WEBVTT - 5. Pro Bono 0:00:00.640 --> 0:00:03.640 Just a note before we get started. The stories we're 0:00:03.680 --> 0:00:07.080 sharing this season touch on different kinds of trauma. Please 0:00:07.080 --> 0:00:10.800 take care of yourself while you listen. Think back to 0:00:10.880 --> 0:00:14.240 the beginning of the pandemic. Not the first time you 0:00:14.400 --> 0:00:18.080 heard about a new potentially serious virus or the first 0:00:18.120 --> 0:00:21.680 case in the United States, but those couple of weeks 0:00:21.720 --> 0:00:25.680 in March when the reality of coronavirus hit all at once. 0:00:26.280 --> 0:00:29.440 So this was like the day in Massachusetts at least 0:00:29.720 --> 0:00:33.640 the day before, like everything completely shut down, Like everybody's 0:00:33.680 --> 0:00:36.159 on the in panic because this is when COVID just 0:00:36.240 --> 0:00:38.960 happened in March, and nobody knows what the hell is happening, 0:00:39.000 --> 0:00:41.760 but that everyone has to disinfect their hands and stay 0:00:41.800 --> 0:00:43.360 away from each other and all this stuff. 0:00:43.840 --> 0:00:47.440 This is Talia Landry, citizen of the match bew Wampanog tribe. 0:00:47.760 --> 0:00:49.280 In those chaotic weeks of. 0:00:49.200 --> 0:00:52.400 March twenty twenty, her tribe was waiting on word from 0:00:52.440 --> 0:00:53.479 the federal government. 0:00:54.000 --> 0:00:56.800 We're literally sitting here waiting for the phone call to say, hey, 0:00:56.880 --> 0:01:02.280 you have funding, like you can supply by these disinfectants 0:01:02.320 --> 0:01:04.320 and all these things to your tribal members so they 0:01:04.319 --> 0:01:06.720 can be clean and try and stay safe during this pandemic. 0:01:06.920 --> 0:01:08.720 And then they call us and they're like, no, actually, 0:01:08.959 --> 0:01:11.840 you're not going to have your reservation land anymore. We 0:01:11.880 --> 0:01:15.920 will be disestablishing your reservation lands due to the decision 0:01:15.920 --> 0:01:19.040 that was made in this first district court. Blah blah blah. 0:01:19.360 --> 0:01:21.480 And I think everyone was looking at each other like, 0:01:21.760 --> 0:01:23.800 what the hell just happened. 0:01:27.880 --> 0:01:28.600 To tell ya? 0:01:28.800 --> 0:01:32.360 Third land was how the match fee survived four centuries 0:01:32.400 --> 0:01:35.920 of colonization, and now it was being taken. 0:01:35.640 --> 0:01:38.880 Away, and at a time where we can't even get together, 0:01:39.240 --> 0:01:43.280 we can't even meet to console each other. It literally 0:01:43.319 --> 0:01:46.839 seemed like it was a tactic to wipe us out completely. 0:01:47.440 --> 0:01:51.400 The call came from the Department of the Interior under Trump. 0:01:51.840 --> 0:01:56.240 The backstory is complicated, but basically, a court case. 0:01:56.040 --> 0:01:58.520 Had punted this bizarre question to. 0:01:58.560 --> 0:02:03.240 The Interior least on a law from nineteen thirty four, 0:02:03.920 --> 0:02:07.120 did the mash be qualified to have what's called land 0:02:07.280 --> 0:02:12.279 in trust? In other words, could the tribe have a reservation? 0:02:13.080 --> 0:02:18.639 And the Department of the Interior said no. Native leaders 0:02:18.639 --> 0:02:23.800 across the country were stunned because without reservation status, tribes 0:02:23.840 --> 0:02:27.760 can't protect or govern our land, and that decision set 0:02:27.760 --> 0:02:29.480 a dangerous precedent. 0:02:29.639 --> 0:02:33.120 Any tribe that was fairly recognized after nineteen thirty four 0:02:33.160 --> 0:02:36.480 of losing their lands, and that's a lot. 0:02:36.320 --> 0:02:40.440 Of tribes, most tribes in the United States. Actually, those 0:02:40.440 --> 0:02:44.119 indigenous nations were around long before the US was a country, 0:02:44.280 --> 0:02:48.520 of course, but many weren't officially recognized until after nineteen 0:02:48.560 --> 0:02:51.040 thirty four. So the mash Bee had to make the 0:02:51.080 --> 0:02:54.200 case in court that they were and had always been 0:02:54.400 --> 0:02:55.560 an indigenous nation. 0:02:56.400 --> 0:03:00.880 It was bonkers, you know, because what they're arguing about is, 0:03:01.400 --> 0:03:05.360 you know, sending kids to religious boarding schools, cutting their hair, 0:03:05.639 --> 0:03:09.080 like doing operating on them without their parents knowing. 0:03:09.720 --> 0:03:12.880 Talia's talking about the boarding school era I told you 0:03:12.919 --> 0:03:17.120 about in the first episode. Lawyers debated whether or not 0:03:17.320 --> 0:03:21.920 mash Bee kids going to boarding schools was enough to 0:03:22.200 --> 0:03:27.280 prove that they were considered Native American before nineteen thirty four. 0:03:28.080 --> 0:03:28.320 You know. 0:03:28.520 --> 0:03:30.280 It was one of those things that I was like, 0:03:30.680 --> 0:03:33.240 you guys are talking fancy. You're using big words, but 0:03:33.320 --> 0:03:37.440 what you're saying is super inappropriate and casual for the situation. 0:03:38.120 --> 0:03:41.720 What makes a case even more cruel and absurd is 0:03:41.760 --> 0:03:45.400 who the mash Pewompanog are In the context of US history. 0:03:46.080 --> 0:03:49.960 We were one of the first contacts of the English settlers, 0:03:50.000 --> 0:03:53.320 and the we're the ones that greeted well, we're part 0:03:53.360 --> 0:03:56.360 of the nation that greeted the Mayflower. 0:03:57.000 --> 0:04:00.720 Of course it's been distorted beyond recognition, but the early 0:04:00.760 --> 0:04:05.400 interactions between Talia's ancestors and those pilgrims on the Mayflower 0:04:06.000 --> 0:04:10.360 is the basis of the Thanksgiving story. And now her 0:04:10.480 --> 0:04:14.760 tribe was being told they hadn't been native long enough 0:04:15.160 --> 0:04:16.480 to have a reservation. 0:04:17.440 --> 0:04:21.880 What constitutes being Indian enough with I've never heard anybody 0:04:21.880 --> 0:04:25.960 ask a white person how white are you? Like what 0:04:26.080 --> 0:04:28.520 percent white are you? So for them to come and 0:04:28.560 --> 0:04:30.320 say you're not Indian enough, it's like, who are you 0:04:30.400 --> 0:04:33.640 to tell another nation or another race or ethnicity or 0:04:33.640 --> 0:04:37.080 anything that they are who they are? Like? How entitled 0:04:37.120 --> 0:04:37.640 can you be? 0:04:38.720 --> 0:04:39.800 How did this happen? 0:04:40.240 --> 0:04:44.480 I could tell you about the lawsuits, executive actions, congressional legislation, 0:04:44.760 --> 0:04:47.200 and even the Trump tweet that got us here, But 0:04:47.279 --> 0:04:50.640 it all started with a casino developer. He was mad 0:04:50.680 --> 0:04:53.400 that a tribe could build a casino where he could not, 0:04:53.960 --> 0:04:56.680 so he sued, and that lawsuit set off. 0:04:56.560 --> 0:04:57.960 A chain of events. 0:04:58.240 --> 0:05:03.159 The casino developer's original goal wasn't disestablishing the reservation of 0:05:03.200 --> 0:05:06.840 the tribe that welcomed the pilgrims. He just wanted to 0:05:06.880 --> 0:05:10.440 build a casino to make some money. The land rights 0:05:10.440 --> 0:05:23.560 of the Mashpewampanague were just collateral damage. You're listening to 0:05:23.720 --> 0:05:26.880 This Land, a podcast about the present day struggle for 0:05:27.080 --> 0:05:30.920 Native rights from Cricket Media. I'm your host, Rebecca Nagle 0:05:31.320 --> 0:05:37.560 Goheen Dad layetri ge La, citizen of Cherokee Nation. This season, 0:05:37.760 --> 0:05:41.520 we're following how a string of custody battles over Native 0:05:41.600 --> 0:05:45.880 children became a federal lawsuit that threatens everything from tribal 0:05:45.920 --> 0:05:50.600 sovereignty to civil rights. Like that casino developers fight, the 0:05:50.680 --> 0:05:54.599 attack on IQUA has collateral damage fallout that could go 0:05:54.720 --> 0:05:58.839 way beyond one law. But it's harder to see because 0:05:58.839 --> 0:06:03.440 at the center of the cases isn't casinos, it's children. 0:06:06.400 --> 0:06:18.840 More after the break, Remember when I told you IQUA 0:06:18.880 --> 0:06:22.160 has been challenged more times than the Affordable Care Act. Well, 0:06:22.200 --> 0:06:26.120 that coordinated attack on IQUA has an origin story. It 0:06:26.160 --> 0:06:27.800 all started with one case. 0:06:28.480 --> 0:06:31.880 We are also tracking a custody dispute that goes before 0:06:31.960 --> 0:06:35.200 the US Supreme Court today. At issue is the reach 0:06:35.320 --> 0:06:38.080 of the Indian Child Welfare Act, known as IQUA. 0:06:38.600 --> 0:06:41.919 You might remember the story of this case from last season. 0:06:42.240 --> 0:06:45.240 It was called the Baby Girl case. A couple in 0:06:45.320 --> 0:06:49.080 South Carolina wanted to adopt a Cherokee baby, but their 0:06:49.120 --> 0:06:53.200 attorney hadn't followed IQUA. Once IQUA was applied, she went 0:06:53.240 --> 0:06:55.920 to live with her dad, a citizen of Cherokee Nation 0:06:56.200 --> 0:06:59.920 in Oklahoma. The case got wall to wall media cover, 0:07:00.560 --> 0:07:03.320 and most of the media followed the same story as 0:07:03.400 --> 0:07:06.120 doctor Phil Here's NPR. 0:07:05.960 --> 0:07:09.360 First, there's the tragic saga of this case. In two 0:07:09.400 --> 0:07:12.560 thousand and nine, Christy, a casino worker in Oklahoma and 0:07:12.640 --> 0:07:16.400 single mother of two, learned she was pregnant and told Dustin, 0:07:16.960 --> 0:07:20.800 but the relationship deteriorated and she broke off the engagement. 0:07:21.320 --> 0:07:25.120 Beyond these facts, the protagonists in this story agree on little. 0:07:25.560 --> 0:07:27.920 They focused on the family drama of it all, and 0:07:28.000 --> 0:07:29.560 not so much the legal issues. 0:07:29.960 --> 0:07:32.760 The Capabiancos were ordered to give their then two year 0:07:32.760 --> 0:07:36.640 old child to her biological father, a man she'd never met. 0:07:37.000 --> 0:07:39.000 It was before the worst day of our lives, and 0:07:40.160 --> 0:07:42.840 I'm sure of hers, she cried after us. 0:07:43.600 --> 0:07:46.720 Imagine if the next time abortion went to the Supreme 0:07:46.760 --> 0:07:50.720 Court instead of focusing on the broader issues of reproductive freedom. 0:07:50.960 --> 0:07:53.560 Every news outlet just wanted to tell the story of 0:07:53.640 --> 0:07:57.760 one abortion. That's basically how the media covered Baby Girl. 0:07:58.240 --> 0:08:02.320 They missed what was really going on. Normally, to understand 0:08:02.360 --> 0:08:05.480 a Supreme Court case, you look at two things, the 0:08:05.560 --> 0:08:09.520 legal arguments being made and who is making them. 0:08:10.000 --> 0:08:13.480 And now I cannot think of any higher honor that 0:08:13.800 --> 0:08:17.880 a lawyer could have than to introduce a man who 0:08:18.000 --> 0:08:23.640 has to be the lawyer's lawyer, the solicitor's solicitor. He 0:08:23.680 --> 0:08:27.480 has argued over ninety cases before the United States Supreme Court, 0:08:28.240 --> 0:08:28.920 Paul Clement. 0:08:31.000 --> 0:08:35.040 Clement is a former Solicitor General, meaning the US federal 0:08:35.080 --> 0:08:38.000 government was his client, and he's argued in front of 0:08:38.040 --> 0:08:41.720 the Supreme Court more than anyone in recent history. When 0:08:41.720 --> 0:08:44.400 made public, his hourly rate has been more than one 0:08:44.440 --> 0:08:47.960 thousand dollars an hour. But he takes on equa cases 0:08:48.120 --> 0:08:48.720 for free. 0:08:49.280 --> 0:08:52.080 It again just kind of amplified the fact that here's 0:08:52.120 --> 0:08:55.640 this case that's a private adoption that's already gone through 0:08:55.679 --> 0:08:58.280 the state court system, that all of a sudden is 0:08:58.400 --> 0:09:02.120 this huge case at the Supreme Court. 0:09:02.640 --> 0:09:05.920 This is chrisin Nemo, the deputy Attorney General and a 0:09:06.000 --> 0:09:09.640 citizen of Cherokee Nation. She worked the Baby Girl case 0:09:09.679 --> 0:09:12.959 from the beginning and she remembers when Clement took it. 0:09:13.360 --> 0:09:16.600 She had never heard of him before, but other lawyers 0:09:16.679 --> 0:09:18.800 on this big strategy call had. 0:09:19.240 --> 0:09:22.320 So you know, as someone speaking up, well, you know, 0:09:22.600 --> 0:09:25.160 you know the reason he's involved in this Indian law 0:09:25.240 --> 0:09:27.600 case is because he's had these clients or he has 0:09:27.640 --> 0:09:29.840 these specific interest in Indian gaming. 0:09:30.360 --> 0:09:34.720 Remember that casino developer from Massachusetts who sued because a 0:09:34.800 --> 0:09:38.200 tribe could build a casino where he couldn't. Well, the 0:09:38.320 --> 0:09:44.880 lawyer who represented him was Paul Clement, and he used 0:09:44.920 --> 0:09:50.360 the same legal argument in both cases. In the casino case, 0:09:50.600 --> 0:09:53.440 Clement said that a tribe getting to build a casino 0:09:53.559 --> 0:09:57.760 where his client could not was racial discrimination. He called 0:09:57.760 --> 0:10:01.000 it a race based set aside that was no different 0:10:01.080 --> 0:10:06.520 from quote a categorical preference for Italian Americans, Latinos, or 0:10:06.559 --> 0:10:11.640 Mayflower descendants. And then in the baby girl case, he said. 0:10:11.679 --> 0:10:14.120 And that's what makes this child an Indian child. 0:10:14.120 --> 0:10:15.360 Here, it's biology. 0:10:15.760 --> 0:10:19.080 It's biology combined with the fact that the tribe, based 0:10:19.120 --> 0:10:22.480 on a racial classification, thinks that somebody with three hundred 0:10:22.480 --> 0:10:27.720 and twenty five to one percent Indian blood is enough 0:10:28.160 --> 0:10:31.920 to make them a tribal member eligible for tribal membership. 0:10:32.040 --> 0:10:34.600 And as a result of that, some of these legal 0:10:34.679 --> 0:10:38.520 theories would put tribal gaming at risk in the same 0:10:38.559 --> 0:10:41.080 way they put the Indian Child Welfare Act at risk. 0:10:41.760 --> 0:10:45.560 This is Kevin Washburn. He was the Assistant Secretary of 0:10:45.640 --> 0:10:48.480 Indian Affairs at the time and is a citizen of 0:10:48.559 --> 0:10:49.440 Chickasaw Nation. 0:10:50.160 --> 0:10:53.680 And it might be too obvious to do it in 0:10:53.720 --> 0:10:55.880 the gaming context, but if they can get the same 0:10:55.960 --> 0:10:59.120 legal result in a child welfare context, maybe they can 0:10:59.160 --> 0:11:02.720 then import it to the gaming context and you strike 0:11:02.760 --> 0:11:07.240 at the legality of Indian gaming. So sometimes the Indian 0:11:07.280 --> 0:11:10.640 shell welfare action cases may be a stocking horse for 0:11:10.800 --> 0:11:11.679 gaming interests. 0:11:11.960 --> 0:11:17.160 How much money is to be made if tribes aren't 0:11:17.200 --> 0:11:22.479 allowed to operate casinos on tribal land without state regulation. 0:11:23.480 --> 0:11:28.200 Tribal gaming revenues last year were in excess of thirty 0:11:28.240 --> 0:11:30.800 billion dollars, so it's it's. 0:11:30.600 --> 0:11:44.319 Significant Clement's race based argument could impact a lot more 0:11:44.520 --> 0:11:48.600 than just casinos. Remember when I said, tribal leaders don't 0:11:48.640 --> 0:11:52.360 think these cases are about Native children. They don't even 0:11:52.400 --> 0:11:56.640 think it's about the Indian Child Welfare Act. The consensus 0:11:56.720 --> 0:12:00.080 among Native leaders is that the attack on IQUA is 0:12:00.160 --> 0:12:04.960 really about tribal sovereignty, in other words, the future existence 0:12:05.280 --> 0:12:10.319 of tribes. To understand why, first you have to understand 0:12:10.440 --> 0:12:15.400 tribes unique legal status. In the creation of the United States, 0:12:15.600 --> 0:12:20.000 the federal government signed over three hundred treaties with indigenous nations. 0:12:20.440 --> 0:12:24.280 It's the same constitutional process we use to sign treaties 0:12:24.320 --> 0:12:29.040 with other nations like Japan and Germany, and those treaties 0:12:29.280 --> 0:12:35.000 that nation to nation relationship is the foundation of tribal sovereignty, 0:12:35.600 --> 0:12:38.160 in other words, indigenous rights. 0:12:39.559 --> 0:12:40.680 Here's NEMO again. 0:12:42.120 --> 0:12:44.800 The United States Supreme Court, federal courts, and state courts 0:12:44.840 --> 0:12:50.040 have repeatedly said that someone's status as an Indian is 0:12:50.160 --> 0:12:56.720 not racial because it's based on membership in an Indian tribe, 0:12:56.720 --> 0:12:58.840 which is a separate government, and that that is a 0:12:58.880 --> 0:13:01.839 political classific, not a racial classification. 0:13:02.679 --> 0:13:05.120 Just like I have certain rights because I'm a citizen 0:13:05.200 --> 0:13:08.320 of the United States or a resident of Oklahoma, I 0:13:08.360 --> 0:13:11.000 have certain rights because I'm a citizen. 0:13:10.679 --> 0:13:11.839 Of Cherokee Nation. 0:13:12.600 --> 0:13:16.360 The Indian Child Welfare Act is not about biology or 0:13:16.480 --> 0:13:21.160 race or what percent Native you are. It's about tribal citizenship. 0:13:21.559 --> 0:13:25.200 The law only applies to children who are either enrolled 0:13:25.280 --> 0:13:28.760 in a tribe or eligible to win roll, and tribes 0:13:28.760 --> 0:13:32.560 determine their citizenship just like the US or Mexico or 0:13:32.679 --> 0:13:36.800 any other country does. And that's where the collateral damage 0:13:36.920 --> 0:13:41.679 comes in because if IQUA is unconstitutional because it's based 0:13:41.720 --> 0:13:42.559 on race. 0:13:42.800 --> 0:13:46.320 It literally could call into question all of federal Indian law. 0:13:46.760 --> 0:13:50.559 And again we're talking about laws that apply to individual Indians, 0:13:50.840 --> 0:13:54.000 you know, possession of eagle feathers, but we're also talking 0:13:54.040 --> 0:13:57.359 about much much broader laws that apply to tribes as governments. 0:13:57.440 --> 0:14:03.360 So issues like reservation status, land use, water rids, gaming, 0:14:04.200 --> 0:14:07.760 any issue that you could ever think about involving tribes 0:14:07.960 --> 0:14:12.000 is questionable. If a court finds that EQUA is unconstitutional 0:14:12.000 --> 0:14:14.199 because it's race based, IQUA is. 0:14:14.240 --> 0:14:17.680 Just the first in a series of dominoes. If one 0:14:17.720 --> 0:14:21.520 of these cases can topple IQUA, everything else goes with it. 0:14:23.040 --> 0:14:24.880 Normally, of lawsuit. 0:14:24.440 --> 0:14:29.600 Threatening the legal status of tribes would be big national news, 0:14:30.200 --> 0:14:33.560 but in a country where most non native people don't 0:14:33.640 --> 0:14:35.280 understand the legal. 0:14:35.000 --> 0:14:38.560 Status of tribes, it was easy to miss. 0:14:38.760 --> 0:14:42.560 The coverage of Baby Girl minimize the threat to tribal sovereignty. 0:14:43.200 --> 0:14:48.040 Native Americans bristle at the charge of racial classification. Indian tribes, 0:14:48.080 --> 0:14:53.280 they note, are quasi sovereign nations recognized by the US Constitution. 0:14:54.080 --> 0:14:58.120 Because they were so focused on the heartbreaking custody battle. 0:14:58.560 --> 0:15:01.560 Whatever the Supreme Court rules in June, the case of 0:15:01.720 --> 0:15:05.200 Baby Girl, as she is known, is heartbreaking. No one 0:15:05.240 --> 0:15:09.000 disputes that she was sublimely happy with her adoptive parents, 0:15:09.400 --> 0:15:12.720 and videos of her with her father, now married, seemed 0:15:12.720 --> 0:15:14.760 to show a little girl equally happy. 0:15:15.280 --> 0:15:20.320 In the end, Baby Girl's father and Cherokee Nation lost. 0:15:21.280 --> 0:15:23.520 So it was a lose in this case, but it 0:15:23.560 --> 0:15:27.320 was very narrow and it very much preserved EQUA. 0:15:27.920 --> 0:15:32.960 The Supreme Court didn't declare the Indian Child Welfare Act unconstitutional. 0:15:33.440 --> 0:15:37.360 They just said it shouldn't apply to this case. But 0:15:37.760 --> 0:15:40.360 in the way they wordered their opinion, they showed a 0:15:40.360 --> 0:15:44.520 lot of sympathy for Clement's ideas about race and biology. 0:15:45.040 --> 0:15:49.320 The Baby Girl case was blood in the water before it, 0:15:49.480 --> 0:15:53.600 the constitutionality of IQUA was rarely challenged. In the eight 0:15:53.640 --> 0:15:56.880 years since, more than a dozen cases have been brought. 0:15:57.400 --> 0:16:00.520 Emotions run high as a local family fight to keep 0:16:00.560 --> 0:16:02.360 their foster daughter after authority. 0:16:02.600 --> 0:16:05.720 Most of those cases got thrown out, but that didn't 0:16:05.720 --> 0:16:09.560 matter because as soon as one failed, two or three 0:16:09.680 --> 0:16:13.280 more were waiting in the wings, and they all argued 0:16:13.320 --> 0:16:15.520 IQUA was racial discrimination. 0:16:16.120 --> 0:16:19.280 A California family was left railing when their six year 0:16:19.280 --> 0:16:22.440 old foster daughter was removed from their home. I'll do 0:16:22.520 --> 0:16:25.360 to the enforcement of a controversial law that says, because 0:16:25.360 --> 0:16:28.400 of her Native American blood, she must be placed with 0:16:28.480 --> 0:16:31.920 relatives who happened to live hundreds of miles away. 0:16:32.400 --> 0:16:35.560 In the United States, there are two corporate law firms 0:16:35.600 --> 0:16:40.360 that represent the oil industry more than anyone else. One 0:16:40.400 --> 0:16:44.280 of those firms doesn't just represent companies like Chevron. They 0:16:44.320 --> 0:16:49.520 work for every corner of the industry, pipelines, trade organizations, 0:16:49.680 --> 0:16:51.320 lobbying groups, you name it. 0:16:51.880 --> 0:16:54.400 And that firm is now representing the. 0:16:54.320 --> 0:16:57.240 Brakeens in their big federal lawsuit. 0:16:58.320 --> 0:17:00.120 That story after the break. 0:17:06.480 --> 0:17:09.919 Casinos aren't the only corporations that would make more money 0:17:10.040 --> 0:17:11.800 if tribal sovereignty went away. 0:17:12.560 --> 0:17:14.560 Any of the other kind of areas of Indian law 0:17:14.560 --> 0:17:18.080 that you're talking about that are big nationwide issues, land use, 0:17:18.160 --> 0:17:22.120 water rights, gaming, those there's big, big money involved in that. 0:17:22.680 --> 0:17:24.639 When NIMO says big money. 0:17:24.880 --> 0:17:28.080 She means half of all gaming revenue in the United 0:17:28.119 --> 0:17:33.280 States and tribal land. Tribes have jurisdiction of about two 0:17:33.400 --> 0:17:36.800 percent of all land in the United States, but that 0:17:36.920 --> 0:17:40.359 land holds about a third of all fossil fuel resources 0:17:40.480 --> 0:17:45.200 in the country, like coal, natural gas, and oil, worth 0:17:45.240 --> 0:17:48.080 around one point five trillion dollars. 0:17:48.640 --> 0:17:52.760 When you're not associated with a tribe in that industry, 0:17:53.080 --> 0:17:55.720 you often are at all as with tribal interests. 0:17:56.320 --> 0:17:59.920 Matthew McGill, the lawyer representing the Brakeenes in that. 0:18:00.080 --> 0:18:02.520 Big federal lawsuit, has used the. 0:18:02.480 --> 0:18:06.600 Same arguments in casino cases that he's now using in 0:18:06.720 --> 0:18:11.040 equa cases. Specifically that states rights argument we talked about 0:18:11.080 --> 0:18:14.240 earlier in the season. He's used it to stop a 0:18:14.280 --> 0:18:18.920 tribal casino from opening in Arizona and Gibson Done, where 0:18:18.960 --> 0:18:23.440 Matthew McGill works, represents two of the top three casino 0:18:23.560 --> 0:18:28.560 and gaming companies in the world. Gibson Dunn also specializes 0:18:28.800 --> 0:18:31.919 in the other industry that comes up against tribes, a 0:18:31.960 --> 0:18:36.680 lot oil. You've probably heard about the fight over the 0:18:36.760 --> 0:18:41.320 Dakota Access pipeline because the resistance camp at Standing Rock 0:18:41.520 --> 0:18:47.800 made national headlines Gibson Done represented the pipeline company. 0:18:48.720 --> 0:18:50.520 What happened at Standing. 0:18:50.160 --> 0:18:55.800 Rock worried the oil industry. One study estimated indigenous resistance 0:18:56.080 --> 0:19:01.639 costs the Dakota Access pipeline seven point five billion dollars. 0:19:02.080 --> 0:19:07.359 It also inspired movements against other pipelines. Industry leaders, including 0:19:07.440 --> 0:19:12.280 lobbying groups that represent Gibson dun clients, have talked openly 0:19:12.480 --> 0:19:16.800 about why these indigenous led protests need to be staffed. 0:19:17.600 --> 0:19:21.560 Seven months after the resistance camp in North Dakota was 0:19:21.640 --> 0:19:27.200 shut down, Gibson Dun filed the Brackens case in federal court. 0:19:31.200 --> 0:19:35.280 Matthew McGill that lawyer at Gibson dun is currently working 0:19:35.400 --> 0:19:39.040 on three challenges to IQUA that we know of, and 0:19:39.160 --> 0:19:42.800 one of those cases shocked me. It's a case in 0:19:42.880 --> 0:19:46.160 Missouri that I'm not supposed to know about because it's 0:19:46.200 --> 0:19:52.160 still in family court. Working alongside McGill is Paul Clement. 0:19:52.840 --> 0:19:55.920 Paul Clement showing up in family court is like the 0:19:55.960 --> 0:19:59.240 head of cardiology at Harvard popping up to take your 0:19:59.240 --> 0:20:05.200 blood pressure. It's extraordinary. And here's the thing about these lawsuits. 0:20:05.720 --> 0:20:09.359 It only takes one case to topple IQUA and all 0:20:09.520 --> 0:20:13.360 the dominoes that come after. And because the people mounting 0:20:13.480 --> 0:20:17.000 challenges to Iqua have so much money, they can bring 0:20:17.240 --> 0:20:18.280 as many. 0:20:18.080 --> 0:20:19.840 Cases as it takes. 0:20:20.920 --> 0:20:24.200 The day after Talia's tribe got that call from the Interior, 0:20:24.600 --> 0:20:27.600 Talia went for a walk. She needed to clear her head. 0:20:28.080 --> 0:20:30.360 She was headed down the main street in town when 0:20:30.359 --> 0:20:33.359 she saw her cousin playing outside with our kids. 0:20:33.720 --> 0:20:36.040 She stops us and we just start talking about everything 0:20:36.040 --> 0:20:39.000 that was happening, and we just started like brainstorming and 0:20:39.119 --> 0:20:42.560 just kind of like feeling and feeling what that meant, 0:20:42.560 --> 0:20:46.159 what that felt like to have land underneath you and 0:20:46.200 --> 0:20:48.800 then kind of take it, have it taken away within 0:20:49.160 --> 0:20:50.520 the matter of like seconds. 0:20:50.520 --> 0:20:54.520 It seemed what made the whole thing harder was COVID. 0:20:55.200 --> 0:20:58.159 In normal times, they would have all gotten together, but 0:20:58.240 --> 0:20:59.800 they couldn't do that now. 0:21:00.119 --> 0:21:02.040 And so we just thought, like what can we do, 0:21:02.520 --> 0:21:05.560 and so we thought of the spirit fire protest, and 0:21:06.560 --> 0:21:10.840 we initiated it and said, you know, ask supporters asked 0:21:10.840 --> 0:21:14.520 the public just to light a fire or any sort 0:21:14.560 --> 0:21:17.800 of fire or flame, you know, a candle fire outside anything. 0:21:18.280 --> 0:21:21.840 The day before the court date was just to support 0:21:21.840 --> 0:21:24.680 the decision makers that they'll see the truth and what's 0:21:24.760 --> 0:21:28.600 right and what's moral and you know, like what is meant. 0:21:28.359 --> 0:21:31.719 To be the match Biewampanogh took the Department of the 0:21:31.760 --> 0:21:34.760 Interior back to court. 0:21:34.280 --> 0:21:37.040 And it was just astounding the amount of support that 0:21:37.080 --> 0:21:40.120 we received and a lot of people kept their fires 0:21:40.160 --> 0:21:44.560 going until we received our decision. Was it was just amazing, 0:21:44.600 --> 0:21:46.919 and honestly, if you ask me, I think it worked. 0:21:47.080 --> 0:21:50.679 I think our spiritual ceremony and our protests in that 0:21:50.760 --> 0:21:55.240 way helped and actually was one of the main reasons 0:21:55.280 --> 0:21:58.560 why we were able to get such a quick response 0:21:58.640 --> 0:22:01.199 in such a positive one when we were getting negative 0:22:01.200 --> 0:22:03.960 ones after negative after negative in the lower courts. 0:22:04.440 --> 0:22:07.679 A federal court ordered the Department of the Interior to 0:22:07.760 --> 0:22:13.600 reverse its decision. The mashb Wampanog reservation remained intact. That 0:22:13.720 --> 0:22:17.000 casino developer dropped his effort to open a casino in 0:22:17.040 --> 0:22:22.320 Massachusetts years ago. Actually, he and Paul Clement weren't even 0:22:22.400 --> 0:22:26.480 around when the mash Bee almost lost their reservation. The 0:22:26.520 --> 0:22:30.480 mashbe Wampanog story shows just how fragile tribal land and 0:22:30.520 --> 0:22:34.840 treaty rights are. Indigenous nations that have existed since the 0:22:34.920 --> 0:22:39.000 beginning of time have watched the ground underneath them change 0:22:39.040 --> 0:22:42.400 with one court decision or the whims of one administration. 0:22:44.520 --> 0:22:48.640 That's why the Bracken's case is scary. If the Supreme 0:22:48.680 --> 0:22:52.280 Court decides that the Brakenes, or the Cliffords or the 0:22:52.320 --> 0:22:57.080 Foster Children were discriminated against based on race, it could 0:22:57.119 --> 0:23:01.840 set off a chain reaction, one that impact the constitutionality 0:23:02.200 --> 0:23:09.600 of tribal land, police, health services, gaming, even tribal governments. Sure, 0:23:09.720 --> 0:23:13.080 we could still have powows and museums, but we would 0:23:13.080 --> 0:23:17.040 no longer be able to govern ourselves. We'd be just 0:23:17.160 --> 0:23:24.960 another group of people. I wasn't surprised to find the 0:23:25.000 --> 0:23:29.399 attack on Iqua is really about tribal sovereignty. What I 0:23:29.560 --> 0:23:33.280 didn't expect to find was that this attack on tribes 0:23:33.680 --> 0:23:43.200 is just part of a bigger agenda next time on 0:23:43.200 --> 0:23:47.520 this land. They've also come to federal Indian law because 0:23:47.680 --> 0:23:51.080 it does lack of visibility and people don't realize the 0:23:51.119 --> 0:23:52.680 amount of damage that it can do. 0:23:53.560 --> 0:23:57.440 Right now, government discriminates against both blacks and whites, depending 0:23:57.480 --> 0:24:00.320 on depending upon the particular issue. 0:24:00.359 --> 0:24:03.520 Likes endpoint like, Oh, if they defeat Iqua, then that's 0:24:03.520 --> 0:24:04.400 what they're looking for. 0:24:04.880 --> 0:24:07.560 No, it's not about equa that's just one stuff on 0:24:07.640 --> 0:24:08.280 this path. 0:24:22.920 --> 0:24:27.359 Heyay y'all. 0:24:27.840 --> 0:24:28.040 Hey. 0:24:32.400 --> 0:24:36.040 This Land is reported, written and hosted by me Rebecca 0:24:36.119 --> 0:24:43.160 Nagle Goheen, citizen of Cherokee Nation. Additional reporting this season 0:24:43.359 --> 0:24:47.639 from Maddie Stone, Martha Troyan, citizen of Obie Chika, kan 0:24:47.880 --> 0:24:51.520 lack Suel First Nation, and Amy Westervelt. 0:24:50.920 --> 0:24:51.879 From Cricket Media. 0:24:52.080 --> 0:24:57.280 Our executive producers are John Favreau, Sarah geismer Lyra Smith, 0:24:57.520 --> 0:25:01.680 and Katie Long, with special things to Allison Falsetta from 0:25:01.680 --> 0:25:06.440 Critical Frequency. Our managing producer is Amy Westervelt. Our senior 0:25:06.480 --> 0:25:10.600 producer is Sarah Ventry, and our story editor is Raca Murphy. 0:25:11.000 --> 0:25:14.920 Additional editing for Martha Troyan and Polly Dennette Claw, who 0:25:15.000 --> 0:25:19.920 is Dney. Sound design by Lyra Smith, Mark Bush and Charlotte. 0:25:20.000 --> 0:25:25.280 Landis original score composed by Jared Tate, citizen of Chickistan Nation. 0:25:25.880 --> 0:25:29.479 Our outra song is an honor song for adoptees, written 0:25:29.560 --> 0:25:32.680 and sung by Jerry Dearley, who is Oglala Lakota. 0:25:33.160 --> 0:25:34.920 Our fact checker is wood An Yan. 0:25:35.280 --> 0:25:38.439 Our First Amendment Attorney is James Wheaton, founder of the 0:25:38.480 --> 0:25:42.919 First Amendment Project podcast. Art by Kelly Gonzalez, citizen of 0:25:43.040 --> 0:25:48.120 Cherokee Nation. Additional editing this episode by Savannah Marr, citizen 0:25:48.240 --> 0:25:51.800