WEBVTT - 2. Behind The Curtain 0:00:01.080 --> 0:00:04.160 Just a note before we get started. The stories we're 0:00:04.200 --> 0:00:08.440 sharing this season touch on different kinds of trauma. Please 0:00:08.600 --> 0:00:13.720 take care of yourself while you listen. In this sprawling 0:00:13.800 --> 0:00:18.040 lawsuit that pitts foster families against Native families and tribes 0:00:18.120 --> 0:00:22.680 against states, there is actually one point that everyone agrees 0:00:22.760 --> 0:00:27.760 on that the history of Native families being separated is tragic. 0:00:28.800 --> 0:00:32.000 It's a history that people who are still alive today 0:00:32.320 --> 0:00:35.360 survived people like Sandy Whitehawk. 0:00:36.440 --> 0:00:41.839 How me takya pi chante nape chiusip Lakota mia Chakata 0:00:41.880 --> 0:00:47.920 na jiwa Suchango la Cota matah greeting's relatives. My name 0:00:47.960 --> 0:00:52.440 is Sandy Whitehawk. My Lakota name is stands in the center. 0:00:52.520 --> 0:00:56.600 Woman and I come from the Roast Bud Reservation in 0:00:56.720 --> 0:00:57.440 South Dakota. 0:00:58.840 --> 0:01:02.360 Growing up on the roset Reservation in the nineteen fifties, 0:01:02.680 --> 0:01:06.320 kids knew to hide when strange cars came up the driveway. 0:01:07.200 --> 0:01:10.720 I've heard people say, yeah, we had a drill in 0:01:10.760 --> 0:01:13.400 our house that if a car drove up the driveway, 0:01:14.080 --> 0:01:16.920 we knew that it would be somebody from the government 0:01:17.080 --> 0:01:18.400 or social worker or something. 0:01:19.760 --> 0:01:22.280 But one day Sandy wasn't fast enough. 0:01:23.080 --> 0:01:26.240 I remember one of my uncles saying that he remembers 0:01:26.280 --> 0:01:28.600 the day that the social worker came and got me. 0:01:29.360 --> 0:01:31.760 Drove into the driveway and I was toddling around, and 0:01:31.800 --> 0:01:35.520 they were all sitting around the house. As far as 0:01:35.560 --> 0:01:40.280 I know, that's how it was told to me. And 0:01:40.360 --> 0:01:42.720 she just simply got out of the car, scooped me up, 0:01:42.760 --> 0:01:43.960 and put me in the car. 0:01:45.080 --> 0:01:48.080 Her relatives watched the whole thing. 0:01:48.800 --> 0:01:52.160 Could you imagine what that would have been like. Could 0:01:52.160 --> 0:01:56.320 you imagine that you knew not to move and not 0:01:56.360 --> 0:01:59.640 to do anything, and not to grab me and fight 0:01:59.720 --> 0:02:03.880 for me, because they would have been put in jail 0:02:05.080 --> 0:02:06.600 and I would have still been taken. 0:02:12.360 --> 0:02:16.320 The first thing Sandy remembers about her white adoptive family 0:02:16.840 --> 0:02:17.360 was their. 0:02:17.200 --> 0:02:20.080 Truck, and I remember that it was a red truck, 0:02:21.400 --> 0:02:24.520 and I remember being lifted. I have this sensation of 0:02:24.560 --> 0:02:29.840 being lifted and put between these two people, and everything 0:02:30.040 --> 0:02:35.480 was so different. I just remember smell and what my 0:02:36.280 --> 0:02:42.680 white adoptive mom's arm looked like, my dad's adoptive dad's 0:02:43.120 --> 0:02:46.800 overhauls looked like the dashboard. I have this, like it's 0:02:47.240 --> 0:02:54.080 incredibly clear picture. But right after that, I am in 0:02:54.120 --> 0:02:57.720 the back of the truck looking in the front of 0:02:57.800 --> 0:03:02.480 the truck watching this little brown girl. So at eighteen 0:03:02.520 --> 0:03:06.760 months old, I disassociated to protect myself because I was 0:03:07.280 --> 0:03:11.480 I was terrified, you know, because these weren't anybody I knew. 0:03:13.000 --> 0:03:16.680 That red truck took Sandy away from her family and 0:03:16.720 --> 0:03:22.200 her tribe to a small, rural white community. Being adopted 0:03:22.240 --> 0:03:24.960 by a white family was supposed to give Sandy the 0:03:25.080 --> 0:03:29.800 chance at a better life, but it didn't. Sandy's adoptive 0:03:29.840 --> 0:03:31.080 mom was abusive. 0:03:32.360 --> 0:03:37.160 When I look back, she was suffering greatly. However, the 0:03:37.240 --> 0:03:41.360 abuse that I went through then because of hers was 0:03:41.520 --> 0:03:47.920 you know, pretty, It was really hard. The sexual violation occurred, 0:03:48.080 --> 0:03:52.880 the beatings occurred, the berating, the spiritual abuse, telling me 0:03:52.920 --> 0:03:55.480 from the time I could remember that I was going 0:03:55.560 --> 0:03:58.480 to go to hell, and mostly because I was Indian. 0:03:59.600 --> 0:04:02.640 Sandy has this vivid memory from when she was about 0:04:02.720 --> 0:04:06.320 eleven or twelve. Her mom would have these rages. 0:04:07.160 --> 0:04:10.320 I just remember I scurried up the stairs to get 0:04:10.360 --> 0:04:14.280 away from her, and she was screaming and screaming, and 0:04:14.320 --> 0:04:16.880 then there's this little landing. I could look down at 0:04:16.880 --> 0:04:21.400 her and I seen her crying really hard and still 0:04:21.440 --> 0:04:23.880 saying mean things, and she goes, I should have just 0:04:24.000 --> 0:04:27.680 left you on the reservation. You're so ungrateful. Nothing I 0:04:27.839 --> 0:04:31.040 do is good enough for you. You're just completely ungrateful. 0:04:31.720 --> 0:04:37.000 And I remember thinking, what's our reservation? I should have 0:04:37.080 --> 0:04:39.120 left you on the reservation. What does that mean. 0:04:43.240 --> 0:04:45.919 Around the same time that Sandy was growing up in 0:04:45.960 --> 0:04:49.599 a white home, a national advocacy group got word of 0:04:49.640 --> 0:04:56.240 a problem. Tribal leaders reported their children were missing. The group, 0:04:56.480 --> 0:05:02.040 the Association on American Indian Affairs, conducted a huge national survey. 0:05:02.880 --> 0:05:07.880 What they found was shocking. Twenty five to thirty five 0:05:08.040 --> 0:05:13.680 percent of all Native children were on removed from their 0:05:13.680 --> 0:05:18.320 families and their tribes. Here's Bert Hirsch who led the. 0:05:18.279 --> 0:05:23.560 Survey, and the idea was literally to separate these people, 0:05:24.080 --> 0:05:28.040 the parents and their children from their tribal communities permanently, 0:05:28.120 --> 0:05:32.720 and ultimately the hope was the tribes themselves would disappear. 0:05:33.920 --> 0:05:37.680 Last episode, I told you about boarding schools. They were 0:05:37.720 --> 0:05:41.880 followed by another federal program called the Indian Adoption Project. 0:05:42.839 --> 0:05:46.839 The government paid the Child Welfare League of America to 0:05:46.960 --> 0:05:50.080 take Native children and put them up for adoption by 0:05:50.120 --> 0:05:54.400 white families. Bert and his team found white families who 0:05:54.400 --> 0:05:59.120 were using those kids for farm labor. The Indian Adoption 0:05:59.240 --> 0:06:02.640 Project fit into this era of federal policy when the 0:06:02.680 --> 0:06:06.920 government was literally trying to get rid of tribes, and 0:06:07.000 --> 0:06:11.719 a tribe without children doesn't have a future. This type 0:06:11.800 --> 0:06:16.159 of systemic racism is easy to spot because it comes 0:06:16.200 --> 0:06:20.080 with intent. But there was another reason so many Native 0:06:20.160 --> 0:06:24.640 kids were missing bias in the system. 0:06:25.160 --> 0:06:29.279 Rarely were their allegations of child abuse, but neglect was rampant, 0:06:29.440 --> 0:06:35.040 and it was premised largely on white supremacist thoughts that 0:06:35.480 --> 0:06:40.320 Indian parents virtually by definition, were unfit to raise children, 0:06:41.680 --> 0:06:47.240 that Indian reservations, virtually by definition, were unfit environments for children. 0:06:46.920 --> 0:06:47.640 To be raised in. 0:06:48.920 --> 0:06:53.120 It took another ten years of legal work organizing an advocacy, 0:06:53.400 --> 0:06:57.440 but in nineteen seventy eight, Congress finally voted on legislation 0:06:57.720 --> 0:07:02.840 to address the problem. Bert was there in the Senate chambers. 0:07:02.960 --> 0:07:06.039 And it was way late at night, if I remember correctly, 0:07:06.080 --> 0:07:08.440 I was in the Senate gallery. It was like midnight 0:07:08.560 --> 0:07:11.680 or after midnight already at that point, because they were 0:07:11.680 --> 0:07:14.520 trying to get all this other legislation passed first. 0:07:14.800 --> 0:07:17.160 He was worried it wouldn't get through. 0:07:18.040 --> 0:07:20.560 But sure enough, at the very end Bird called it 0:07:20.640 --> 0:07:23.600 up and it passed on unanimous consent. 0:07:24.040 --> 0:07:28.560 And on November eighth, nineteen seventy eight, President Jimmy Carter 0:07:28.840 --> 0:07:35.400 signed the Indian Child Welfare Act into law. IKWA was 0:07:35.440 --> 0:07:39.480 created the way we normally think about changing federal laws 0:07:39.800 --> 0:07:45.600 through legislation. It took ten years of research, congressional testimony, organizing, 0:07:45.800 --> 0:07:49.760 and finally a vote. And that vote in a democracy 0:07:50.280 --> 0:07:53.840 is supposed to reflect the will of the people. But 0:07:54.000 --> 0:07:58.960 there is this other way to change federal laws, one 0:07:59.160 --> 0:08:04.400 that doesn't congress. If you have money and resources, you 0:08:04.440 --> 0:08:08.840 can take your issue to federal court, and that's what 0:08:08.960 --> 0:08:12.080 the people trying to get rid of IQUA are doing. 0:08:21.560 --> 0:08:25.040 You're listening to This Land, a podcast about the present 0:08:25.080 --> 0:08:29.200 day struggle for Native rights from Cricket Media. I'm your host, 0:08:29.400 --> 0:08:34.720 Rebecca Nagel Goheen Daaladon d lac Ayete Gela, citizen of 0:08:34.880 --> 0:08:39.360 Cherokee Nation. This season, we're following how a string of 0:08:39.440 --> 0:08:43.640 custody battles over Native children turned into a federal lawsuit, 0:08:43.840 --> 0:08:56.800 threatening everything from tribal sovereignty to civil rights. The Brakins 0:08:56.840 --> 0:09:00.840 and their lawyers say that stories like Sandy Whitehawk are tragic, 0:09:01.400 --> 0:09:05.280 but that tragedy is in the past, and Native children 0:09:05.520 --> 0:09:09.840 don't need EQUA anymore. They say that while the law 0:09:10.120 --> 0:09:15.240 was well intended, today it actually harms Native kids, and 0:09:15.280 --> 0:09:19.439 their evidence for that harm doesn't come from data, or 0:09:19.520 --> 0:09:25.000 tribes or even child welfare experts. It's a story, the 0:09:25.040 --> 0:09:28.360 story of what happened when a white couple wanted to 0:09:28.440 --> 0:09:32.560 adopt a Native toddler. But we dug into their story 0:09:33.120 --> 0:09:44.040 and it didn't add up. Matthew McGill looks at IQUA 0:09:44.120 --> 0:09:46.959 through the lens of his clients, the Brakenes. 0:09:48.080 --> 0:09:54.079 I suppose one could dismiss their situation as merely an anecdote, 0:09:54.679 --> 0:09:58.600 but that is how every case in the Supreme Court 0:09:58.840 --> 0:10:02.640 is an anecdote of its own. I don't think that 0:10:02.760 --> 0:10:09.200 Brakeenes ought to be dismissed because they are outnumbered by other, 0:10:09.400 --> 0:10:12.760 more routine applications of IQUA. 0:10:13.840 --> 0:10:16.600 McGill is a partner at that big corporate law firm 0:10:16.640 --> 0:10:20.840 we told you about last episode. Gibson Done. He declined 0:10:20.880 --> 0:10:23.520 to speak with us. This is him speaking on a 0:10:23.559 --> 0:10:27.839 panel hosted by the right wing organization the Cato Institute. 0:10:28.360 --> 0:10:31.959 They had been the foster parents to a child for 0:10:32.080 --> 0:10:36.280 about two years, and they had petitioned to adopt that 0:10:36.480 --> 0:10:40.800 child then, although it was unrebutted that it would do 0:10:41.000 --> 0:10:45.520 great damage to this somewhat troubled two year old to 0:10:45.800 --> 0:10:49.440 remove him from the only parents really he had ever 0:10:49.520 --> 0:10:54.960 known that. Nevertheless, the family court in Texas held that 0:10:55.280 --> 0:10:58.800 the adoption petition must be denied and that the child, 0:10:58.880 --> 0:11:04.040 in due course, would be transferred to these strangers in 0:11:04.080 --> 0:11:04.680 New Mexico. 0:11:05.600 --> 0:11:08.920 And according to Matthew McGill, that decision to pick a 0:11:09.000 --> 0:11:15.800 Native family a Navajo family over his clients constituted racial discrimination, 0:11:16.520 --> 0:11:22.920 discrimination against white people, which he says is unconstitutional because 0:11:23.040 --> 0:11:26.839 laws aren't supposed to treat people differently based on race. 0:11:27.640 --> 0:11:31.680 It obviously discriminates on the basis of race. When you 0:11:32.000 --> 0:11:36.680 deny non Indian families such as the Brakeenes, the same 0:11:36.720 --> 0:11:40.839 opportunity to adopt children as you would give to any 0:11:40.880 --> 0:11:44.599 family of any of five hundred plus Indian tribes. 0:11:44.920 --> 0:11:49.960 McGill says the law also discriminates against Native children. 0:11:50.960 --> 0:11:54.000 I would say that it is a legitimate goal to 0:11:54.120 --> 0:11:59.319 prevent the unjustified breakup of Indian families, But what does 0:11:59.320 --> 0:12:01.920 that have to do who with the child the Brakeen 0:12:02.320 --> 0:12:06.000 is trying to adopt. I mean, this was not a 0:12:06.080 --> 0:12:09.800 child who was shunted off to some boarding school for 0:12:09.920 --> 0:12:11.080 no reason at all. 0:12:12.000 --> 0:12:14.920 The Brakkeens and their lawyers say what happened in their 0:12:15.000 --> 0:12:19.000 case was so wrong, all of Iqua should go away. 0:12:19.720 --> 0:12:22.480 Since so much as writing on the story of one 0:12:22.679 --> 0:12:26.000 case as a reporter, I needed to know if that 0:12:26.160 --> 0:12:30.880 story was true, and that's tricky because the details of 0:12:30.920 --> 0:12:35.679 Antonio's custody case are confidential. We dug through any documents 0:12:35.679 --> 0:12:38.520 we could find, talk to dozens of people, and after 0:12:38.760 --> 0:12:43.080 months of prying and poking around, finally I got a 0:12:43.120 --> 0:12:46.480 call from our managing producer, Amy Westervelt. 0:12:49.640 --> 0:12:54.840 Hey, Amy's Hey, Rebecca, I have some good news. 0:12:56.040 --> 0:12:59.360 We cracked it open, and what we got was a 0:12:59.440 --> 0:13:04.360 detailed timeline of Antonio's custody case. Knowing who filed what 0:13:04.640 --> 0:13:08.760 and when changed everything I thought I knew about that story. 0:13:09.840 --> 0:13:13.440 It turns out Antonio did have a Native family who 0:13:13.520 --> 0:13:16.000 loved and cared for him the first year of his 0:13:16.120 --> 0:13:20.520 life his grandparents, but because of his mom and dad's 0:13:20.600 --> 0:13:25.000 substance abuse, CPS got involved and they decided he needed 0:13:25.040 --> 0:13:30.360 to go into foster care. After Antonio's parents' rites were terminated, 0:13:30.640 --> 0:13:34.840 Navajo Nation found a Navajo family Within a couple months 0:13:35.200 --> 0:13:39.360 after that, things moved pretty fast. The Brakins hired a 0:13:39.400 --> 0:13:42.400 local family lawyer and filed a bunch of paperwork to 0:13:42.480 --> 0:13:46.040 try and keep Antonio in their home. In one motion, 0:13:46.240 --> 0:13:49.360 they tried to kick Navajo Nation out of the case. 0:13:50.120 --> 0:13:53.480 In it, they spelled the word Navajo with an H, 0:13:53.640 --> 0:13:57.240 not a J every time it was written. But that 0:13:57.440 --> 0:14:01.920 motion and others all got thrown out. That's the family 0:14:01.960 --> 0:14:06.120 court decision McGill was talking about. And that's when, according 0:14:06.160 --> 0:14:10.360 to Jennifer's blog, they started looking for help with an appeal, 0:14:11.400 --> 0:14:14.840 like how long does it take for them to get 0:14:14.840 --> 0:14:16.280 connected to Gibson and done? 0:14:16.520 --> 0:14:19.520 Okay, that's where this just like blew my mind because 0:14:19.560 --> 0:14:23.800 it's August twenty second. They get denied by August twenty eighth. 0:14:24.600 --> 0:14:28.000 What Wrickets of Gibson done is filing motions? 0:14:29.080 --> 0:14:31.680 What that's like? That's the day day. 0:14:32.440 --> 0:14:34.520 That's bonkers. 0:14:34.880 --> 0:14:40.720 That is so bonkers, not even a week. Most law 0:14:40.760 --> 0:14:44.280 firms couldn't write that kind of appeal in six days. 0:14:44.680 --> 0:14:48.480 It left me wondering were the Brakeens looking for legal 0:14:48.560 --> 0:14:53.120 help or was Gibson done looking for plaintiffs? And how 0:14:53.160 --> 0:15:00.720 did they find each other? That quickly, and Gibson Dunn 0:15:01.000 --> 0:15:04.200 wasn't the only power player ready to jump in. 0:15:05.000 --> 0:15:10.680 Someone else shows up. Who the freaking Texas Attorney General. 0:15:11.240 --> 0:15:15.480 Why yes, that was just like really shocked me because 0:15:15.560 --> 0:15:18.960 I in family court the office of the Texas Attorney 0:15:19.000 --> 0:15:22.200 General and like some just like like some kid in 0:15:22.240 --> 0:15:23.400 foster care, they're. 0:15:23.160 --> 0:15:25.520 Intervening in that case to say that iqua should be 0:15:25.560 --> 0:15:30.640 declared unconstitutional. Mm hmm, that's right. What the hell, that's 0:15:30.840 --> 0:15:36.000 a bizarre The office of the Attorney General, one of 0:15:36.080 --> 0:15:40.880 the most powerful politicians in the entire state, was there 0:15:41.080 --> 0:15:45.840 in family court. Imagine if you were filing for divorce 0:15:46.120 --> 0:15:49.240 or in the middle of an ugly custody dispute and 0:15:49.640 --> 0:15:54.840 your state ag showed up. I ran this by a 0:15:54.840 --> 0:15:57.400 few lawyers. They were all shocked. 0:15:58.640 --> 0:16:02.560 State AG's office would not participate in a case like 0:16:02.600 --> 0:16:07.000 that at all unless it reached perhaps an appellate or 0:16:07.160 --> 0:16:09.200 even a supreme court level within the state. 0:16:10.040 --> 0:16:13.680 That's Matthew Fletcher. He's a citizen of Grand Travers Band 0:16:13.760 --> 0:16:16.880 of Ottawa and Chippewa Indians and a law professor at 0:16:16.920 --> 0:16:18.560 Michigan State University. 0:16:19.080 --> 0:16:24.440 So it's extraordinary for high level persons in the attorneys 0:16:24.440 --> 0:16:27.680 in the State AG's office to step down into the 0:16:27.720 --> 0:16:29.280 trial level and participate. 0:16:29.720 --> 0:16:33.840 The Texas AG's office didn't find out about Antonio's case 0:16:34.000 --> 0:16:38.960 through their child welfare department. They found out through Gibson Dunn. 0:16:39.720 --> 0:16:43.600 Once we confirmed this, we weren't surprised because many of 0:16:43.640 --> 0:16:47.600 the lawyers who work at Gibson Dun's Texas offices used 0:16:47.600 --> 0:16:51.000 to work for the Attorney General and vice versa. It's 0:16:51.040 --> 0:16:55.080 like a revolving door. The Texas ag came to Family 0:16:55.200 --> 0:17:00.800 Court with an agenda not about Antonio, but about he 0:17:00.960 --> 0:17:06.520 asked that Terrant County judge to declare iqua unconstitutional. It 0:17:06.640 --> 0:17:10.719 turned a custody dispute, a court case that determined the 0:17:10.840 --> 0:17:15.040 life of a two year old, into a political battleground. 0:17:18.720 --> 0:17:22.639 We already knew from Jennifer's blog and federal court documents 0:17:22.760 --> 0:17:26.640 that the Brakins were able to adopt Antonio after both 0:17:26.840 --> 0:17:31.439 Navajo Nation and Cherokee Nation agreed to the adoption, but 0:17:31.560 --> 0:17:36.280 we didn't know when the tribes agreed, and that detail 0:17:36.640 --> 0:17:40.400 stopped me in my tracks because it was the same 0:17:40.720 --> 0:17:46.560 week the Brakens filed the federal lawsuit. I shared this 0:17:46.680 --> 0:17:51.359 with law professor Matthew Fletcher. So they filed the federal 0:17:51.440 --> 0:17:55.760 lawsuit two days before there's court record that all of 0:17:55.800 --> 0:17:59.040 the barriers to the adoption have been lifted. 0:18:00.800 --> 0:18:02.000 Wow, that's insane. 0:18:02.359 --> 0:18:05.439 They were going to win. I mean, that's baffling and 0:18:05.520 --> 0:18:07.800 also disturbing that they were willing to go to those 0:18:07.880 --> 0:18:11.720 lengths these It's apparent to me these children are irrelevant 0:18:11.880 --> 0:18:16.719 that they are part of the tool designed to destroy 0:18:16.760 --> 0:18:19.679 the NHL Welfare Act. For reasons that I frankly do 0:18:19.760 --> 0:18:20.480 not understand. 0:18:21.400 --> 0:18:25.320 The Brakeenes didn't file a federal lawsuit when they were 0:18:25.440 --> 0:18:30.480 losing custody. They filed the lawsuit when they were winning. 0:18:31.240 --> 0:18:35.280 Here is how Jennifer's blog, read by a voice actor, 0:18:35.960 --> 0:18:40.080 describes the time they spent waiting to adopt Antonio. 0:18:41.040 --> 0:18:44.520 We did our Christmas card photoshoot at Thanksgiving. We had 0:18:44.520 --> 0:18:47.679 been told by CPS we would definitely have the adoption 0:18:47.760 --> 0:18:51.920 by Christmas, so I planned the card accordingly, and as 0:18:52.040 --> 0:18:54.840 the days and weeks passed, when I would have definitely 0:18:54.920 --> 0:18:57.720 had my card in the mail by now, we still 0:18:57.720 --> 0:19:00.880 didn't even have a date. So we mailed the card 0:19:01.080 --> 0:19:05.080 on the way home from the adoption on January eighth, 0:19:05.119 --> 0:19:08.600 and Chad cleverly closed the envelopes with some red tape 0:19:08.680 --> 0:19:11.600 and wrote, sorry, this year our card got caught up 0:19:11.640 --> 0:19:13.040 in some red tape. 0:19:13.359 --> 0:19:17.520 So those months they spent waiting to adopt Antonio had 0:19:17.600 --> 0:19:21.400 nothing to do with Iqua. It was just Texas being 0:19:21.520 --> 0:19:26.159 slow to finalize the paperwork. But here's how that same 0:19:26.400 --> 0:19:31.040 time period was described in court documents McGill filed right 0:19:31.119 --> 0:19:36.120 before Christmas. Quote for months, their adoption of Alm has 0:19:36.200 --> 0:19:40.800 been delayed, caught in a terrifying whirlwind of court proceedings 0:19:40.880 --> 0:19:45.760 that occurred only because the federal government classifies Alm as 0:19:45.800 --> 0:19:50.520 an Indian child. McGill alleged his clients were caught in 0:19:50.560 --> 0:19:55.840 a terrifying whirlwind created only by Iqua after the tribes 0:19:55.880 --> 0:20:01.680 agreed to the adoption, after they all knew the Brakeens 0:20:01.840 --> 0:20:08.080 would adopt Antonio. Normally, when building a big federal lawsuit, 0:20:08.280 --> 0:20:11.280 you want to pick the plaintiffs with the strongest case, 0:20:12.040 --> 0:20:16.159 which makes the Brakens an odd choice. It's almost like 0:20:16.200 --> 0:20:20.879 a white student suing a university over affirmative action because 0:20:20.880 --> 0:20:23.679 they were worried they wouldn't get accepted, but in the 0:20:23.800 --> 0:20:28.720 end they did. It just doesn't make sense. But there's 0:20:28.840 --> 0:20:33.440 this other way, the Brakeens are the perfect plaintiffs. It's 0:20:33.520 --> 0:20:38.000 less about how lawsuits work and more about how politics work, 0:20:38.560 --> 0:20:48.840 specifically politics in the state of Texas. The federal lawsuit 0:20:49.000 --> 0:20:52.199 Rakkeen v. Holland is now waiting on the steps of 0:20:52.280 --> 0:20:55.879 the Supreme Court. It got this far because the foster 0:20:56.040 --> 0:21:01.840 parents have powerful company states more than one. Here's law 0:21:01.880 --> 0:21:03.560 Professor Matthew Fletcher again. 0:21:04.160 --> 0:21:06.679 When the state says, hey, there's this federal law that 0:21:06.880 --> 0:21:10.920 we think is wholly unconstitutional. Even if what the state 0:21:11.000 --> 0:21:14.240 is saying is patently frivolous, it's still going to get 0:21:14.240 --> 0:21:16.200 a hearing, in a serious one. 0:21:16.560 --> 0:21:20.760 When the Brakeens filed their federal lawsuit, Texas was right 0:21:20.800 --> 0:21:24.960 there with them. We wanted to know why, and we 0:21:25.000 --> 0:21:30.479 had a way to find out. Public offices like an 0:21:30.520 --> 0:21:34.440 attorney general have to respond to Freedom of Information Act 0:21:34.480 --> 0:21:38.720 requests or foyas, so we filed FOYA requests to the 0:21:38.760 --> 0:21:43.280 office of the Texas Attorney General. They stonewalled us, but 0:21:43.920 --> 0:21:48.280 in building their case, they gave us a workaround because 0:21:48.320 --> 0:21:53.200 they brought on other states. So we foyed those states 0:21:53.320 --> 0:21:58.159 and uncovered a web of communication. The same day Texas 0:21:58.200 --> 0:22:01.360 filed the federal lawsuit, we sent out an email blast 0:22:01.480 --> 0:22:05.119 inviting other states to join. The email was sent to 0:22:05.200 --> 0:22:10.320 mostly Republican attorneys general with the subject line new federalism 0:22:10.440 --> 0:22:15.639 case opportunity. Of all the states Texas emailed, only three 0:22:15.720 --> 0:22:22.560 got back Indiana, Louisiana, and Ohio. And here's what's strange 0:22:22.920 --> 0:22:24.359 about those states. 0:22:24.840 --> 0:22:28.399 It's the states that have few Indian people, few Indian 0:22:28.440 --> 0:22:31.439 tribes are the ones who are using this as a 0:22:31.520 --> 0:22:33.159 vehicle to ascertain states rights. 0:22:34.080 --> 0:22:38.280 In the lawsuit, twenty six states came out against Texas 0:22:38.480 --> 0:22:43.320 and in support of IQUA. Those states represent ninety four 0:22:43.480 --> 0:22:47.320 percent of all tribes in the US. The four states 0:22:47.320 --> 0:22:50.640 who say IQUA is a bad BA have less than 0:22:50.920 --> 0:22:55.960 one percent of all tribes in the United States. Those 0:22:56.040 --> 0:23:01.080 states also have very few EQUA cases. When we sent 0:23:01.160 --> 0:23:05.120 Louisiana a public information request, they told us they had 0:23:05.240 --> 0:23:10.639 thirty two open cases involving Native children. Their annual caseload 0:23:10.960 --> 0:23:16.160 is over ten thousand. In that email to other state ags, 0:23:16.520 --> 0:23:21.680 Texas laid out why IQUA is a states rights issue. 0:23:22.400 --> 0:23:24.879 It's all about the Tenth Amendment. 0:23:25.720 --> 0:23:29.560 The Tenth Amendment says that states have all the powers 0:23:30.040 --> 0:23:34.240 left to govern that are not explicitly delegated to the 0:23:34.359 --> 0:23:36.439 United States, and that's a. 0:23:36.440 --> 0:23:37.040 Lot of power. 0:23:37.800 --> 0:23:42.800 Most family law is governed by states, marriage, divorce, custody 0:23:42.800 --> 0:23:45.480 over kids, how much child support you have to pay, 0:23:45.760 --> 0:23:50.040 and so on and so. Texas says IQUA, by budding 0:23:50.080 --> 0:23:54.840 into child welfare proceedings, is an example of federal overreach. 0:23:55.520 --> 0:23:59.200 Texas also says that IQUA is a burden on its 0:23:59.359 --> 0:24:01.119 child wealth welfare agency. 0:24:02.160 --> 0:24:07.560 So, for example, IQUA requires states state agencies to send 0:24:07.560 --> 0:24:11.080 notice to India tribes, and Texas says, we don't want 0:24:11.119 --> 0:24:14.639 to notify tribes. You can't make us. It's kind of 0:24:15.080 --> 0:24:18.280 akin to a neer neanor neanor argument. We don't want 0:24:18.320 --> 0:24:19.880 to do it. You can't make us kind of thing. 0:24:20.800 --> 0:24:23.520 To make sure we weren't missing anything, we reached out 0:24:23.560 --> 0:24:27.680 to tribes, social workers, and child welfare agencies in those 0:24:27.760 --> 0:24:32.119 four states, and what we found made the lawsuit even 0:24:32.320 --> 0:24:38.359 more perplexing because the state's own child welfare agencies don't 0:24:38.400 --> 0:24:44.480 support it. Before joining the lawsuit, the Attorney General of 0:24:44.560 --> 0:24:49.119 Louisiana reached out to his state's child welfare agency. The 0:24:49.160 --> 0:24:52.520 agency told him IQUA is a great law, not a burden, 0:24:53.040 --> 0:24:56.880 which is why the Secretary of Children and Family Services 0:24:57.160 --> 0:25:00.920 was shocked to see him join the lawsuit. Two days later, 0:25:01.640 --> 0:25:04.080 we heard similar surprise in Texas. 0:25:04.720 --> 0:25:07.679 The Texas Department of Family and Protective Services has a 0:25:07.680 --> 0:25:11.439 great working relationship with all three federally recognized tribes here 0:25:11.480 --> 0:25:12.199 in Texas. 0:25:12.720 --> 0:25:15.600 This is Leah Lopez. She is a social worker who 0:25:15.640 --> 0:25:18.560 handles most of the EQUA cases for the Isleta del 0:25:18.680 --> 0:25:21.640 ser Pueblo, a tribe in al Paso, Texas. 0:25:22.000 --> 0:25:24.719 If there's an investigation and they have reason to believe 0:25:25.119 --> 0:25:27.159 that they're one of our families, they will give us 0:25:27.160 --> 0:25:30.320 a call. Our on call worker goes out with the 0:25:30.359 --> 0:25:34.320 investigator and they work the case together. It was surprising 0:25:34.400 --> 0:25:38.000 that this lawsuit came to be so. 0:25:38.080 --> 0:25:41.920 If these Attorneys general aren't following the advice of their 0:25:41.960 --> 0:25:47.239 own child welfare agencies, who are they listening to? And 0:25:47.359 --> 0:25:50.720 that was the biggest discovery in the pile of documents 0:25:50.760 --> 0:25:55.280 we uncovered. In all those thousands of pages of emails, 0:25:55.440 --> 0:25:59.439 we saw exactly who the ags are listening to, who 0:25:59.480 --> 0:26:03.160 they're stregizing with, who they go to for legal advice, 0:26:03.600 --> 0:26:08.880 who they send drafts of documents to for approval. It's 0:26:09.000 --> 0:26:14.240 not child welfare experts. It's a handful of anti EQUA lawyers, 0:26:15.080 --> 0:26:19.639 and that communication between anti EQUA advocates and state ags 0:26:19.840 --> 0:26:24.000 about using IQUA to advance states' rights has been going 0:26:24.080 --> 0:26:28.639 on for years, since way before the Brakkins case, since 0:26:28.680 --> 0:26:34.679 before Antonio was born. The Brackens didn't just have states 0:26:34.720 --> 0:26:38.680 on their side. They got help from another unexpected place, 0:26:39.320 --> 0:26:54.520 a federal judge. That story after the break. The strategy 0:26:54.680 --> 0:26:59.120 in this case isn't new. Texas has used the courts 0:26:59.160 --> 0:27:02.679 to challenge federal laws and statutes for a long time. 0:27:03.160 --> 0:27:06.080 More than one hundred House Republicans on Thursday signed onto 0:27:06.119 --> 0:27:09.200 an amicus brief in support of the Texas lawsuit aimed 0:27:09.200 --> 0:27:11.840 at overturning the election result in four swing states. 0:27:11.960 --> 0:27:15.400 Now comes a new challenge brought by Texas and other 0:27:15.520 --> 0:27:19.560 GOP dominated states that Obamacare must be struck down in 0:27:19.640 --> 0:27:20.680 its entirety. 0:27:20.840 --> 0:27:23.919 Texas is trying to invalidate the results of the presidential 0:27:23.960 --> 0:27:25.679 election in key swings. 0:27:25.800 --> 0:27:30.160 A lot of those cases were filed in one judge's district. 0:27:30.680 --> 0:27:33.960 A federal judge in Texas has temporarily blocked the Obama 0:27:34.000 --> 0:27:35.320 administration's public. 0:27:35.040 --> 0:27:38.119 School A federal judge in Fort Worth declared the Affordable 0:27:38.160 --> 0:27:39.919 Care Act unconstitutional. 0:27:40.359 --> 0:27:43.240 US District Judge Read O'Connor in Fort Worth agreed with 0:27:43.280 --> 0:27:46.840 a Republican led coalition of twenty states who brought the lawsuit. 0:27:47.680 --> 0:27:51.440 That was news coverage a federal judge read O'Connor striking 0:27:51.480 --> 0:27:54.919 down the Affordable Care Act and Obama ERAIC guidelines on 0:27:55.000 --> 0:28:00.040 transgender bathrooms and schools. He's also ruled against DHAKA and 0:28:00.080 --> 0:28:04.400 family leave for LGBTQ parents. Here's Matthew Fletcher. 0:28:05.640 --> 0:28:06.240 So he has a. 0:28:06.280 --> 0:28:12.040 History of granting injunctions or striking down federal statutes that 0:28:12.480 --> 0:28:15.439 conservatives tend to not like. So if you want a 0:28:15.440 --> 0:28:18.240 federal statute to go away, at least for a little while, 0:28:18.520 --> 0:28:20.200 you can always count at rit O'Connor. 0:28:20.960 --> 0:28:25.600 In twenty eighteen, the Associated Press called him conservatives go 0:28:25.680 --> 0:28:29.440