1 00:00:00,640 --> 00:00:03,640 Speaker 1: Just a note before we get started. The stories we're 2 00:00:03,680 --> 00:00:07,080 Speaker 1: sharing this season touch on different kinds of trauma. Please 3 00:00:07,080 --> 00:00:10,800 Speaker 1: take care of yourself while you listen. Think back to 4 00:00:10,880 --> 00:00:14,240 Speaker 1: the beginning of the pandemic. Not the first time you 5 00:00:14,400 --> 00:00:18,080 Speaker 1: heard about a new potentially serious virus or the first 6 00:00:18,120 --> 00:00:21,680 Speaker 1: case in the United States, but those couple of weeks 7 00:00:21,720 --> 00:00:25,680 Speaker 1: in March when the reality of coronavirus hit all at once. 8 00:00:26,280 --> 00:00:29,440 Speaker 2: So this was like the day in Massachusetts at least 9 00:00:29,720 --> 00:00:33,640 Speaker 2: the day before, like everything completely shut down, Like everybody's 10 00:00:33,680 --> 00:00:36,159 Speaker 2: on the in panic because this is when COVID just 11 00:00:36,240 --> 00:00:38,960 Speaker 2: happened in March, and nobody knows what the hell is happening, 12 00:00:39,000 --> 00:00:41,760 Speaker 2: but that everyone has to disinfect their hands and stay 13 00:00:41,800 --> 00:00:43,360 Speaker 2: away from each other and all this stuff. 14 00:00:43,840 --> 00:00:47,440 Speaker 1: This is Talia Landry, citizen of the match bew Wampanog tribe. 15 00:00:47,760 --> 00:00:49,280 Speaker 3: In those chaotic weeks of. 16 00:00:49,200 --> 00:00:52,400 Speaker 1: March twenty twenty, her tribe was waiting on word from 17 00:00:52,440 --> 00:00:53,479 Speaker 1: the federal government. 18 00:00:54,000 --> 00:00:56,800 Speaker 2: We're literally sitting here waiting for the phone call to say, hey, 19 00:00:56,880 --> 00:01:02,280 Speaker 2: you have funding, like you can supply by these disinfectants 20 00:01:02,320 --> 00:01:04,320 Speaker 2: and all these things to your tribal members so they 21 00:01:04,319 --> 00:01:06,720 Speaker 2: can be clean and try and stay safe during this pandemic. 22 00:01:06,920 --> 00:01:08,720 Speaker 2: And then they call us and they're like, no, actually, 23 00:01:08,959 --> 00:01:11,840 Speaker 2: you're not going to have your reservation land anymore. We 24 00:01:11,880 --> 00:01:15,920 Speaker 2: will be disestablishing your reservation lands due to the decision 25 00:01:15,920 --> 00:01:19,040 Speaker 2: that was made in this first district court. Blah blah blah. 26 00:01:19,360 --> 00:01:21,480 Speaker 2: And I think everyone was looking at each other like, 27 00:01:21,760 --> 00:01:23,800 Speaker 2: what the hell just happened. 28 00:01:27,880 --> 00:01:28,600 Speaker 3: To tell ya? 29 00:01:28,800 --> 00:01:32,360 Speaker 1: Third land was how the match fee survived four centuries 30 00:01:32,400 --> 00:01:35,920 Speaker 1: of colonization, and now it was being taken. 31 00:01:35,640 --> 00:01:38,880 Speaker 2: Away, and at a time where we can't even get together, 32 00:01:39,240 --> 00:01:43,280 Speaker 2: we can't even meet to console each other. It literally 33 00:01:43,319 --> 00:01:46,839 Speaker 2: seemed like it was a tactic to wipe us out completely. 34 00:01:47,440 --> 00:01:51,400 Speaker 1: The call came from the Department of the Interior under Trump. 35 00:01:51,840 --> 00:01:56,240 Speaker 1: The backstory is complicated, but basically, a court case. 36 00:01:56,040 --> 00:01:58,520 Speaker 3: Had punted this bizarre question to. 37 00:01:58,560 --> 00:02:03,240 Speaker 1: The Interior least on a law from nineteen thirty four, 38 00:02:03,920 --> 00:02:07,120 Speaker 1: did the mash be qualified to have what's called land 39 00:02:07,280 --> 00:02:12,279 Speaker 1: in trust? In other words, could the tribe have a reservation? 40 00:02:13,080 --> 00:02:18,639 Speaker 1: And the Department of the Interior said no. Native leaders 41 00:02:18,639 --> 00:02:23,800 Speaker 1: across the country were stunned because without reservation status, tribes 42 00:02:23,840 --> 00:02:27,760 Speaker 1: can't protect or govern our land, and that decision set 43 00:02:27,760 --> 00:02:29,480 Speaker 1: a dangerous precedent. 44 00:02:29,639 --> 00:02:33,120 Speaker 2: Any tribe that was fairly recognized after nineteen thirty four 45 00:02:33,160 --> 00:02:36,480 Speaker 2: of losing their lands, and that's a lot. 46 00:02:36,320 --> 00:02:40,440 Speaker 1: Of tribes, most tribes in the United States. Actually, those 47 00:02:40,440 --> 00:02:44,119 Speaker 1: indigenous nations were around long before the US was a country, 48 00:02:44,280 --> 00:02:48,520 Speaker 1: of course, but many weren't officially recognized until after nineteen 49 00:02:48,560 --> 00:02:51,040 Speaker 1: thirty four. So the mash Bee had to make the 50 00:02:51,080 --> 00:02:54,200 Speaker 1: case in court that they were and had always been 51 00:02:54,400 --> 00:02:55,560 Speaker 1: an indigenous nation. 52 00:02:56,400 --> 00:03:00,880 Speaker 2: It was bonkers, you know, because what they're arguing about is, 53 00:03:01,400 --> 00:03:05,360 Speaker 2: you know, sending kids to religious boarding schools, cutting their hair, 54 00:03:05,639 --> 00:03:09,080 Speaker 2: like doing operating on them without their parents knowing. 55 00:03:09,720 --> 00:03:12,880 Speaker 1: Talia's talking about the boarding school era I told you 56 00:03:12,919 --> 00:03:17,120 Speaker 1: about in the first episode. Lawyers debated whether or not 57 00:03:17,320 --> 00:03:21,920 Speaker 1: mash Bee kids going to boarding schools was enough to 58 00:03:22,200 --> 00:03:27,280 Speaker 1: prove that they were considered Native American before nineteen thirty four. 59 00:03:28,080 --> 00:03:28,320 Speaker 4: You know. 60 00:03:28,520 --> 00:03:30,280 Speaker 2: It was one of those things that I was like, 61 00:03:30,680 --> 00:03:33,240 Speaker 2: you guys are talking fancy. You're using big words, but 62 00:03:33,320 --> 00:03:37,440 Speaker 2: what you're saying is super inappropriate and casual for the situation. 63 00:03:38,120 --> 00:03:41,720 Speaker 1: What makes a case even more cruel and absurd is 64 00:03:41,760 --> 00:03:45,400 Speaker 1: who the mash Pewompanog are In the context of US history. 65 00:03:46,080 --> 00:03:49,960 Speaker 2: We were one of the first contacts of the English settlers, 66 00:03:50,000 --> 00:03:53,320 Speaker 2: and the we're the ones that greeted well, we're part 67 00:03:53,360 --> 00:03:56,360 Speaker 2: of the nation that greeted the Mayflower. 68 00:03:57,000 --> 00:04:00,720 Speaker 1: Of course it's been distorted beyond recognition, but the early 69 00:04:00,760 --> 00:04:05,400 Speaker 1: interactions between Talia's ancestors and those pilgrims on the Mayflower 70 00:04:06,000 --> 00:04:10,360 Speaker 1: is the basis of the Thanksgiving story. And now her 71 00:04:10,480 --> 00:04:14,760 Speaker 1: tribe was being told they hadn't been native long enough 72 00:04:15,160 --> 00:04:16,480 Speaker 1: to have a reservation. 73 00:04:17,440 --> 00:04:21,880 Speaker 2: What constitutes being Indian enough with I've never heard anybody 74 00:04:21,880 --> 00:04:25,960 Speaker 2: ask a white person how white are you? Like what 75 00:04:26,080 --> 00:04:28,520 Speaker 2: percent white are you? So for them to come and 76 00:04:28,560 --> 00:04:30,320 Speaker 2: say you're not Indian enough, it's like, who are you 77 00:04:30,400 --> 00:04:33,640 Speaker 2: to tell another nation or another race or ethnicity or 78 00:04:33,640 --> 00:04:37,080 Speaker 2: anything that they are who they are? Like? How entitled 79 00:04:37,120 --> 00:04:37,640 Speaker 2: can you be? 80 00:04:38,720 --> 00:04:39,800 Speaker 3: How did this happen? 81 00:04:40,240 --> 00:04:44,480 Speaker 1: I could tell you about the lawsuits, executive actions, congressional legislation, 82 00:04:44,760 --> 00:04:47,200 Speaker 1: and even the Trump tweet that got us here, But 83 00:04:47,279 --> 00:04:50,640 Speaker 1: it all started with a casino developer. He was mad 84 00:04:50,680 --> 00:04:53,400 Speaker 1: that a tribe could build a casino where he could not, 85 00:04:53,960 --> 00:04:56,680 Speaker 1: so he sued, and that lawsuit set off. 86 00:04:56,560 --> 00:04:57,960 Speaker 3: A chain of events. 87 00:04:58,240 --> 00:05:03,159 Speaker 1: The casino developer's original goal wasn't disestablishing the reservation of 88 00:05:03,200 --> 00:05:06,840 Speaker 1: the tribe that welcomed the pilgrims. He just wanted to 89 00:05:06,880 --> 00:05:10,440 Speaker 1: build a casino to make some money. The land rights 90 00:05:10,440 --> 00:05:23,560 Speaker 1: of the Mashpewampanague were just collateral damage. You're listening to 91 00:05:23,720 --> 00:05:26,880 Speaker 1: This Land, a podcast about the present day struggle for 92 00:05:27,080 --> 00:05:30,920 Speaker 1: Native rights from Cricket Media. I'm your host, Rebecca Nagle 93 00:05:31,320 --> 00:05:37,560 Speaker 1: Goheen Dad layetri ge La, citizen of Cherokee Nation. This season, 94 00:05:37,760 --> 00:05:41,520 Speaker 1: we're following how a string of custody battles over Native 95 00:05:41,600 --> 00:05:45,880 Speaker 1: children became a federal lawsuit that threatens everything from tribal 96 00:05:45,920 --> 00:05:50,600 Speaker 1: sovereignty to civil rights. Like that casino developers fight, the 97 00:05:50,680 --> 00:05:54,599 Speaker 1: attack on IQUA has collateral damage fallout that could go 98 00:05:54,720 --> 00:05:58,839 Speaker 1: way beyond one law. But it's harder to see because 99 00:05:58,839 --> 00:06:03,440 Speaker 1: at the center of the cases isn't casinos, it's children. 100 00:06:06,400 --> 00:06:18,840 Speaker 1: More after the break, Remember when I told you IQUA 101 00:06:18,880 --> 00:06:22,160 Speaker 1: has been challenged more times than the Affordable Care Act. Well, 102 00:06:22,200 --> 00:06:26,120 Speaker 1: that coordinated attack on IQUA has an origin story. It 103 00:06:26,160 --> 00:06:27,800 Speaker 1: all started with one case. 104 00:06:28,480 --> 00:06:31,880 Speaker 5: We are also tracking a custody dispute that goes before 105 00:06:31,960 --> 00:06:35,200 Speaker 5: the US Supreme Court today. At issue is the reach 106 00:06:35,320 --> 00:06:38,080 Speaker 5: of the Indian Child Welfare Act, known as IQUA. 107 00:06:38,600 --> 00:06:41,919 Speaker 1: You might remember the story of this case from last season. 108 00:06:42,240 --> 00:06:45,240 Speaker 1: It was called the Baby Girl case. A couple in 109 00:06:45,320 --> 00:06:49,080 Speaker 1: South Carolina wanted to adopt a Cherokee baby, but their 110 00:06:49,120 --> 00:06:53,200 Speaker 1: attorney hadn't followed IQUA. Once IQUA was applied, she went 111 00:06:53,240 --> 00:06:55,920 Speaker 1: to live with her dad, a citizen of Cherokee Nation 112 00:06:56,200 --> 00:06:59,920 Speaker 1: in Oklahoma. The case got wall to wall media cover, 113 00:07:00,560 --> 00:07:03,320 Speaker 1: and most of the media followed the same story as 114 00:07:03,400 --> 00:07:06,120 Speaker 1: doctor Phil Here's NPR. 115 00:07:05,960 --> 00:07:09,360 Speaker 6: First, there's the tragic saga of this case. In two 116 00:07:09,400 --> 00:07:12,560 Speaker 6: thousand and nine, Christy, a casino worker in Oklahoma and 117 00:07:12,640 --> 00:07:16,400 Speaker 6: single mother of two, learned she was pregnant and told Dustin, 118 00:07:16,960 --> 00:07:20,800 Speaker 6: but the relationship deteriorated and she broke off the engagement. 119 00:07:21,320 --> 00:07:25,120 Speaker 6: Beyond these facts, the protagonists in this story agree on little. 120 00:07:25,560 --> 00:07:27,920 Speaker 1: They focused on the family drama of it all, and 121 00:07:28,000 --> 00:07:29,560 Speaker 1: not so much the legal issues. 122 00:07:29,960 --> 00:07:32,760 Speaker 6: The Capabiancos were ordered to give their then two year 123 00:07:32,760 --> 00:07:36,640 Speaker 6: old child to her biological father, a man she'd never met. 124 00:07:37,000 --> 00:07:39,000 Speaker 2: It was before the worst day of our lives, and 125 00:07:40,160 --> 00:07:42,840 Speaker 2: I'm sure of hers, she cried after us. 126 00:07:43,600 --> 00:07:46,720 Speaker 1: Imagine if the next time abortion went to the Supreme 127 00:07:46,760 --> 00:07:50,720 Speaker 1: Court instead of focusing on the broader issues of reproductive freedom. 128 00:07:50,960 --> 00:07:53,560 Speaker 1: Every news outlet just wanted to tell the story of 129 00:07:53,640 --> 00:07:57,760 Speaker 1: one abortion. That's basically how the media covered Baby Girl. 130 00:07:58,240 --> 00:08:02,320 Speaker 1: They missed what was really going on. Normally, to understand 131 00:08:02,360 --> 00:08:05,480 Speaker 1: a Supreme Court case, you look at two things, the 132 00:08:05,560 --> 00:08:09,520 Speaker 1: legal arguments being made and who is making them. 133 00:08:10,000 --> 00:08:13,480 Speaker 7: And now I cannot think of any higher honor that 134 00:08:13,800 --> 00:08:17,880 Speaker 7: a lawyer could have than to introduce a man who 135 00:08:18,000 --> 00:08:23,640 Speaker 7: has to be the lawyer's lawyer, the solicitor's solicitor. He 136 00:08:23,680 --> 00:08:27,480 Speaker 7: has argued over ninety cases before the United States Supreme Court, 137 00:08:28,240 --> 00:08:28,920 Speaker 7: Paul Clement. 138 00:08:31,000 --> 00:08:35,040 Speaker 1: Clement is a former Solicitor General, meaning the US federal 139 00:08:35,080 --> 00:08:38,000 Speaker 1: government was his client, and he's argued in front of 140 00:08:38,040 --> 00:08:41,720 Speaker 1: the Supreme Court more than anyone in recent history. When 141 00:08:41,720 --> 00:08:44,400 Speaker 1: made public, his hourly rate has been more than one 142 00:08:44,440 --> 00:08:47,960 Speaker 1: thousand dollars an hour. But he takes on equa cases 143 00:08:48,120 --> 00:08:48,720 Speaker 1: for free. 144 00:08:49,280 --> 00:08:52,080 Speaker 8: It again just kind of amplified the fact that here's 145 00:08:52,120 --> 00:08:55,640 Speaker 8: this case that's a private adoption that's already gone through 146 00:08:55,679 --> 00:08:58,280 Speaker 8: the state court system, that all of a sudden is 147 00:08:58,400 --> 00:09:02,120 Speaker 8: this huge case at the Supreme Court. 148 00:09:02,640 --> 00:09:05,920 Speaker 1: This is chrisin Nemo, the deputy Attorney General and a 149 00:09:06,000 --> 00:09:09,640 Speaker 1: citizen of Cherokee Nation. She worked the Baby Girl case 150 00:09:09,679 --> 00:09:12,959 Speaker 1: from the beginning and she remembers when Clement took it. 151 00:09:13,360 --> 00:09:16,600 Speaker 1: She had never heard of him before, but other lawyers 152 00:09:16,679 --> 00:09:18,800 Speaker 1: on this big strategy call had. 153 00:09:19,240 --> 00:09:22,320 Speaker 8: So you know, as someone speaking up, well, you know, 154 00:09:22,600 --> 00:09:25,160 Speaker 8: you know the reason he's involved in this Indian law 155 00:09:25,240 --> 00:09:27,600 Speaker 8: case is because he's had these clients or he has 156 00:09:27,640 --> 00:09:29,840 Speaker 8: these specific interest in Indian gaming. 157 00:09:30,360 --> 00:09:34,720 Speaker 1: Remember that casino developer from Massachusetts who sued because a 158 00:09:34,800 --> 00:09:38,200 Speaker 1: tribe could build a casino where he couldn't. Well, the 159 00:09:38,320 --> 00:09:44,880 Speaker 1: lawyer who represented him was Paul Clement, and he used 160 00:09:44,920 --> 00:09:50,360 Speaker 1: the same legal argument in both cases. In the casino case, 161 00:09:50,600 --> 00:09:53,440 Speaker 1: Clement said that a tribe getting to build a casino 162 00:09:53,559 --> 00:09:57,760 Speaker 1: where his client could not was racial discrimination. He called 163 00:09:57,760 --> 00:10:01,000 Speaker 1: it a race based set aside that was no different 164 00:10:01,080 --> 00:10:06,520 Speaker 1: from quote a categorical preference for Italian Americans, Latinos, or 165 00:10:06,559 --> 00:10:11,640 Speaker 1: Mayflower descendants. And then in the baby girl case, he said. 166 00:10:11,679 --> 00:10:14,120 Speaker 4: And that's what makes this child an Indian child. 167 00:10:14,120 --> 00:10:15,360 Speaker 8: Here, it's biology. 168 00:10:15,760 --> 00:10:19,080 Speaker 4: It's biology combined with the fact that the tribe, based 169 00:10:19,120 --> 00:10:22,480 Speaker 4: on a racial classification, thinks that somebody with three hundred 170 00:10:22,480 --> 00:10:27,720 Speaker 4: and twenty five to one percent Indian blood is enough 171 00:10:28,160 --> 00:10:31,920 Speaker 4: to make them a tribal member eligible for tribal membership. 172 00:10:32,040 --> 00:10:34,600 Speaker 5: And as a result of that, some of these legal 173 00:10:34,679 --> 00:10:38,520 Speaker 5: theories would put tribal gaming at risk in the same 174 00:10:38,559 --> 00:10:41,080 Speaker 5: way they put the Indian Child Welfare Act at risk. 175 00:10:41,760 --> 00:10:45,560 Speaker 1: This is Kevin Washburn. He was the Assistant Secretary of 176 00:10:45,640 --> 00:10:48,480 Speaker 1: Indian Affairs at the time and is a citizen of 177 00:10:48,559 --> 00:10:49,440 Speaker 1: Chickasaw Nation. 178 00:10:50,160 --> 00:10:53,680 Speaker 5: And it might be too obvious to do it in 179 00:10:53,720 --> 00:10:55,880 Speaker 5: the gaming context, but if they can get the same 180 00:10:55,960 --> 00:10:59,120 Speaker 5: legal result in a child welfare context, maybe they can 181 00:10:59,160 --> 00:11:02,720 Speaker 5: then import it to the gaming context and you strike 182 00:11:02,760 --> 00:11:07,240 Speaker 5: at the legality of Indian gaming. So sometimes the Indian 183 00:11:07,280 --> 00:11:10,640 Speaker 5: shell welfare action cases may be a stocking horse for 184 00:11:10,800 --> 00:11:11,679 Speaker 5: gaming interests. 185 00:11:11,960 --> 00:11:17,160 Speaker 1: How much money is to be made if tribes aren't 186 00:11:17,200 --> 00:11:22,479 Speaker 1: allowed to operate casinos on tribal land without state regulation. 187 00:11:23,480 --> 00:11:28,200 Speaker 5: Tribal gaming revenues last year were in excess of thirty 188 00:11:28,240 --> 00:11:30,800 Speaker 5: billion dollars, so it's it's. 189 00:11:30,600 --> 00:11:44,319 Speaker 1: Significant Clement's race based argument could impact a lot more 190 00:11:44,520 --> 00:11:48,600 Speaker 1: than just casinos. Remember when I said, tribal leaders don't 191 00:11:48,640 --> 00:11:52,360 Speaker 1: think these cases are about Native children. They don't even 192 00:11:52,400 --> 00:11:56,640 Speaker 1: think it's about the Indian Child Welfare Act. The consensus 193 00:11:56,720 --> 00:12:00,080 Speaker 1: among Native leaders is that the attack on IQUA is 194 00:12:00,160 --> 00:12:04,960 Speaker 1: really about tribal sovereignty, in other words, the future existence 195 00:12:05,280 --> 00:12:10,319 Speaker 1: of tribes. To understand why, first you have to understand 196 00:12:10,440 --> 00:12:15,400 Speaker 1: tribes unique legal status. In the creation of the United States, 197 00:12:15,600 --> 00:12:20,000 Speaker 1: the federal government signed over three hundred treaties with indigenous nations. 198 00:12:20,440 --> 00:12:24,280 Speaker 1: It's the same constitutional process we use to sign treaties 199 00:12:24,320 --> 00:12:29,040 Speaker 1: with other nations like Japan and Germany, and those treaties 200 00:12:29,280 --> 00:12:35,000 Speaker 1: that nation to nation relationship is the foundation of tribal sovereignty, 201 00:12:35,600 --> 00:12:38,160 Speaker 1: in other words, indigenous rights. 202 00:12:39,559 --> 00:12:40,680 Speaker 3: Here's NEMO again. 203 00:12:42,120 --> 00:12:44,800 Speaker 8: The United States Supreme Court, federal courts, and state courts 204 00:12:44,840 --> 00:12:50,040 Speaker 8: have repeatedly said that someone's status as an Indian is 205 00:12:50,160 --> 00:12:56,720 Speaker 8: not racial because it's based on membership in an Indian tribe, 206 00:12:56,720 --> 00:12:58,840 Speaker 8: which is a separate government, and that that is a 207 00:12:58,880 --> 00:13:01,839 Speaker 8: political classific, not a racial classification. 208 00:13:02,679 --> 00:13:05,120 Speaker 1: Just like I have certain rights because I'm a citizen 209 00:13:05,200 --> 00:13:08,320 Speaker 1: of the United States or a resident of Oklahoma, I 210 00:13:08,360 --> 00:13:11,000 Speaker 1: have certain rights because I'm a citizen. 211 00:13:10,679 --> 00:13:11,839 Speaker 3: Of Cherokee Nation. 212 00:13:12,600 --> 00:13:16,360 Speaker 1: The Indian Child Welfare Act is not about biology or 213 00:13:16,480 --> 00:13:21,160 Speaker 1: race or what percent Native you are. It's about tribal citizenship. 214 00:13:21,559 --> 00:13:25,200 Speaker 1: The law only applies to children who are either enrolled 215 00:13:25,280 --> 00:13:28,760 Speaker 1: in a tribe or eligible to win roll, and tribes 216 00:13:28,760 --> 00:13:32,560 Speaker 1: determine their citizenship just like the US or Mexico or 217 00:13:32,679 --> 00:13:36,800 Speaker 1: any other country does. And that's where the collateral damage 218 00:13:36,920 --> 00:13:41,679 Speaker 1: comes in because if IQUA is unconstitutional because it's based 219 00:13:41,720 --> 00:13:42,559 Speaker 1: on race. 220 00:13:42,800 --> 00:13:46,320 Speaker 8: It literally could call into question all of federal Indian law. 221 00:13:46,760 --> 00:13:50,559 Speaker 8: And again we're talking about laws that apply to individual Indians, 222 00:13:50,840 --> 00:13:54,000 Speaker 8: you know, possession of eagle feathers, but we're also talking 223 00:13:54,040 --> 00:13:57,359 Speaker 8: about much much broader laws that apply to tribes as governments. 224 00:13:57,440 --> 00:14:03,360 Speaker 8: So issues like reservation status, land use, water rids, gaming, 225 00:14:04,200 --> 00:14:07,760 Speaker 8: any issue that you could ever think about involving tribes 226 00:14:07,960 --> 00:14:12,000 Speaker 8: is questionable. If a court finds that EQUA is unconstitutional 227 00:14:12,000 --> 00:14:14,199 Speaker 8: because it's race based, IQUA is. 228 00:14:14,240 --> 00:14:17,680 Speaker 1: Just the first in a series of dominoes. If one 229 00:14:17,720 --> 00:14:21,520 Speaker 1: of these cases can topple IQUA, everything else goes with it. 230 00:14:23,040 --> 00:14:24,880 Speaker 3: Normally, of lawsuit. 231 00:14:24,440 --> 00:14:29,600 Speaker 1: Threatening the legal status of tribes would be big national news, 232 00:14:30,200 --> 00:14:33,560 Speaker 1: but in a country where most non native people don't 233 00:14:33,640 --> 00:14:35,280 Speaker 1: understand the legal. 234 00:14:35,000 --> 00:14:38,560 Speaker 3: Status of tribes, it was easy to miss. 235 00:14:38,760 --> 00:14:42,560 Speaker 1: The coverage of Baby Girl minimize the threat to tribal sovereignty. 236 00:14:43,200 --> 00:14:48,040 Speaker 6: Native Americans bristle at the charge of racial classification. Indian tribes, 237 00:14:48,080 --> 00:14:53,280 Speaker 6: they note, are quasi sovereign nations recognized by the US Constitution. 238 00:14:54,080 --> 00:14:58,120 Speaker 1: Because they were so focused on the heartbreaking custody battle. 239 00:14:58,560 --> 00:15:01,560 Speaker 6: Whatever the Supreme Court rules in June, the case of 240 00:15:01,720 --> 00:15:05,200 Speaker 6: Baby Girl, as she is known, is heartbreaking. No one 241 00:15:05,240 --> 00:15:09,000 Speaker 6: disputes that she was sublimely happy with her adoptive parents, 242 00:15:09,400 --> 00:15:12,720 Speaker 6: and videos of her with her father, now married, seemed 243 00:15:12,720 --> 00:15:14,760 Speaker 6: to show a little girl equally happy. 244 00:15:15,280 --> 00:15:20,320 Speaker 1: In the end, Baby Girl's father and Cherokee Nation lost. 245 00:15:21,280 --> 00:15:23,520 Speaker 8: So it was a lose in this case, but it 246 00:15:23,560 --> 00:15:27,320 Speaker 8: was very narrow and it very much preserved EQUA. 247 00:15:27,920 --> 00:15:32,960 Speaker 1: The Supreme Court didn't declare the Indian Child Welfare Act unconstitutional. 248 00:15:33,440 --> 00:15:37,360 Speaker 1: They just said it shouldn't apply to this case. But 249 00:15:37,760 --> 00:15:40,360 Speaker 1: in the way they wordered their opinion, they showed a 250 00:15:40,360 --> 00:15:44,520 Speaker 1: lot of sympathy for Clement's ideas about race and biology. 251 00:15:45,040 --> 00:15:49,320 Speaker 1: The Baby Girl case was blood in the water before it, 252 00:15:49,480 --> 00:15:53,600 Speaker 1: the constitutionality of IQUA was rarely challenged. In the eight 253 00:15:53,640 --> 00:15:56,880 Speaker 1: years since, more than a dozen cases have been brought. 254 00:15:57,400 --> 00:16:00,520 Speaker 9: Emotions run high as a local family fight to keep 255 00:16:00,560 --> 00:16:02,360 Speaker 9: their foster daughter after authority. 256 00:16:02,600 --> 00:16:05,720 Speaker 1: Most of those cases got thrown out, but that didn't 257 00:16:05,720 --> 00:16:09,560 Speaker 1: matter because as soon as one failed, two or three 258 00:16:09,680 --> 00:16:13,280 Speaker 1: more were waiting in the wings, and they all argued 259 00:16:13,320 --> 00:16:15,520 Speaker 1: IQUA was racial discrimination. 260 00:16:16,120 --> 00:16:19,280 Speaker 9: A California family was left railing when their six year 261 00:16:19,280 --> 00:16:22,440 Speaker 9: old foster daughter was removed from their home. I'll do 262 00:16:22,520 --> 00:16:25,360 Speaker 9: to the enforcement of a controversial law that says, because 263 00:16:25,360 --> 00:16:28,400 Speaker 9: of her Native American blood, she must be placed with 264 00:16:28,480 --> 00:16:31,920 Speaker 9: relatives who happened to live hundreds of miles away. 265 00:16:32,400 --> 00:16:35,560 Speaker 1: In the United States, there are two corporate law firms 266 00:16:35,600 --> 00:16:40,360 Speaker 1: that represent the oil industry more than anyone else. One 267 00:16:40,400 --> 00:16:44,280 Speaker 1: of those firms doesn't just represent companies like Chevron. They 268 00:16:44,320 --> 00:16:49,520 Speaker 1: work for every corner of the industry, pipelines, trade organizations, 269 00:16:49,680 --> 00:16:51,320 Speaker 1: lobbying groups, you name it. 270 00:16:51,880 --> 00:16:54,400 Speaker 3: And that firm is now representing the. 271 00:16:54,320 --> 00:16:57,240 Speaker 1: Brakeens in their big federal lawsuit. 272 00:16:58,320 --> 00:17:00,120 Speaker 3: That story after the break. 273 00:17:06,480 --> 00:17:09,919 Speaker 1: Casinos aren't the only corporations that would make more money 274 00:17:10,040 --> 00:17:11,800 Speaker 1: if tribal sovereignty went away. 275 00:17:12,560 --> 00:17:14,560 Speaker 8: Any of the other kind of areas of Indian law 276 00:17:14,560 --> 00:17:18,080 Speaker 8: that you're talking about that are big nationwide issues, land use, 277 00:17:18,160 --> 00:17:22,120 Speaker 8: water rights, gaming, those there's big, big money involved in that. 278 00:17:22,680 --> 00:17:24,639 Speaker 3: When NIMO says big money. 279 00:17:24,880 --> 00:17:28,080 Speaker 1: She means half of all gaming revenue in the United 280 00:17:28,119 --> 00:17:33,280 Speaker 1: States and tribal land. Tribes have jurisdiction of about two 281 00:17:33,400 --> 00:17:36,800 Speaker 1: percent of all land in the United States, but that 282 00:17:36,920 --> 00:17:40,359 Speaker 1: land holds about a third of all fossil fuel resources 283 00:17:40,480 --> 00:17:45,200 Speaker 1: in the country, like coal, natural gas, and oil, worth 284 00:17:45,240 --> 00:17:48,080 Speaker 1: around one point five trillion dollars. 285 00:17:48,640 --> 00:17:52,760 Speaker 8: When you're not associated with a tribe in that industry, 286 00:17:53,080 --> 00:17:55,720 Speaker 8: you often are at all as with tribal interests. 287 00:17:56,320 --> 00:17:59,920 Speaker 1: Matthew McGill, the lawyer representing the Brakeenes in that. 288 00:18:00,080 --> 00:18:02,520 Speaker 3: Big federal lawsuit, has used the. 289 00:18:02,480 --> 00:18:06,600 Speaker 1: Same arguments in casino cases that he's now using in 290 00:18:06,720 --> 00:18:11,040 Speaker 1: equa cases. Specifically that states rights argument we talked about 291 00:18:11,080 --> 00:18:14,240 Speaker 1: earlier in the season. He's used it to stop a 292 00:18:14,280 --> 00:18:18,920 Speaker 1: tribal casino from opening in Arizona and Gibson Done, where 293 00:18:18,960 --> 00:18:23,440 Speaker 1: Matthew McGill works, represents two of the top three casino 294 00:18:23,560 --> 00:18:28,560 Speaker 1: and gaming companies in the world. Gibson Dunn also specializes 295 00:18:28,800 --> 00:18:31,919 Speaker 1: in the other industry that comes up against tribes, a 296 00:18:31,960 --> 00:18:36,680 Speaker 1: lot oil. You've probably heard about the fight over the 297 00:18:36,760 --> 00:18:41,320 Speaker 1: Dakota Access pipeline because the resistance camp at Standing Rock 298 00:18:41,520 --> 00:18:47,800 Speaker 1: made national headlines Gibson Done represented the pipeline company. 299 00:18:48,720 --> 00:18:50,520 Speaker 3: What happened at Standing. 300 00:18:50,160 --> 00:18:55,800 Speaker 1: Rock worried the oil industry. One study estimated indigenous resistance 301 00:18:56,080 --> 00:19:01,639 Speaker 1: costs the Dakota Access pipeline seven point five billion dollars. 302 00:19:02,080 --> 00:19:07,359 Speaker 1: It also inspired movements against other pipelines. Industry leaders, including 303 00:19:07,440 --> 00:19:12,280 Speaker 1: lobbying groups that represent Gibson dun clients, have talked openly 304 00:19:12,480 --> 00:19:16,800 Speaker 1: about why these indigenous led protests need to be staffed. 305 00:19:17,600 --> 00:19:21,560 Speaker 1: Seven months after the resistance camp in North Dakota was 306 00:19:21,640 --> 00:19:27,200 Speaker 1: shut down, Gibson Dun filed the Brackens case in federal court. 307 00:19:31,200 --> 00:19:35,280 Speaker 1: Matthew McGill that lawyer at Gibson dun is currently working 308 00:19:35,400 --> 00:19:39,040 Speaker 1: on three challenges to IQUA that we know of, and 309 00:19:39,160 --> 00:19:42,800 Speaker 1: one of those cases shocked me. It's a case in 310 00:19:42,880 --> 00:19:46,160 Speaker 1: Missouri that I'm not supposed to know about because it's 311 00:19:46,200 --> 00:19:52,160 Speaker 1: still in family court. Working alongside McGill is Paul Clement. 312 00:19:52,840 --> 00:19:55,920 Speaker 1: Paul Clement showing up in family court is like the 313 00:19:55,960 --> 00:19:59,240 Speaker 1: head of cardiology at Harvard popping up to take your 314 00:19:59,240 --> 00:20:05,200 Speaker 1: blood pressure. It's extraordinary. And here's the thing about these lawsuits. 315 00:20:05,720 --> 00:20:09,359 Speaker 1: It only takes one case to topple IQUA and all 316 00:20:09,520 --> 00:20:13,360 Speaker 1: the dominoes that come after. And because the people mounting 317 00:20:13,480 --> 00:20:17,000 Speaker 1: challenges to Iqua have so much money, they can bring 318 00:20:17,240 --> 00:20:18,280 Speaker 1: as many. 319 00:20:18,080 --> 00:20:19,840 Speaker 3: Cases as it takes. 320 00:20:20,920 --> 00:20:24,200 Speaker 1: The day after Talia's tribe got that call from the Interior, 321 00:20:24,600 --> 00:20:27,600 Speaker 1: Talia went for a walk. She needed to clear her head. 322 00:20:28,080 --> 00:20:30,360 Speaker 1: She was headed down the main street in town when 323 00:20:30,359 --> 00:20:33,359 Speaker 1: she saw her cousin playing outside with our kids. 324 00:20:33,720 --> 00:20:36,040 Speaker 2: She stops us and we just start talking about everything 325 00:20:36,040 --> 00:20:39,000 Speaker 2: that was happening, and we just started like brainstorming and 326 00:20:39,119 --> 00:20:42,560 Speaker 2: just kind of like feeling and feeling what that meant, 327 00:20:42,560 --> 00:20:46,159 Speaker 2: what that felt like to have land underneath you and 328 00:20:46,200 --> 00:20:48,800 Speaker 2: then kind of take it, have it taken away within 329 00:20:49,160 --> 00:20:50,520 Speaker 2: the matter of like seconds. 330 00:20:50,520 --> 00:20:54,520 Speaker 1: It seemed what made the whole thing harder was COVID. 331 00:20:55,200 --> 00:20:58,159 Speaker 1: In normal times, they would have all gotten together, but 332 00:20:58,240 --> 00:20:59,800 Speaker 1: they couldn't do that now. 333 00:21:00,119 --> 00:21:02,040 Speaker 2: And so we just thought, like what can we do, 334 00:21:02,520 --> 00:21:05,560 Speaker 2: and so we thought of the spirit fire protest, and 335 00:21:06,560 --> 00:21:10,840 Speaker 2: we initiated it and said, you know, ask supporters asked 336 00:21:10,840 --> 00:21:14,520 Speaker 2: the public just to light a fire or any sort 337 00:21:14,560 --> 00:21:17,800 Speaker 2: of fire or flame, you know, a candle fire outside anything. 338 00:21:18,280 --> 00:21:21,840 Speaker 2: The day before the court date was just to support 339 00:21:21,840 --> 00:21:24,680 Speaker 2: the decision makers that they'll see the truth and what's 340 00:21:24,760 --> 00:21:28,600 Speaker 2: right and what's moral and you know, like what is meant. 341 00:21:28,359 --> 00:21:31,719 Speaker 1: To be the match Biewampanogh took the Department of the 342 00:21:31,760 --> 00:21:34,760 Speaker 1: Interior back to court. 343 00:21:34,280 --> 00:21:37,040 Speaker 2: And it was just astounding the amount of support that 344 00:21:37,080 --> 00:21:40,120 Speaker 2: we received and a lot of people kept their fires 345 00:21:40,160 --> 00:21:44,560 Speaker 2: going until we received our decision. Was it was just amazing, 346 00:21:44,600 --> 00:21:46,919 Speaker 2: and honestly, if you ask me, I think it worked. 347 00:21:47,080 --> 00:21:50,679 Speaker 2: I think our spiritual ceremony and our protests in that 348 00:21:50,760 --> 00:21:55,240 Speaker 2: way helped and actually was one of the main reasons 349 00:21:55,280 --> 00:21:58,560 Speaker 2: why we were able to get such a quick response 350 00:21:58,640 --> 00:22:01,199 Speaker 2: in such a positive one when we were getting negative 351 00:22:01,200 --> 00:22:03,960 Speaker 2: ones after negative after negative in the lower courts. 352 00:22:04,440 --> 00:22:07,679 Speaker 1: A federal court ordered the Department of the Interior to 353 00:22:07,760 --> 00:22:13,600 Speaker 1: reverse its decision. The mashb Wampanog reservation remained intact. That 354 00:22:13,720 --> 00:22:17,000 Speaker 1: casino developer dropped his effort to open a casino in 355 00:22:17,040 --> 00:22:22,320 Speaker 1: Massachusetts years ago. Actually, he and Paul Clement weren't even 356 00:22:22,400 --> 00:22:26,480 Speaker 1: around when the mash Bee almost lost their reservation. The 357 00:22:26,520 --> 00:22:30,480 Speaker 1: mashbe Wampanog story shows just how fragile tribal land and 358 00:22:30,520 --> 00:22:34,840 Speaker 1: treaty rights are. Indigenous nations that have existed since the 359 00:22:34,920 --> 00:22:39,000 Speaker 1: beginning of time have watched the ground underneath them change 360 00:22:39,040 --> 00:22:42,400 Speaker 1: with one court decision or the whims of one administration. 361 00:22:44,520 --> 00:22:48,640 Speaker 1: That's why the Bracken's case is scary. If the Supreme 362 00:22:48,680 --> 00:22:52,280 Speaker 1: Court decides that the Brakenes, or the Cliffords or the 363 00:22:52,320 --> 00:22:57,080 Speaker 1: Foster Children were discriminated against based on race, it could 364 00:22:57,119 --> 00:23:01,840 Speaker 1: set off a chain reaction, one that impact the constitutionality 365 00:23:02,200 --> 00:23:09,600 Speaker 1: of tribal land, police, health services, gaming, even tribal governments. Sure, 366 00:23:09,720 --> 00:23:13,080 Speaker 1: we could still have powows and museums, but we would 367 00:23:13,080 --> 00:23:17,040 Speaker 1: no longer be able to govern ourselves. We'd be just 368 00:23:17,160 --> 00:23:24,960 Speaker 1: another group of people. I wasn't surprised to find the 369 00:23:25,000 --> 00:23:29,399 Speaker 1: attack on Iqua is really about tribal sovereignty. What I 370 00:23:29,560 --> 00:23:33,280 Speaker 1: didn't expect to find was that this attack on tribes 371 00:23:33,680 --> 00:23:43,200 Speaker 1: is just part of a bigger agenda next time on 372 00:23:43,200 --> 00:23:47,520 Speaker 1: this land. They've also come to federal Indian law because 373 00:23:47,680 --> 00:23:51,080 Speaker 1: it does lack of visibility and people don't realize the 374 00:23:51,119 --> 00:23:52,680 Speaker 1: amount of damage that it can do. 375 00:23:53,560 --> 00:23:57,440 Speaker 7: Right now, government discriminates against both blacks and whites, depending 376 00:23:57,480 --> 00:24:00,320 Speaker 7: on depending upon the particular issue. 377 00:24:00,359 --> 00:24:03,520 Speaker 1: Likes endpoint like, Oh, if they defeat Iqua, then that's 378 00:24:03,520 --> 00:24:04,400 Speaker 1: what they're looking for. 379 00:24:04,880 --> 00:24:07,560 Speaker 2: No, it's not about equa that's just one stuff on 380 00:24:07,640 --> 00:24:08,280 Speaker 2: this path. 381 00:24:22,920 --> 00:24:27,359 Speaker 8: Heyay y'all. 382 00:24:27,840 --> 00:24:28,040 Speaker 2: Hey. 383 00:24:32,400 --> 00:24:36,040 Speaker 1: This Land is reported, written and hosted by me Rebecca 384 00:24:36,119 --> 00:24:43,160 Speaker 1: Nagle Goheen, citizen of Cherokee Nation. Additional reporting this season 385 00:24:43,359 --> 00:24:47,639 Speaker 1: from Maddie Stone, Martha Troyan, citizen of Obie Chika, kan 386 00:24:47,880 --> 00:24:51,520 Speaker 1: lack Suel First Nation, and Amy Westervelt. 387 00:24:50,920 --> 00:24:51,879 Speaker 3: From Cricket Media. 388 00:24:52,080 --> 00:24:57,280 Speaker 1: Our executive producers are John Favreau, Sarah geismer Lyra Smith, 389 00:24:57,520 --> 00:25:01,680 Speaker 1: and Katie Long, with special things to Allison Falsetta from 390 00:25:01,680 --> 00:25:06,440 Speaker 1: Critical Frequency. Our managing producer is Amy Westervelt. Our senior 391 00:25:06,480 --> 00:25:10,600 Speaker 1: producer is Sarah Ventry, and our story editor is Raca Murphy. 392 00:25:11,000 --> 00:25:14,920 Speaker 1: Additional editing for Martha Troyan and Polly Dennette Claw, who 393 00:25:15,000 --> 00:25:19,920 Speaker 1: is Dney. Sound design by Lyra Smith, Mark Bush and Charlotte. 394 00:25:20,000 --> 00:25:25,280 Speaker 1: Landis original score composed by Jared Tate, citizen of Chickistan Nation. 395 00:25:25,880 --> 00:25:29,479 Speaker 1: Our outra song is an honor song for adoptees, written 396 00:25:29,560 --> 00:25:32,680 Speaker 1: and sung by Jerry Dearley, who is Oglala Lakota. 397 00:25:33,160 --> 00:25:34,920 Speaker 3: Our fact checker is wood An Yan. 398 00:25:35,280 --> 00:25:38,439 Speaker 1: Our First Amendment Attorney is James Wheaton, founder of the 399 00:25:38,480 --> 00:25:42,919 Speaker 1: First Amendment Project podcast. Art by Kelly Gonzalez, citizen of 400 00:25:43,040 --> 00:25:48,120 Speaker 1: Cherokee Nation. Additional editing this episode by Savannah Marr, citizen 401 00:25:48,240 --> 00:25:51,800 Speaker 1: of the mash b Wampanog Nation. If you're enjoying the show, 402 00:25:51,920 --> 00:25:55,800 Speaker 1: please rate, review, and subscribe. It helps more people find us, 403 00:25:55,960 --> 00:25:58,879 Speaker 1: and please share it with your friends. If you have 404 00:25:58,920 --> 00:26:01,840 Speaker 1: a tip or information to share related to our reporting, 405 00:26:02,040 --> 00:26:06,119 Speaker 1: you can do that securely and anonymously through our secure drop. 406 00:26:06,480 --> 00:26:08,840 Speaker 1: You can find a link in the show notes for 407 00:26:09,000 --> 00:26:13,480 Speaker 1: more information about the battle over Mashbwampanog Nation's land rights 408 00:26:13,560 --> 00:26:16,359 Speaker 1: and links to coverage of the Baby Girl case, visit 409 00:26:16,440 --> 00:26:19,720 Speaker 1: the show's website. This season of This Land touches on 410 00:26:19,840 --> 00:26:24,399 Speaker 1: different forms of family, childhood, and racial trauma. If you 411 00:26:24,480 --> 00:26:27,480 Speaker 1: feel like you could use support, please check our show 412 00:26:27,520 --> 00:26:32,800 Speaker 1: notes or website this landpodcast dot com to find resources 413 00:26:32,920 --> 00:26:37,720 Speaker 1: for adoptees and survivors of childhood trauma, abuse, foster care, 414 00:26:37,920 --> 00:26:38,920 Speaker 1: and boarding schools.