40:20,160 --> 00:40:24,160
Speaker 1: This Land touches on different forms of family, childhood, and

565
00:40:24,320 --> 00:40:28,000
Speaker 1: racial trauma. If you feel like you could use support,

566
00:40:28,040 --> 00:40:32,680
Speaker 1: please check our show notes or website this landpodcast dot

567
00:40:32,760 --> 00:40:37,840
Speaker 1: com to find resources for adoptees and survivors of childhood trauma,

568
00:40:37,960 --> 00:40:40,640
Speaker 1: abuse foster care and boarding schools,