1 00:00:01,200 --> 00:00:04,480 Speaker 1: Last Thursday, at nine am Central Standard time, I sat 2 00:00:04,519 --> 00:00:07,120 Speaker 1: down at my computer with my browser open. I was 3 00:00:07,200 --> 00:00:10,440 Speaker 1: waiting for the decision in Holland v. Brackeen to drop. 4 00:00:11,680 --> 00:00:14,000 Speaker 1: There are a bunch of days, mostly in June, the 5 00:00:14,040 --> 00:00:18,000 Speaker 1: Supreme Court issues opinions. You don't know which day which 6 00:00:18,079 --> 00:00:20,960 Speaker 1: opinion will come out, And till it's out, the first 7 00:00:21,040 --> 00:00:26,119 Speaker 1: opinion posted, it wasn't Bracken. But then okay, Holland v. 8 00:00:26,280 --> 00:00:33,760 Speaker 1: Brakeen is out. My chest flooded with stress, and it's. 9 00:00:33,560 --> 00:00:36,640 Speaker 2: By justice spirit, which is actually. 10 00:00:38,000 --> 00:00:43,199 Speaker 1: Possibly good, that's possibly really good. I started hitting refreshed 11 00:00:43,200 --> 00:00:46,280 Speaker 1: on the Supreme Court's opinion page, and tell a link 12 00:00:46,320 --> 00:00:49,280 Speaker 1: popped up. Here's the opinion, here's the opinion. I clicked 13 00:00:49,320 --> 00:00:54,640 Speaker 1: on it and started reading this case about children, how 14 00:00:54,640 --> 00:00:58,760 Speaker 1: among the most one. Once I saw Barrett's name on 15 00:00:58,800 --> 00:01:03,240 Speaker 1: the majority opinion, I thought we had probably avoided catastrophe. 16 00:01:03,920 --> 00:01:07,840 Speaker 1: But I still assumed at least something, some part of 17 00:01:07,880 --> 00:01:11,560 Speaker 1: the Indian Child Welfare Act had been struck down. There 18 00:01:11,640 --> 00:01:15,560 Speaker 1: was never a time I thought the plaintiffs would lose completely. 19 00:01:16,400 --> 00:01:21,600 Speaker 1: But then, oh my god, I cannot I can't believe it. 20 00:01:21,840 --> 00:01:24,720 Speaker 1: I can't believe it. This is not what I was expecting. 21 00:01:24,920 --> 00:01:26,440 Speaker 3: That is so awesome. 22 00:01:27,120 --> 00:01:34,120 Speaker 1: That is so awesome, That is so awesome. In this episode, 23 00:01:34,240 --> 00:01:36,479 Speaker 1: I'm going to walk you through what the opinion said 24 00:01:36,560 --> 00:01:39,920 Speaker 1: and what it means for Native families and tribes. But 25 00:01:40,080 --> 00:01:44,040 Speaker 1: first I have to take you back to a cold 26 00:01:44,240 --> 00:01:51,040 Speaker 1: day last fall. On the morning of Wednesday, November ninth, 27 00:01:51,120 --> 00:01:53,720 Speaker 1: I woke up at five am in the dark. I 28 00:01:53,760 --> 00:01:57,320 Speaker 1: got dressed, checked the batteries in my recorder, called an uber, 29 00:01:57,520 --> 00:02:01,080 Speaker 1: and ignored the knot in my stomach. That day, the 30 00:02:01,120 --> 00:02:05,240 Speaker 1: Supreme Court was scheduled to hear arguments in Holland v. Bracken. 31 00:02:05,840 --> 00:02:08,440 Speaker 1: When I got to the court, it was still dim 32 00:02:08,480 --> 00:02:11,680 Speaker 1: and cold outside, but the line to get in was 33 00:02:11,720 --> 00:02:14,520 Speaker 1: already long. What time did you get in line this morning? 34 00:02:15,040 --> 00:02:17,000 Speaker 4: We were here at about four forty five. 35 00:02:17,360 --> 00:02:20,440 Speaker 1: Members of the public can watch oral arguments at the 36 00:02:20,440 --> 00:02:23,840 Speaker 1: Supreme Court, but they can't reserve a seat. To get in. 37 00:02:24,000 --> 00:02:27,600 Speaker 1: You have to stand in line for hours, wrapping around 38 00:02:27,600 --> 00:02:30,600 Speaker 1: the corner of the white marble building, people huddled in 39 00:02:30,639 --> 00:02:31,079 Speaker 1: the cold. 40 00:02:31,280 --> 00:02:33,639 Speaker 4: My name is Dan Levernce. I'm a member of the 41 00:02:33,680 --> 00:02:36,000 Speaker 4: Iowa Tribe of Kansas and Nebraska. 42 00:02:35,639 --> 00:02:36,880 Speaker 1: Oh Weniki secon in Tesau. 43 00:02:36,960 --> 00:02:39,880 Speaker 2: Samantha Maltese new to mas Akunahanna its nim wampanax So. 44 00:02:39,919 --> 00:02:41,040 Speaker 1: My name is Samantha Maltese. 45 00:02:41,040 --> 00:02:42,960 Speaker 2: I'm a member of the Wampanoag travela Quina. 46 00:02:43,080 --> 00:02:45,160 Speaker 5: My name is Vernon ba Beta. I'm the governor for 47 00:02:45,200 --> 00:02:47,600 Speaker 5: the Publo of Aslada. We traveled from New Mexico. 48 00:02:47,639 --> 00:02:50,040 Speaker 1: My name is Kimmy Wind Hemmingbird, and I'm Muscogee Creek. 49 00:02:50,080 --> 00:02:51,000 Speaker 1: I came from Oklahoma. 50 00:02:51,080 --> 00:02:53,919 Speaker 6: Today, my name is Fawn Sharp. I serve as President 51 00:02:54,000 --> 00:02:56,840 Speaker 6: of the National Congress of American Indians and Vice President 52 00:02:56,880 --> 00:02:57,919 Speaker 6: of the Quornall Indian Nation. 53 00:02:58,720 --> 00:03:00,560 Speaker 1: When I ask people why they try travel to the 54 00:03:00,600 --> 00:03:04,680 Speaker 1: Supreme Court that day, many had personal stories, like Fawn Sharp, 55 00:03:04,880 --> 00:03:07,760 Speaker 1: who tried to adopt Native siblings but was turned down 56 00:03:07,760 --> 00:03:09,280 Speaker 1: at first for a white family. 57 00:03:09,440 --> 00:03:12,240 Speaker 6: I had to go through two levels of appeal. They 58 00:03:12,240 --> 00:03:14,280 Speaker 6: didn't think it was in the best interests of my 59 00:03:14,440 --> 00:03:17,680 Speaker 6: children to be placed in a home on an Indian reservation. 60 00:03:18,320 --> 00:03:21,440 Speaker 6: They would prefer them to be in Suburbia and Salem, Oregon, 61 00:03:21,520 --> 00:03:23,040 Speaker 6: and that that was in their best interest. 62 00:03:23,320 --> 00:03:26,480 Speaker 1: People also told me about how the Indian Child Welfare 63 00:03:26,520 --> 00:03:30,160 Speaker 1: Act or IQUA for short, kept their family together. 64 00:03:30,919 --> 00:03:32,600 Speaker 7: I entered care when I was nine, and I was 65 00:03:32,680 --> 00:03:34,600 Speaker 7: placed with my maternal aunt. 66 00:03:34,960 --> 00:03:39,960 Speaker 1: And to you, what's at steak in this case? Everything? 67 00:03:40,040 --> 00:03:42,040 Speaker 7: Every child deserves to have the same feature that I 68 00:03:42,080 --> 00:03:43,120 Speaker 7: get to live every day. 69 00:03:43,600 --> 00:03:47,000 Speaker 1: I asked that question to a bunch of people, and 70 00:03:47,040 --> 00:03:50,040 Speaker 1: I kept hearing the same answer. What's at steak for you? 71 00:03:50,080 --> 00:03:53,880 Speaker 1: In this case? Everything? Everything's at steak. 72 00:03:53,640 --> 00:03:57,680 Speaker 8: For us, everything's at stake trivel sovereignty at the bottom line, 73 00:03:57,760 --> 00:03:58,680 Speaker 8: tribal sovereignty. 74 00:03:58,760 --> 00:04:00,640 Speaker 9: When we talk about our youth, were talking about the 75 00:04:00,640 --> 00:04:01,840 Speaker 9: future of our tribal community. 76 00:04:02,120 --> 00:04:06,120 Speaker 4: The stakes are literally incalculable. This is not a case 77 00:04:06,320 --> 00:04:08,600 Speaker 4: about winning for the other side. It is a case 78 00:04:08,640 --> 00:04:10,160 Speaker 4: about burning the world down. 79 00:04:10,680 --> 00:04:14,200 Speaker 1: How does it feel to know that the future of 80 00:04:14,240 --> 00:04:16,360 Speaker 1: federal Indian law is up to these nine people? 81 00:04:17,760 --> 00:04:20,000 Speaker 3: Feels wrong and kind of terrifying. 82 00:04:31,480 --> 00:04:34,920 Speaker 1: You're listening to This Land, a podcast about the present 83 00:04:34,960 --> 00:04:39,000 Speaker 1: day struggle for Native rights from Crooked Media. I'm your host, 84 00:04:39,160 --> 00:04:44,760 Speaker 1: Rebecca Nagle Goheen Dadon de Lacayetrique, la citizen of Cherokee Nation. 85 00:04:45,720 --> 00:04:48,400 Speaker 1: In season two, we followed how a string of custody 86 00:04:48,440 --> 00:04:52,719 Speaker 1: battles over Native children turned into a federal lawsuit threatening 87 00:04:52,760 --> 00:04:57,880 Speaker 1: everything from tribal sovereignty to civil rights. In today's bonus episode, 88 00:04:57,920 --> 00:05:01,960 Speaker 1: we're bringing you the Supreme Courts Ultimate Decision and the 89 00:05:02,000 --> 00:05:13,200 Speaker 1: story of how it happened. IQUA was passed in nineteen 90 00:05:13,279 --> 00:05:16,800 Speaker 1: seventy eight after Congress recognized between a quarter and a 91 00:05:16,839 --> 00:05:20,080 Speaker 1: third of all Native kids had been removed from their 92 00:05:20,080 --> 00:05:23,840 Speaker 1: families and tribes. The law is meant to prevent family 93 00:05:23,920 --> 00:05:29,840 Speaker 1: separation in Native communities, but recently IQUA became a target 94 00:05:30,400 --> 00:05:35,320 Speaker 1: an odd group of special interests, including adoption attorneys, corporate lawyers, 95 00:05:35,440 --> 00:05:39,920 Speaker 1: and right wing groups, decided they wanted to strike IQUA down. 96 00:05:40,560 --> 00:05:43,560 Speaker 1: In the last decade, the law has been challenged nearly 97 00:05:43,640 --> 00:05:50,600 Speaker 1: as many times as the Affordable Care Act. This particular 98 00:05:50,680 --> 00:05:54,000 Speaker 1: lawsuit started when that group of special interests found a 99 00:05:54,000 --> 00:05:58,680 Speaker 1: white evangelical couple living in the suburbs of Dallas. That couple, 100 00:05:59,000 --> 00:06:02,200 Speaker 1: Chad and Jennifer breg Keen, wanted to adopt a Native 101 00:06:02,279 --> 00:06:06,960 Speaker 1: American toddler, but the child's tribe found a Navajo home, 102 00:06:07,240 --> 00:06:10,320 Speaker 1: and according to IQUA, that home was where the kid 103 00:06:10,360 --> 00:06:14,360 Speaker 1: should go. Along with the state of Texas, the Brackens 104 00:06:14,440 --> 00:06:18,720 Speaker 1: sued the federal government, saying IQUA is unconstitutional because. 105 00:06:18,720 --> 00:06:23,200 Speaker 3: The indianel Welfare Act discriminates against non Indians on the 106 00:06:23,200 --> 00:06:24,040 Speaker 3: basis of race. 107 00:06:24,520 --> 00:06:28,000 Speaker 1: This is Matthew Fletcher, law professor and citizen of Grand 108 00:06:28,000 --> 00:06:31,240 Speaker 1: Traverse Band of Ottawa and Chippewa Indians. You heard his 109 00:06:31,320 --> 00:06:34,719 Speaker 1: voice earlier. He was also at the Supreme Court that day. 110 00:06:34,680 --> 00:06:36,480 Speaker 3: Waiting in line fun times. 111 00:06:37,160 --> 00:06:40,679 Speaker 1: As we've discussed on the podcast before, the normal rule 112 00:06:40,720 --> 00:06:44,000 Speaker 1: that US laws can't treat people differently based on race 113 00:06:44,279 --> 00:06:48,400 Speaker 1: doesn't apply to tribes and tribal citizens. That's because Native 114 00:06:48,480 --> 00:06:50,719 Speaker 1: nations are political, not racial groups. 115 00:06:50,960 --> 00:06:54,840 Speaker 3: Lots of statutes, going back to the very first Indian 116 00:06:54,920 --> 00:06:58,640 Speaker 3: statute of all time seventeen ninety, we'll say things like 117 00:06:58,800 --> 00:07:02,960 Speaker 3: this statute applies to Indians, so it would be really 118 00:07:03,560 --> 00:07:07,240 Speaker 3: disruptive to the point of catastrophe to say that a 119 00:07:07,279 --> 00:07:11,800 Speaker 3: statute that applies to Indians it is unconstitutional. 120 00:07:13,080 --> 00:07:16,520 Speaker 1: Two other couples joined the Brakkeenes lawsuit. They all say 121 00:07:16,520 --> 00:07:19,920 Speaker 1: IQUA discriminated against them because it wouldn't let them adopt 122 00:07:20,040 --> 00:07:24,600 Speaker 1: Native kids. Here's what's wild about that claim. Except for 123 00:07:24,680 --> 00:07:28,760 Speaker 1: one case, all the foster parents actually got custody over 124 00:07:28,880 --> 00:07:32,960 Speaker 1: Native relatives who also wanted to raise the kids, those 125 00:07:33,040 --> 00:07:36,840 Speaker 1: foster parents and Texas had more than one reason they 126 00:07:36,840 --> 00:07:41,640 Speaker 1: said IQUA was unconstitutional. Their second big argument was that 127 00:07:41,760 --> 00:07:45,160 Speaker 1: Congress it doesn't have the authority to pass a law 128 00:07:45,320 --> 00:07:49,400 Speaker 1: like IQUA in the first place. But Matthew Fletcher says. 129 00:07:49,400 --> 00:07:52,800 Speaker 3: What that misses, of course, is that Congress can deal 130 00:07:52,840 --> 00:07:57,320 Speaker 3: with Indian child welfare because of the special relationship that 131 00:07:57,400 --> 00:08:01,160 Speaker 3: tribes in the United States have in Indian affairs, there 132 00:08:01,240 --> 00:08:02,720 Speaker 3: really are no states rights. 133 00:08:03,720 --> 00:08:06,760 Speaker 1: Their third argument is more narrow than the first two. 134 00:08:07,320 --> 00:08:12,200 Speaker 1: It's called anti commondeering. That's a legal theory that basically 135 00:08:12,240 --> 00:08:15,280 Speaker 1: says the federal government can't tell states they have to 136 00:08:15,400 --> 00:08:20,200 Speaker 1: enforce federal laws. So when tribal leaders and advocates say 137 00:08:20,320 --> 00:08:24,200 Speaker 1: the stakes are everything, everything's a steak for us. That's 138 00:08:24,240 --> 00:08:28,680 Speaker 1: because those legal theories strike at the foundation of tribal sovereignty. 139 00:08:29,160 --> 00:08:32,520 Speaker 1: If IQUA can't treat Native Americans differently based on Greece, 140 00:08:32,920 --> 00:08:35,480 Speaker 1: what about the clinic where I get my healthcare? What 141 00:08:35,559 --> 00:08:39,360 Speaker 1: about tribal casinos that operate where non native companies can't. 142 00:08:39,760 --> 00:08:43,760 Speaker 1: If Congress doesn't have the constitutional power to protect Native kids, 143 00:08:44,240 --> 00:08:47,960 Speaker 1: does Congress have the power to protect our land, our water, 144 00:08:48,320 --> 00:08:51,880 Speaker 1: our way of life. The fear is that this case 145 00:08:52,080 --> 00:08:55,400 Speaker 1: is like the first upright domino in a long row. 146 00:08:55,920 --> 00:08:59,120 Speaker 1: If they can topple Iqua, they can topple everything else. 147 00:09:01,320 --> 00:09:04,400 Speaker 1: There is growing evidence that the special interests behind this 148 00:09:04,559 --> 00:09:08,400 Speaker 1: lawsuit see it that way too. After our reporting connected 149 00:09:08,440 --> 00:09:11,679 Speaker 1: the dots between the Brakeens pro bono corporate lawyer and 150 00:09:11,760 --> 00:09:16,520 Speaker 1: the casino industry, he helped file a second lawsuit. In 151 00:09:16,520 --> 00:09:19,720 Speaker 1: that case, he claimed tribal gaming in the state of 152 00:09:19,920 --> 00:09:26,120 Speaker 1: Washington was unconstitutional racial discrimination because tribes can operate casinos 153 00:09:26,200 --> 00:09:30,360 Speaker 1: where his client can't. The alleged harm in this case 154 00:09:30,520 --> 00:09:37,760 Speaker 1: is more straightforward than Bracken. It's money. All of this 155 00:09:37,960 --> 00:09:40,360 Speaker 1: was on my mind when I walked into the Supreme 156 00:09:40,400 --> 00:09:44,080 Speaker 1: Court last November. After checking in at the Public Information 157 00:09:44,200 --> 00:09:47,560 Speaker 1: Office and going through security twice, I was led into 158 00:09:47,640 --> 00:09:51,200 Speaker 1: the courtroom. I had never been inside before. I was 159 00:09:51,240 --> 00:09:55,360 Speaker 1: surprised by how small it was. The little room was 160 00:09:55,360 --> 00:10:00,600 Speaker 1: still grandiose. Large white marble pillars surrounded our chairs. On 161 00:10:00,679 --> 00:10:04,040 Speaker 1: the far end of the room was a tall red curtain. 162 00:10:04,559 --> 00:10:08,360 Speaker 1: It stretched from the floor to the ceiling without making 163 00:10:08,440 --> 00:10:12,640 Speaker 1: a noise. The fabric parted when the justices entered the room. 164 00:10:13,120 --> 00:10:15,400 Speaker 10: We will hear argument this morning in case twenty one 165 00:10:15,520 --> 00:10:20,240 Speaker 10: three seventy six Holland versus Bracken and the consolidated cases. 166 00:10:20,880 --> 00:10:24,880 Speaker 1: The first lawyer to speak was Matthew McGill from Gibson Dunn. 167 00:10:25,280 --> 00:10:28,520 Speaker 1: He represents the foster parents, including the Brackens. 168 00:10:28,880 --> 00:10:31,160 Speaker 10: Thank you, mister Chief Justice, and may it please the 169 00:10:31,200 --> 00:10:34,560 Speaker 10: court this is happening now for a second time to 170 00:10:34,600 --> 00:10:38,000 Speaker 10: the Brackens as they try to adopt YRJ, who is 171 00:10:38,040 --> 00:10:41,640 Speaker 10: now four and a half years old. Not even Yrj's 172 00:10:41,720 --> 00:10:44,520 Speaker 10: deep attachment to the Brakeens after being part of their 173 00:10:44,840 --> 00:10:47,199 Speaker 10: family for four years, is sufficient. 174 00:10:48,040 --> 00:10:51,040 Speaker 1: But McGill was quickly interrupted, what do we do about 175 00:10:51,080 --> 00:10:56,240 Speaker 1: your standing problem? That's Justice Neil Gorsich asking about standing. 176 00:10:56,600 --> 00:10:59,120 Speaker 1: Standing is a legal term that means you have the 177 00:10:59,200 --> 00:11:00,920 Speaker 1: right to fight a lawsuit. 178 00:11:01,240 --> 00:11:05,320 Speaker 5: You've sued federal officials, not the state courts who actually 179 00:11:05,360 --> 00:11:06,880 Speaker 5: are passed with operating. 180 00:11:07,600 --> 00:11:11,840 Speaker 10: I think my answer to that justice course, which starts 181 00:11:11,840 --> 00:11:16,920 Speaker 10: with the traceability standard, which is de facto causation, and 182 00:11:16,920 --> 00:11:17,520 Speaker 10: then I would. 183 00:11:17,320 --> 00:11:20,400 Speaker 5: Say federal official can dictate to a state family court 184 00:11:20,480 --> 00:11:20,960 Speaker 5: what to do? 185 00:11:21,080 --> 00:11:25,320 Speaker 10: Kenny, I'm sorry I did not hear the question. 186 00:11:25,400 --> 00:11:28,640 Speaker 5: Can any federal official that you sued, tell a state 187 00:11:28,720 --> 00:11:30,280 Speaker 5: court what to do. 188 00:11:31,880 --> 00:11:32,720 Speaker 4: No, you're on okay. 189 00:11:32,760 --> 00:11:34,120 Speaker 5: I would think that might be the end of it. 190 00:11:34,160 --> 00:11:34,960 Speaker 5: What am I missing? 191 00:11:35,360 --> 00:11:38,920 Speaker 1: If the plaintiffs don't have standing, the whole thing goes away. 192 00:11:39,240 --> 00:11:42,200 Speaker 1: You can't sue the federal government just because you don't 193 00:11:42,280 --> 00:11:44,480 Speaker 1: like a law. You have to prove that that law 194 00:11:44,600 --> 00:11:47,880 Speaker 1: harmed you and that a court ruling in your favor 195 00:11:48,160 --> 00:11:51,640 Speaker 1: fixes that harm. As we've talked about on this podcast 196 00:11:52,320 --> 00:11:55,880 Speaker 1: a lot, there are big reasons to question the standing 197 00:11:55,920 --> 00:11:58,880 Speaker 1: in this case. Other justices joined in. 198 00:11:59,160 --> 00:12:01,600 Speaker 8: I'm going to list the series of statutes, and I 199 00:12:01,679 --> 00:12:02,559 Speaker 8: just wanted yes or no. 200 00:12:03,080 --> 00:12:06,760 Speaker 1: Soda Mayor had a very specific point she wanted to make, 201 00:12:07,040 --> 00:12:08,959 Speaker 1: and she had a clever way of getting at it. 202 00:12:09,120 --> 00:12:13,880 Speaker 8: The statue protecting service members from default judgments. Does Congress 203 00:12:13,920 --> 00:12:17,200 Speaker 8: have the power to pass them? The seventeen ninety nine 204 00:12:17,360 --> 00:12:21,120 Speaker 8: Trade and Intercourse. How about a law from eighteen eighty 205 00:12:21,120 --> 00:12:25,160 Speaker 8: eight setting forth certain evidence that an Indian woman could 206 00:12:25,280 --> 00:12:28,560 Speaker 8: use in state court to prove that there was a 207 00:12:28,559 --> 00:12:29,760 Speaker 8: common law marriage. 208 00:12:30,559 --> 00:12:33,280 Speaker 2: It's that it would be an anti commendeering violation. 209 00:12:33,760 --> 00:12:37,400 Speaker 1: That was the lawyer representing Texas. He told Sodomaiyor that 210 00:12:37,520 --> 00:12:41,320 Speaker 1: many of the statutes she listed were unconstitutional. 211 00:12:41,600 --> 00:12:45,839 Speaker 3: What that did was helped I identify and reinforced to. 212 00:12:45,840 --> 00:12:48,119 Speaker 1: The court Matthew Fletcher again. 213 00:12:48,200 --> 00:12:52,560 Speaker 3: That even a narrow opinion in this case striking down 214 00:12:52,679 --> 00:12:56,080 Speaker 3: some or parts of the Indian Cil Welfare Act has 215 00:12:56,640 --> 00:12:58,559 Speaker 3: vastly broader consequences. 216 00:12:59,040 --> 00:13:02,720 Speaker 1: Justices Kagan and Jackson also asked Texas and McGill some 217 00:13:02,840 --> 00:13:07,320 Speaker 1: tough questions. At this point, it looked like four justices 218 00:13:07,440 --> 00:13:12,080 Speaker 1: were skeptical that IQUA was unconstitutional, but the tribes needed 219 00:13:12,160 --> 00:13:12,960 Speaker 1: five to win. 220 00:13:13,679 --> 00:13:16,640 Speaker 3: I didn't say much more support other than those four 221 00:13:17,000 --> 00:13:17,960 Speaker 3: from the rest of the court. 222 00:13:18,160 --> 00:13:22,240 Speaker 11: Congress couldn't give a preference for white families for white children, 223 00:13:22,480 --> 00:13:25,600 Speaker 11: for Black families, for Black children, for Latino families, for 224 00:13:25,679 --> 00:13:28,480 Speaker 11: Latino children, for Asian families, for Asian children. 225 00:13:29,120 --> 00:13:32,000 Speaker 5: There's a limited number of vaccines. Can the federal government 226 00:13:32,120 --> 00:13:36,280 Speaker 5: decide to distribute those to Indians and not others? 227 00:13:36,880 --> 00:13:41,160 Speaker 1: That was Justice Kavanaugh and Chief Justice Roberts, along with Alito. 228 00:13:41,360 --> 00:13:45,240 Speaker 1: They kept framing the nation to nation relationship between tribes 229 00:13:45,240 --> 00:13:48,200 Speaker 1: and the federal government as some type of racial preference. 230 00:13:48,720 --> 00:13:54,200 Speaker 3: Justice Alito was just viciously mocking the whole enterprise throughout 231 00:13:54,240 --> 00:13:55,479 Speaker 3: the oral argument. 232 00:13:55,480 --> 00:14:01,680 Speaker 5: Before the arrival of Europeans, the tribes were at war 233 00:14:01,760 --> 00:14:02,360 Speaker 5: with each other. 234 00:14:02,920 --> 00:14:07,600 Speaker 1: That was Justice Alito stating incorrectly that native nations were 235 00:14:07,640 --> 00:14:11,800 Speaker 1: all at war with each other before Europeans arrived, as 236 00:14:11,800 --> 00:14:15,840 Speaker 1: if colonization and genocide brought peace to this continent. 237 00:14:16,600 --> 00:14:19,880 Speaker 3: We have to add Clarence Thomas to the Alito camp 238 00:14:19,920 --> 00:14:22,120 Speaker 3: because of things he's written over the years. 239 00:14:22,360 --> 00:14:25,440 Speaker 1: If you're keeping count, that is up to eight justices, 240 00:14:25,840 --> 00:14:29,120 Speaker 1: four who appeared to support IQUA and four who seemed 241 00:14:29,160 --> 00:14:32,640 Speaker 1: to be buying at least some of the petitioners claims. 242 00:14:32,640 --> 00:14:36,440 Speaker 3: And that sort of leaves Justice Cony Barrett. 243 00:14:36,400 --> 00:14:41,160 Speaker 1: Justice Amy Coney Barrett. She asked the same narrow question 244 00:14:41,600 --> 00:14:42,360 Speaker 1: four times. 245 00:14:42,600 --> 00:14:45,360 Speaker 12: So I want to focus just on the active efforts provision. 246 00:14:45,400 --> 00:14:47,760 Speaker 7: I want to take you back to the active efforts provision. 247 00:14:47,920 --> 00:14:50,680 Speaker 7: Is this the active efforts provision? I want to get 248 00:14:50,680 --> 00:14:52,440 Speaker 7: a grip on how this works. 249 00:14:52,920 --> 00:14:56,000 Speaker 1: Fletcher says we don't know a lot about Barrett's thinking 250 00:14:56,080 --> 00:14:59,440 Speaker 1: on tribal sovereignty because she doesn't have a long track record. 251 00:14:59,640 --> 00:15:02,720 Speaker 3: She's had a few cases and actually written an opinion 252 00:15:02,800 --> 00:15:07,000 Speaker 3: or two that aren't so bad. But she is a 253 00:15:08,320 --> 00:15:13,280 Speaker 3: very very conservative judge, and she seemed to be positioning 254 00:15:13,400 --> 00:15:15,320 Speaker 3: herself in the middle in this case. 255 00:15:15,720 --> 00:15:19,200 Speaker 1: I left oral arguments thinking Justice amy Cony Barrett was 256 00:15:19,240 --> 00:15:22,880 Speaker 1: the key vote. When it was finally over. 257 00:15:23,120 --> 00:15:23,880 Speaker 10: Thank you counsel. 258 00:15:24,080 --> 00:15:25,040 Speaker 11: The case is submitted. 259 00:15:25,600 --> 00:15:27,440 Speaker 1: We were ushered outside, you know. 260 00:15:27,520 --> 00:15:31,240 Speaker 3: We walked out of the Supreme Court building and it 261 00:15:31,320 --> 00:15:38,440 Speaker 3: was amazing to see hundreds of Native people standing outside 262 00:15:38,480 --> 00:15:43,520 Speaker 3: waiting for us. They were protesting, they were praying, they 263 00:15:43,520 --> 00:15:47,680 Speaker 3: were dancing and singing, and it showed to me that 264 00:15:48,000 --> 00:15:51,480 Speaker 3: this case really is critically important to Indian country. 265 00:15:51,800 --> 00:15:56,160 Speaker 1: Good afternoon, friends, relatives. First at the rally on the 266 00:15:56,200 --> 00:16:00,520 Speaker 1: steps of the Supreme Court, NCAI President Fawn Sharp addressed 267 00:16:00,560 --> 00:16:01,000 Speaker 1: the crowd. 268 00:16:01,200 --> 00:16:04,160 Speaker 13: But we know that no matter what they do, we 269 00:16:04,320 --> 00:16:07,280 Speaker 13: occupy a certain place in this life. 270 00:16:07,440 --> 00:16:08,440 Speaker 2: As Native people. 271 00:16:08,920 --> 00:16:12,360 Speaker 13: We occupy a position of inheriting all that our creator 272 00:16:12,480 --> 00:16:15,280 Speaker 13: gifted to us. And there's not a single thing that 273 00:16:15,440 --> 00:16:17,720 Speaker 13: any one of them could go to take that away 274 00:16:17,760 --> 00:16:22,200 Speaker 13: from us, no legislation, no poor decision. We are summer 275 00:16:22,400 --> 00:16:26,360 Speaker 13: tribal nations from the beginning of time until the end 276 00:16:26,400 --> 00:16:26,880 Speaker 13: of time. 277 00:16:28,840 --> 00:16:29,760 Speaker 10: Whoa, whoa. 278 00:16:32,920 --> 00:16:35,000 Speaker 1: At six pm, it was time to catch the train 279 00:16:35,080 --> 00:16:38,240 Speaker 1: back to Baltimore, where I was staying. I started walking 280 00:16:38,240 --> 00:16:41,920 Speaker 1: towards Union Station, but I got lost. People say the 281 00:16:41,960 --> 00:16:45,840 Speaker 1: diagonal streets in Washington, d C. Were designed to confuse 282 00:16:46,000 --> 00:16:49,560 Speaker 1: and bewilder an invading army. On the day that I 283 00:16:49,600 --> 00:16:52,760 Speaker 1: felt at odds with this government, it worked on me. 284 00:16:53,800 --> 00:16:55,600 Speaker 1: I don't know if you're like this, but I am 285 00:16:55,680 --> 00:17:00,000 Speaker 1: capable of holding in all my feelings until something small 286 00:17:00,400 --> 00:17:05,080 Speaker 1: and insignificant goes wrong, and then I break. After realizing 287 00:17:05,160 --> 00:17:08,359 Speaker 1: I had walked ten minutes in the wrong direction, I 288 00:17:08,400 --> 00:17:11,680 Speaker 1: sat down and cried. I hadn't let myself feel anything 289 00:17:11,800 --> 00:17:15,479 Speaker 1: the whole day. As a reporter, that wasn't my job. 290 00:17:16,000 --> 00:17:18,480 Speaker 1: Some would go as far to say, because I feel 291 00:17:18,600 --> 00:17:22,560 Speaker 1: the stakes of this case personally, I shouldn't report on it. 292 00:17:23,240 --> 00:17:26,200 Speaker 1: But here is what I felt. It took us two 293 00:17:26,400 --> 00:17:29,560 Speaker 1: years to prove the story the plaintiffs told about what 294 00:17:29,720 --> 00:17:34,520 Speaker 1: happened in these custody cases wasn't true. Two years to 295 00:17:34,560 --> 00:17:38,800 Speaker 1: connect the dots between moneyed interests and the attack on Iqua. 296 00:17:39,560 --> 00:17:43,240 Speaker 1: But in that courtroom, it felt like none of that mattered. 297 00:17:43,880 --> 00:17:47,680 Speaker 1: It felt like the truth didn't matter, and I didn't 298 00:17:47,720 --> 00:17:51,199 Speaker 1: know what to do with that. Without the truth, I 299 00:17:51,240 --> 00:17:58,520 Speaker 1: don't think justice is possible. It's hard to overstate how 300 00:17:58,560 --> 00:18:03,199 Speaker 1: pessimistic I felt about the outcome in this case. But 301 00:18:03,320 --> 00:18:10,840 Speaker 1: then the opinion came out what it said after the 302 00:18:10,880 --> 00:18:24,240 Speaker 1: break last Thursday. I was frantically reading the opinion when 303 00:18:24,240 --> 00:18:32,000 Speaker 1: I got to the second paragraph. Fuck, yes, yes, yes, yes, Okay. 304 00:18:32,200 --> 00:18:36,159 Speaker 1: The bottom line is that we reject all of the petitioners' 305 00:18:36,640 --> 00:18:41,920 Speaker 1: challenges to the statute, some on the merits and others 306 00:18:41,960 --> 00:18:46,199 Speaker 1: for lack of standing. They last, I can't believe it. 307 00:18:46,359 --> 00:18:52,000 Speaker 1: I cannot believe it. They fucking lost. Oh my god, 308 00:18:54,800 --> 00:18:59,439 Speaker 1: I can't believe it. Oh my god. The Brakeens and 309 00:18:59,560 --> 00:19:04,160 Speaker 1: Texas lost. It was not even close. The final vote 310 00:19:04,200 --> 00:19:07,840 Speaker 1: was seven to two. Writing for the majority, Justice amy 311 00:19:07,880 --> 00:19:12,840 Speaker 1: Cony Barrett was joined by Justices Jackson, Kagan, Sodom Gorsich, 312 00:19:13,640 --> 00:19:16,120 Speaker 1: and two other people for which I will now eat 313 00:19:16,160 --> 00:19:23,399 Speaker 1: my words, Chief Justice Roberts and Justice Kavanaugh. The first 314 00:19:23,440 --> 00:19:27,120 Speaker 1: person I wanted to talk to was law professor Matthew Fletcher. 315 00:19:27,320 --> 00:19:33,840 Speaker 1: All right, we're recording. I'm recording your recording. We're all recording. 316 00:19:33,800 --> 00:19:34,720 Speaker 3: So much recording. 317 00:19:35,240 --> 00:19:37,040 Speaker 1: The first thing I wanted to ask you was, actually, 318 00:19:37,320 --> 00:19:39,720 Speaker 1: if you can sort of think back to how you 319 00:19:39,800 --> 00:19:43,720 Speaker 1: have felt the past few weeks waiting for the decision 320 00:19:43,760 --> 00:19:44,280 Speaker 1: to come out. 321 00:19:44,640 --> 00:19:46,480 Speaker 3: I was really thinking about how I'm going to have 322 00:19:46,520 --> 00:19:49,920 Speaker 3: to rewrite my Federal Indian law casebook. I guess maybe 323 00:19:50,160 --> 00:19:53,600 Speaker 3: I was trying to move myself through the stages of grief. 324 00:19:54,040 --> 00:19:56,000 Speaker 1: What stage of grief do you think you were in? 325 00:19:56,280 --> 00:20:00,399 Speaker 3: I was trying to talk myself into acceptance. I was 326 00:20:00,480 --> 00:20:06,200 Speaker 3: really angry after oral argument. I was just angry at 327 00:20:06,440 --> 00:20:09,199 Speaker 3: everything about this, the fact that we were even in 328 00:20:09,240 --> 00:20:14,120 Speaker 3: the Supreme Court with a case this utterly ridiculous. I mean, 329 00:20:14,160 --> 00:20:17,880 Speaker 3: all the adoptions are done. Why are we here. It's 330 00:20:17,920 --> 00:20:22,760 Speaker 3: all a performance and they're dragging real life people, Indian people, 331 00:20:23,280 --> 00:20:27,600 Speaker 3: Indian tribes into this political gesture show. 332 00:20:28,280 --> 00:20:31,560 Speaker 1: I was wondering if you could take me back to 333 00:20:31,680 --> 00:20:36,560 Speaker 1: the moment that the decision came out, and at what point, 334 00:20:36,720 --> 00:20:40,680 Speaker 1: as you were scrambling to read the decision or following 335 00:20:40,680 --> 00:20:44,920 Speaker 1: it on Scotus blog, did you realize that the petitioners 336 00:20:44,960 --> 00:20:47,320 Speaker 1: had lost on every claim. 337 00:20:48,200 --> 00:20:50,879 Speaker 3: I immediately went to the Supreme Court website clicked on 338 00:20:51,359 --> 00:20:54,679 Speaker 3: backing on the opinion. So I went through and I 339 00:20:54,720 --> 00:20:59,240 Speaker 3: saw that the first section was on the Congress's power 340 00:20:59,720 --> 00:21:01,720 Speaker 3: and that that was an easy one, and they said, yeah, yeah, 341 00:21:01,720 --> 00:21:04,639 Speaker 3: Congress has power to do stuff like this. The second 342 00:21:04,640 --> 00:21:08,560 Speaker 3: one was commandeering, and they said, we reject the commandeering argument, 343 00:21:08,760 --> 00:21:12,479 Speaker 3: and I thought, holy cow, I can't believe that we 344 00:21:12,520 --> 00:21:16,000 Speaker 3: won on commandeering. And then I moved to the next one, 345 00:21:16,320 --> 00:21:20,200 Speaker 3: which was equal protection and non delegation, and it said 346 00:21:20,240 --> 00:21:22,439 Speaker 3: there is no standing for any party to challenge this, 347 00:21:22,560 --> 00:21:24,840 Speaker 3: and I thought, Holy Kyle, did we actually just witness. 348 00:21:25,640 --> 00:21:29,080 Speaker 1: I'm kind of wondering on a scale of one to ten, 349 00:21:29,480 --> 00:21:32,000 Speaker 1: if you could describe how shocked you were. 350 00:21:32,280 --> 00:21:34,160 Speaker 3: I was shocked on a scale of one to ten 351 00:21:34,280 --> 00:21:38,400 Speaker 3: about fifteen. And you know, this is a court that 352 00:21:38,640 --> 00:21:41,439 Speaker 3: not long ago got rid of, you know, the constitutional 353 00:21:41,520 --> 00:21:44,919 Speaker 3: right to abortion. We know that they've got it the 354 00:21:45,000 --> 00:21:48,200 Speaker 3: Voting Rights Act, and they don't seem to have any 355 00:21:50,320 --> 00:21:55,280 Speaker 3: respect for, you know, the sort of the the core 356 00:21:55,480 --> 00:21:59,040 Speaker 3: principles of the Constitution, Like every justice has their own 357 00:21:59,080 --> 00:22:02,040 Speaker 3: view of the Constitution, and it doesn't matter what you 358 00:22:02,119 --> 00:22:05,440 Speaker 3: learned in law school. Nothing is sacred at the Supreme Court. 359 00:22:06,080 --> 00:22:10,239 Speaker 3: And I just couldn't believe that they followed precedent. If 360 00:22:10,280 --> 00:22:13,840 Speaker 3: you're a tribal advocate, you're mantra at the Supreme Court 361 00:22:14,040 --> 00:22:17,359 Speaker 3: is please just follow the law. We're going to win 362 00:22:17,440 --> 00:22:19,879 Speaker 3: like ninety five percent of those cases. The law is 363 00:22:20,000 --> 00:22:24,359 Speaker 3: almost always in our favor, and it's when the court 364 00:22:24,440 --> 00:22:28,240 Speaker 3: doesn't follow the law where they change something, that's where 365 00:22:28,880 --> 00:22:29,919 Speaker 3: we lose those cases. 366 00:22:30,440 --> 00:22:33,760 Speaker 1: The plaintiffs in Texas, we're trying to say that Congress 367 00:22:33,800 --> 00:22:37,479 Speaker 1: doesn't have the power to pass a law like IQUA 368 00:22:37,560 --> 00:22:42,040 Speaker 1: in the first place. Can you summarize what the majority 369 00:22:42,080 --> 00:22:43,479 Speaker 1: opinion had to say about that? 370 00:22:44,200 --> 00:22:49,640 Speaker 3: The majority opinion began with a dissertation on Congressional Indian 371 00:22:49,680 --> 00:22:53,800 Speaker 3: affairs power. So when you are looking at congressional powers, 372 00:22:53,800 --> 00:22:55,760 Speaker 3: you have to look at the text of the Constitution. 373 00:22:56,359 --> 00:22:58,680 Speaker 3: And what we have in the Constitution to start with 374 00:22:58,920 --> 00:23:01,959 Speaker 3: is the Indian COMMERCECOO laws. But that's not the whole 375 00:23:02,640 --> 00:23:05,560 Speaker 3: length of or not the whole scope of congressional powers 376 00:23:05,600 --> 00:23:09,600 Speaker 3: in Indian affairs. Congress and the federal government generally have 377 00:23:09,800 --> 00:23:12,359 Speaker 3: entered into, as you know, almost four hundred treaties with 378 00:23:12,440 --> 00:23:15,960 Speaker 3: Indian tribes. So there's also this thing called the treaty power, 379 00:23:16,520 --> 00:23:20,560 Speaker 3: and the treaty power broadly expands congressional powers to include 380 00:23:20,600 --> 00:23:23,919 Speaker 3: things that are beyond what is enumerated in the Constitution. 381 00:23:24,800 --> 00:23:27,480 Speaker 3: The third really big one, this is really critical and 382 00:23:27,520 --> 00:23:29,080 Speaker 3: I was so glad to see it in the majority 383 00:23:29,119 --> 00:23:33,040 Speaker 3: opinion is the trust responsibility. And we often refer to 384 00:23:33,080 --> 00:23:37,960 Speaker 3: you as as our trustee sort of Riley sarcastically. But 385 00:23:38,080 --> 00:23:40,280 Speaker 3: really what it is is the duty of protection that 386 00:23:40,320 --> 00:23:44,520 Speaker 3: the United States has in relation to individual Indians and 387 00:23:44,560 --> 00:23:50,560 Speaker 3: the Indian tribes. And then the Court listed literally dozens 388 00:23:51,080 --> 00:23:55,439 Speaker 3: of opinions in which it's acknowledged the broad scope of 389 00:23:55,520 --> 00:23:58,679 Speaker 3: Congressional power over Indian affairs, and this was not the 390 00:23:58,760 --> 00:24:02,000 Speaker 3: day to limit that, to reverse a lot of those cases. 391 00:24:02,400 --> 00:24:05,920 Speaker 3: The United States has used Indian families from the very 392 00:24:05,960 --> 00:24:12,720 Speaker 3: beginning to coerce, influence, persuade Indian tribes to do certain things. 393 00:24:12,760 --> 00:24:18,080 Speaker 3: It's a tool of colonization, effectively. And the Court just 394 00:24:18,160 --> 00:24:20,880 Speaker 3: pointed out the obvious, which is Congress has been doing 395 00:24:20,880 --> 00:24:24,440 Speaker 3: this all along. They have brought Indian affairs power. That's 396 00:24:24,480 --> 00:24:25,359 Speaker 3: the end of the argument. 397 00:24:28,560 --> 00:24:32,640 Speaker 1: The majority opinion is short, only thirty four pages. There's 398 00:24:32,720 --> 00:24:37,640 Speaker 1: almost one hundred more pages, however, of other stuff justices 399 00:24:37,760 --> 00:24:43,120 Speaker 1: had to say. Justices Alito and Thomas dissented. They both 400 00:24:43,200 --> 00:24:47,840 Speaker 1: ruled iqua is unconstitutional, but didn't agree on why, so 401 00:24:47,920 --> 00:24:52,600 Speaker 1: they wrote separately. There were also two concurring opinions. That 402 00:24:52,680 --> 00:24:56,040 Speaker 1: happens when a justice agrees with the majority but wants 403 00:24:56,040 --> 00:24:59,359 Speaker 1: to add something of their own. Justice Corsich added a 404 00:24:59,480 --> 00:25:03,880 Speaker 1: very detail history of how, for generations, the US government 405 00:25:04,000 --> 00:25:08,880 Speaker 1: has systematically removed Native children from their families and tribes. 406 00:25:09,840 --> 00:25:13,360 Speaker 1: Justice Kavanaugh added that although the plaintiffs don't have standing 407 00:25:13,480 --> 00:25:18,399 Speaker 1: in this case, he does think EQUA raises equal protection concerns. 408 00:25:20,000 --> 00:25:23,720 Speaker 1: I had one last question for Matthew Fletcher. Do you 409 00:25:23,840 --> 00:25:28,000 Speaker 1: think that Matthew McGill, Gibson Dunn, the right wing groups, 410 00:25:28,000 --> 00:25:31,880 Speaker 1: and the private adoption attorneys that brought this case will 411 00:25:31,920 --> 00:25:34,960 Speaker 1: stop here. Do you think that the bigger attack on 412 00:25:35,080 --> 00:25:37,520 Speaker 1: IQUA and tribal sovereignty is over. 413 00:25:38,119 --> 00:25:42,480 Speaker 3: If they think that the concurring opinion from Justice Gavinaugh 414 00:25:43,160 --> 00:25:48,160 Speaker 3: is a signal to them that there is an audience 415 00:25:48,200 --> 00:25:52,239 Speaker 3: for the equal protection argument, then they'll keep going. I 416 00:25:52,280 --> 00:25:54,680 Speaker 3: really don't think there is. I don't know how they 417 00:25:54,760 --> 00:26:00,359 Speaker 3: find a vehicle to challenge IQUA under equal protection because 418 00:26:00,600 --> 00:26:03,320 Speaker 3: they couldn't find a vehicle in this case. They don't 419 00:26:03,359 --> 00:26:07,960 Speaker 3: have standing. You know, they're like puppies who took a 420 00:26:08,000 --> 00:26:10,520 Speaker 3: newspaper to the nose today, and I don't know if 421 00:26:10,520 --> 00:26:11,480 Speaker 3: they're going to come back or not. 422 00:26:12,400 --> 00:26:16,080 Speaker 1: My conversation with Matthew Fletcher answered most of my questions, 423 00:26:16,440 --> 00:26:19,360 Speaker 1: but there were a few things I was still processing, 424 00:26:19,880 --> 00:26:24,080 Speaker 1: so I called up another lawyer, a man named Ian Gershngorn. 425 00:26:24,720 --> 00:26:28,159 Speaker 1: If you've been following the case closely, you might recognize 426 00:26:28,200 --> 00:26:31,440 Speaker 1: Ian's voice. That's because I did. 427 00:26:31,280 --> 00:26:33,240 Speaker 2: The oral argument on behalf of the tribes. 428 00:26:33,760 --> 00:26:36,280 Speaker 1: And if you're a longtime listener, you might also remember 429 00:26:36,359 --> 00:26:40,240 Speaker 1: Ian from season one. He argued both Murphy and McGirt 430 00:26:40,320 --> 00:26:43,000 Speaker 1: in front of the Supreme Court. I talked to Matthew 431 00:26:43,000 --> 00:26:46,200 Speaker 1: Fletcher about how the court ruled on that big, complicated 432 00:26:46,280 --> 00:26:50,919 Speaker 1: question around congressional authority and states' rights, but I still 433 00:26:50,960 --> 00:26:55,320 Speaker 1: needed someone to explain what happened with equal protection? Can 434 00:26:55,359 --> 00:26:58,639 Speaker 1: you start with the equal protection argument? What did the 435 00:26:58,680 --> 00:27:00,440 Speaker 1: Supreme Court have to say that? 436 00:27:00,760 --> 00:27:04,320 Speaker 2: What the court said was both the individual plaintiffs and 437 00:27:04,320 --> 00:27:08,040 Speaker 2: the state of Texas didn't have standing. So the case 438 00:27:08,119 --> 00:27:11,560 Speaker 2: was brought in federal court. But no custody hearings happened 439 00:27:11,600 --> 00:27:14,080 Speaker 2: in federal court. They all happen in state court. They 440 00:27:14,119 --> 00:27:17,560 Speaker 2: happen in you know, in Texas, in Minnesota, in Arizona, 441 00:27:18,119 --> 00:27:23,280 Speaker 2: and the plaintiffs, rather than challenging a particular adoption or 442 00:27:23,359 --> 00:27:28,040 Speaker 2: a particular foster placement, decided to file a preemptive lawsuit 443 00:27:28,119 --> 00:27:30,800 Speaker 2: in federal court to try to get the whole statute 444 00:27:30,800 --> 00:27:34,000 Speaker 2: struck down. You know, a plaintiff has a right to 445 00:27:34,160 --> 00:27:37,600 Speaker 2: challenge an adoption and say I'm being treated unfairly. We 446 00:27:37,640 --> 00:27:39,960 Speaker 2: don't think they're being treated unfairly, but we don't dispute. 447 00:27:39,960 --> 00:27:42,280 Speaker 2: They have the right to bring that case. But what 448 00:27:42,320 --> 00:27:44,720 Speaker 2: they don't have the right to do is to pick 449 00:27:44,720 --> 00:27:47,760 Speaker 2: a court and tee up a political dispute in the 450 00:27:47,840 --> 00:27:52,040 Speaker 2: abstract and then ask the Supreme Court to decide it. Abstract. 451 00:27:52,080 --> 00:27:55,960 Speaker 2: Legal disputes brought by people because they think they may 452 00:27:56,000 --> 00:27:58,440 Speaker 2: have a friendly federal judge or a friendly federal circuit 453 00:27:58,720 --> 00:28:02,840 Speaker 2: are not a way to major constitutional questions. 454 00:28:03,280 --> 00:28:07,640 Speaker 1: Big Supreme Court decisions get talked about in these attention 455 00:28:07,760 --> 00:28:12,200 Speaker 1: grabbing moments like a decision being announced or oral arguments. 456 00:28:12,560 --> 00:28:16,480 Speaker 1: But today is the product of years of work, and 457 00:28:16,680 --> 00:28:19,640 Speaker 1: I know that you have been part of a broader 458 00:28:19,800 --> 00:28:23,879 Speaker 1: effort to improve advocacy on behalf of Native nations in 459 00:28:23,920 --> 00:28:26,560 Speaker 1: front of the Supreme Court, and for people who don't 460 00:28:26,600 --> 00:28:29,119 Speaker 1: know much about that effort, I was wondering if you 461 00:28:29,240 --> 00:28:32,920 Speaker 1: can share a little bit about all of the work 462 00:28:33,000 --> 00:28:35,720 Speaker 1: that was happening behind the scenes, and I'm curious if 463 00:28:35,720 --> 00:28:36,960 Speaker 1: you think that it paid off. 464 00:28:37,560 --> 00:28:40,720 Speaker 2: So the answer is definitely yes, it paid off. And 465 00:28:41,200 --> 00:28:44,440 Speaker 2: so the two decades work behind the scenes is was 466 00:28:44,480 --> 00:28:48,040 Speaker 2: an effort starting in the early two thousands led by 467 00:28:48,120 --> 00:28:52,920 Speaker 2: a bunch of people, including those at NARF and at NCAAI. 468 00:28:52,960 --> 00:28:55,920 Speaker 1: That is, the Native American Rights Fund and the National 469 00:28:55,960 --> 00:29:00,240 Speaker 1: Congress of American Indians. They're kind of like the ACLU 470 00:29:00,320 --> 00:29:05,120 Speaker 1: and NAACP in the Native community. Together they started something 471 00:29:05,200 --> 00:29:08,120 Speaker 1: called the Tribal Supreme Court Project. 472 00:29:07,960 --> 00:29:11,560 Speaker 2: And they sort of had looked at how tribes were 473 00:29:11,600 --> 00:29:13,960 Speaker 2: faring in the Supreme Court and realized that tribes were 474 00:29:13,960 --> 00:29:17,040 Speaker 2: faring very badly in the Supreme Court. So it was 475 00:29:17,080 --> 00:29:22,040 Speaker 2: a matter of getting Supreme Court expertise to tribes and 476 00:29:22,160 --> 00:29:25,840 Speaker 2: getting knowledge about Indian country and Native American law to 477 00:29:25,880 --> 00:29:29,440 Speaker 2: Supreme Court experts and seeing if that would change things. 478 00:29:29,520 --> 00:29:33,520 Speaker 2: And that was how I got involved. So with respect 479 00:29:33,600 --> 00:29:36,760 Speaker 2: to this case, it was a tremendous amount of work 480 00:29:36,920 --> 00:29:39,360 Speaker 2: that went into the amikas strategy. 481 00:29:40,040 --> 00:29:42,760 Speaker 1: For people who don't know, amicis is a weird little 482 00:29:42,840 --> 00:29:45,960 Speaker 1: Latin word that means friend. Even if you're not part 483 00:29:46,000 --> 00:29:49,080 Speaker 1: of a lawsuit, you can still file an amicus brief 484 00:29:49,160 --> 00:29:51,520 Speaker 1: with the court supporting one side or the other. 485 00:29:52,040 --> 00:29:56,280 Speaker 2: We had briefs on from law professors on the history 486 00:29:56,320 --> 00:29:58,200 Speaker 2: of tribal relations to try to deal with some of 487 00:29:58,200 --> 00:30:04,040 Speaker 2: the constitutional issues. Had briefs from groups that work in 488 00:30:04,080 --> 00:30:08,280 Speaker 2: the adoption space, and I talked about how important EQUA was, 489 00:30:08,320 --> 00:30:12,040 Speaker 2: how EQUA had become the gold standard. We had powerful 490 00:30:12,080 --> 00:30:15,360 Speaker 2: briefs from tribal members who had been involved actually in 491 00:30:15,400 --> 00:30:18,880 Speaker 2: these adoptions. The number of people who worked on this 492 00:30:19,120 --> 00:30:22,120 Speaker 2: is beyond my ability to count I as an advocate. 493 00:30:22,160 --> 00:30:24,880 Speaker 2: Am focused on changing the minds of nine people or 494 00:30:24,960 --> 00:30:28,680 Speaker 2: five of those nine people. But you know, all of 495 00:30:28,680 --> 00:30:32,840 Speaker 2: these cases happened in a broader social context, and a 496 00:30:32,880 --> 00:30:36,479 Speaker 2: lot of effort was paid to making sure that the 497 00:30:36,520 --> 00:30:39,400 Speaker 2: public understood what this case was about. 498 00:30:39,720 --> 00:30:42,040 Speaker 1: I think there were still some stories that sort of 499 00:30:42,800 --> 00:30:47,880 Speaker 1: told the Brackens version of events uncritically in ways that 500 00:30:48,760 --> 00:30:52,880 Speaker 1: I think were less than factually accurate. But there was 501 00:30:52,560 --> 00:30:55,520 Speaker 1: it was a small percentage of the overall coverage, and 502 00:30:55,560 --> 00:31:00,000 Speaker 1: I think, especially when you compare it to the last 503 00:31:00,200 --> 00:31:03,440 Speaker 1: time IQUA was in front of the Supreme Court, I 504 00:31:03,480 --> 00:31:05,240 Speaker 1: think you can see a really big difference. 505 00:31:05,600 --> 00:31:07,840 Speaker 2: I agree with that, and honestly, some of your reporting 506 00:31:08,000 --> 00:31:09,920 Speaker 2: is a part of that, right, It's a part of 507 00:31:10,000 --> 00:31:13,320 Speaker 2: getting the story out. It's not to drown out the 508 00:31:13,320 --> 00:31:16,440 Speaker 2: other side, but it's to put balance, to fact check, 509 00:31:16,760 --> 00:31:18,360 Speaker 2: to put things in context. 510 00:31:20,240 --> 00:31:23,680 Speaker 1: Last Thursday, when the decision came down, Sandy white Hawk 511 00:31:23,800 --> 00:31:26,840 Speaker 1: was in a car riding through rural Minnesota and. 512 00:31:26,800 --> 00:31:29,120 Speaker 12: I'm in the middle of the woods to back on 513 00:31:29,440 --> 00:31:33,480 Speaker 12: some back road. So beautiful up here. It's just all 514 00:31:33,520 --> 00:31:37,400 Speaker 12: trees and lakes, trees and lakes everywhere you go. 515 00:31:37,960 --> 00:31:41,560 Speaker 1: Sandy white Hawk is Techongu Lakota from the Rosebud Reservation 516 00:31:41,840 --> 00:31:45,840 Speaker 1: in South Dakota. You might remember her from earlier episodes. 517 00:31:46,200 --> 00:31:50,320 Speaker 1: Sandy was adopted out before IQUA was passed. Today, she 518 00:31:50,480 --> 00:31:53,640 Speaker 1: advocates for Native kids to stay with their families. 519 00:31:53,880 --> 00:31:56,400 Speaker 12: I'm all my way over to the Leech Lake Reservation 520 00:31:57,120 --> 00:32:00,200 Speaker 12: because I was here for the came to big drums salmon. 521 00:32:00,760 --> 00:32:03,880 Speaker 1: As the landscape rolled by. Sandy's phone started. 522 00:32:03,560 --> 00:32:07,760 Speaker 12: Ringing and get the phone call, and my friend Priscilla Day, 523 00:32:07,800 --> 00:32:12,960 Speaker 12: who I'm staying with, is Sandy. The decision was in 524 00:32:12,960 --> 00:32:21,160 Speaker 12: our favor seven to two, and I went and I 525 00:32:21,200 --> 00:32:24,440 Speaker 12: was just in shock because I really didn't think it 526 00:32:24,480 --> 00:32:27,920 Speaker 12: was going to be upheld. Only a really small part 527 00:32:27,920 --> 00:32:31,120 Speaker 12: of me let myself hope that it would. 528 00:32:31,520 --> 00:32:34,760 Speaker 1: People wanted to talk to Sandy about the decision. They 529 00:32:34,760 --> 00:32:37,840 Speaker 1: wanted to know what she thought. They wanted to interview her, 530 00:32:38,520 --> 00:32:40,440 Speaker 1: but she didn't feel ready to speak. 531 00:32:40,720 --> 00:32:44,560 Speaker 12: I thought, better not talk to anybody because I don't 532 00:32:44,560 --> 00:32:48,560 Speaker 12: want to force myself to try to sound coherent, because 533 00:32:48,600 --> 00:32:51,840 Speaker 12: I wasn't feeling that. I was just beside myself with 534 00:32:52,160 --> 00:32:53,360 Speaker 12: is this really true. 535 00:32:53,680 --> 00:32:56,360 Speaker 1: Sandy got up to leech Lake and spent the evening 536 00:32:56,440 --> 00:32:57,200 Speaker 1: in ceremony. 537 00:32:57,560 --> 00:33:02,360 Speaker 12: People may think ceremony is all this mystical experience, but 538 00:33:02,440 --> 00:33:07,280 Speaker 12: it's not. It's a quieting of your spirit. It's just 539 00:33:07,320 --> 00:33:12,760 Speaker 12: slowing down of your mind. That drum beat that is 540 00:33:12,840 --> 00:33:16,760 Speaker 12: our mother, That drum beat connects us to the Earth, 541 00:33:16,840 --> 00:33:21,280 Speaker 12: who connects us to who we are in our life. 542 00:33:21,840 --> 00:33:22,920 Speaker 12: I mean, it's everything. 543 00:33:23,520 --> 00:33:26,240 Speaker 1: Sandy needed that time to let it all sink in. 544 00:33:26,720 --> 00:33:30,200 Speaker 12: It wasn't until the end of ceremony was over people 545 00:33:30,240 --> 00:33:33,880 Speaker 12: were clearing out and leaving. Somehow that just brought me 546 00:33:34,040 --> 00:33:35,480 Speaker 12: full circle back. 547 00:33:37,600 --> 00:33:41,520 Speaker 1: In that moment, it came to her a vision of sorts. 548 00:33:41,920 --> 00:33:45,840 Speaker 1: It was almost like a timeline, but instead of seeing 549 00:33:45,880 --> 00:33:49,760 Speaker 1: it in order, she saw it all at once, in 550 00:33:49,800 --> 00:33:54,400 Speaker 1: a flash before her eyes. She saw all the work 551 00:33:55,080 --> 00:33:59,560 Speaker 1: and all the people who made this victory possible. 552 00:34:00,160 --> 00:34:04,480 Speaker 12: And all I could think of were those grandmas back 553 00:34:04,560 --> 00:34:08,799 Speaker 12: in the seventies who made their way to DC, all 554 00:34:08,840 --> 00:34:13,600 Speaker 12: those mothers who were willing to put themselves in front 555 00:34:13,760 --> 00:34:19,400 Speaker 12: of a court system that was still very, very prejudiced 556 00:34:19,440 --> 00:34:24,600 Speaker 12: toward Indian people, and how intimidating that process must have 557 00:34:24,680 --> 00:34:28,400 Speaker 12: felt for them. Because of the love of their children 558 00:34:28,640 --> 00:34:30,960 Speaker 12: and their grandchildren, they did it. 559 00:34:31,760 --> 00:34:34,160 Speaker 1: She could see all the people who fought for EQUA 560 00:34:34,239 --> 00:34:35,120 Speaker 1: when it passed. 561 00:34:35,480 --> 00:34:37,279 Speaker 12: Bert hrsch is the one who said, well, let's do 562 00:34:37,320 --> 00:34:39,319 Speaker 12: a study and find out how kids are doing. 563 00:34:40,000 --> 00:34:42,680 Speaker 1: She could see all the research Native people had done 564 00:34:42,719 --> 00:34:45,440 Speaker 1: since then to show Native kids are better off with 565 00:34:45,520 --> 00:34:48,640 Speaker 1: their families. A lot of research ended up in the 566 00:34:48,680 --> 00:34:51,000 Speaker 1: opinion Lilah George. 567 00:34:51,600 --> 00:34:55,160 Speaker 12: She wrote a paper in nineteen ninety four about why 568 00:34:55,239 --> 00:34:56,280 Speaker 12: equal was important. 569 00:34:56,560 --> 00:35:01,480 Speaker 1: She was cited even Sandy's work was there Gorsuch side. 570 00:35:01,239 --> 00:35:04,319 Speaker 12: To day they used our study about mental health outcomes 571 00:35:04,360 --> 00:35:05,839 Speaker 12: for Native adoptees. 572 00:35:06,480 --> 00:35:11,800 Speaker 1: She saw the social workers and trainers and advocacy organizations. 573 00:35:11,360 --> 00:35:13,879 Speaker 12: All the way up, you know, all the lawyers who 574 00:35:13,920 --> 00:35:14,560 Speaker 12: worked hard. 575 00:35:15,040 --> 00:35:18,600 Speaker 1: She saw all the Native families who fought to keep 576 00:35:18,680 --> 00:35:19,320 Speaker 1: their children. 577 00:35:19,760 --> 00:35:23,920 Speaker 12: And I thought about all the ceremonies that have taken 578 00:35:24,000 --> 00:35:32,040 Speaker 12: place over these generations, and how prayers were said for 579 00:35:33,280 --> 00:35:37,279 Speaker 12: this work, and prayers were said for our families. So 580 00:35:37,440 --> 00:35:41,359 Speaker 12: many places that I have been, where you will hear 581 00:35:41,600 --> 00:35:47,680 Speaker 12: somebody say, my grandma testified here, you know, my aunt, 582 00:35:48,120 --> 00:35:54,319 Speaker 12: and then they'll have a story. So this wasn't you know, 583 00:35:54,400 --> 00:35:55,640 Speaker 12: one or two families. 584 00:35:56,800 --> 00:35:57,279 Speaker 11: This was. 585 00:35:59,120 --> 00:35:59,920 Speaker 12: A collective. 586 00:36:02,320 --> 00:36:06,759 Speaker 1: Native people knew how important this case was, and they 587 00:36:06,840 --> 00:36:07,480 Speaker 1: fought for it. 588 00:36:07,880 --> 00:36:11,960 Speaker 12: We've always known that them coming after our children would 589 00:36:12,719 --> 00:36:17,200 Speaker 12: destabilize tribal sovereignty. But now they can't. 590 00:36:18,160 --> 00:36:18,600 Speaker 2: It just. 591 00:36:20,280 --> 00:36:22,280 Speaker 12: Finally feels like a protection. 592 00:36:26,320 --> 00:36:31,440 Speaker 1: Today, the Indian Child Welfare Act stands. That victory, however, 593 00:36:32,120 --> 00:36:35,799 Speaker 1: just maintains the status quo. The Supreme Court didn't change 594 00:36:35,800 --> 00:36:39,719 Speaker 1: a thing about iqua or tribal sovereignty, or even its 595 00:36:39,800 --> 00:36:45,320 Speaker 1: own precedent. It simply followed the law. That's it. That's all. 596 00:36:45,840 --> 00:36:50,480 Speaker 1: But still it's remarkable. That's because when it comes to 597 00:36:50,560 --> 00:36:56,200 Speaker 1: tribal sovereignty, the US government is spineless. Most often, when 598 00:36:56,239 --> 00:37:00,640 Speaker 1: non native people like the Brakeens want something that longs 599 00:37:00,680 --> 00:37:05,719 Speaker 1: to a tribe, like our land, our sovereignty, or our children, 600 00:37:06,360 --> 00:37:11,200 Speaker 1: they get it, even when the law clearly protects the tribe. 601 00:37:11,239 --> 00:37:15,400 Speaker 1: Sometimes those protections, like the text and a treaty just 602 00:37:15,440 --> 00:37:21,440 Speaker 1: gets ignored. Other times, though, something worse happens to satisfy 603 00:37:21,560 --> 00:37:26,000 Speaker 1: those non native demands. The US government comes along and 604 00:37:26,200 --> 00:37:30,840 Speaker 1: changes the law. That's where we get big setbacks for 605 00:37:31,000 --> 00:37:35,080 Speaker 1: tribal sovereignty. And that's what people feared would happen in 606 00:37:35,160 --> 00:37:41,160 Speaker 1: this case for a long time. For a very long time, 607 00:37:42,080 --> 00:37:47,040 Speaker 1: what indigenous nations have been asking of your government is simple, 608 00:37:48,239 --> 00:37:57,080 Speaker 1: follow the law. Just follow the law. Justice Gorsich wrote 609 00:37:57,120 --> 00:38:02,400 Speaker 1: about this at the end of his concurring opinion slightly condensed. 610 00:38:02,480 --> 00:38:07,080 Speaker 1: It reads, often Native American tribes have come to this 611 00:38:07,239 --> 00:38:11,600 Speaker 1: court seeking justice, only to leave with bowed heads and 612 00:38:11,680 --> 00:38:16,080 Speaker 1: empty hands. But that is not because this court has 613 00:38:16,160 --> 00:38:20,840 Speaker 1: no justice to offer them. Our Constitution reserves for the 614 00:38:20,920 --> 00:38:25,239 Speaker 1: tribes a place, an enduring place in the structure of 615 00:38:25,280 --> 00:38:30,640 Speaker 1: American life. In adopting the Indian Child Welfare Act, Congress 616 00:38:30,680 --> 00:38:34,720 Speaker 1: exercised that lawful authority to secure the right of Indian 617 00:38:34,800 --> 00:38:38,439 Speaker 1: parents to raise their families as they please, the right 618 00:38:38,520 --> 00:38:42,080 Speaker 1: of Indian children to grow in their culture, and the 619 00:38:42,160 --> 00:38:46,800 Speaker 1: right of Indian communities to resist fading into the twilight 620 00:38:46,960 --> 00:38:51,560 Speaker 1: of history. All of that is keeping with the Constitution's 621 00:38:51,840 --> 00:38:59,040 Speaker 1: original design. The lesson of this case, Holland v. Brakin, 622 00:39:00,120 --> 00:39:02,759 Speaker 1: isn't that when the law is on our side and 623 00:39:02,800 --> 00:39:07,920 Speaker 1: we fight really hard for it, justice prevails. The lesson 624 00:39:08,840 --> 00:39:14,640 Speaker 1: is that although justice for indigenous nations is rare in 625 00:39:14,719 --> 00:39:31,920 Speaker 1: our democracy, it is possible. This land is reported written 626 00:39:31,960 --> 00:39:34,960 Speaker 1: and hosted by me Rebecca N. Eagle Goheen dadont de 627 00:39:35,040 --> 00:39:39,480 Speaker 1: La Kayetrigue La, citizen of Cherokee Nation from Crooked Media. 628 00:39:39,560 --> 00:39:43,760 Speaker 1: Our executive producers are John Favreau, Sarah Geismer, Katie Long 629 00:39:43,920 --> 00:39:47,400 Speaker 1: and marrying Off. Our senior producer is marrying Off. Our 630 00:39:47,440 --> 00:39:51,800 Speaker 1: associate producer is Sydney Rapp. Sound design and mixing by HANNS. Brown. 631 00:39:52,400 --> 00:39:56,160 Speaker 1: Original score composed by Jared Tate, Citizen of Chickasaw Nation. 632 00:39:56,520 --> 00:40:00,960 Speaker 1: Podcast art by Kelly Gonzalez citizen of Cherokee Nation. This 633 00:40:01,080 --> 00:40:05,080 Speaker 1: season of This Land touches on different forms of family, childhood, 634 00:40:05,160 --> 00:40:08,600 Speaker 1: and racial trauma. If you feel like you could use support, 635 00:40:08,640 --> 00:40:12,240 Speaker 1: please check out our show notes or website this landpodcast 636 00:40:12,440 --> 00:40:16,239 Speaker 1: dot com to find resources for adoptees and survivors of 637 00:40:16,360 --> 00:40:24,200 Speaker 1: childhood trauma, abuse, foster care, and boarding schools. 638 00:40:26,880 --> 00:40:29,960 Speaker 7: Hey everyone, Leah Litman here, co host of Crooked Media's 639 00:40:29,960 --> 00:40:33,160 Speaker 7: podcast Strict Scrutiny. I hope you enjoyed and learned from 640 00:40:33,320 --> 00:40:36,000 Speaker 7: this special episode of This Land. If you're looking for 641 00:40:36,040 --> 00:40:38,799 Speaker 7: more information on the case covered in this episode, or 642 00:40:38,880 --> 00:40:41,200 Speaker 7: just want to know more about the Supreme Court opinions 643 00:40:41,200 --> 00:40:43,920 Speaker 7: this term and how they impact your life, I encourage 644 00:40:43,920 --> 00:40:46,160 Speaker 7: you to check out our podcast, Strict Scrutiny. 645 00:40:46,480 --> 00:40:47,719 Speaker 1: Each week, on Strict. 646 00:40:47,480 --> 00:40:50,200 Speaker 7: Scrutiny, me and my co hosts, fellow law professors Kate 647 00:40:50,239 --> 00:40:52,920 Speaker 7: Shaw and Melissa Marie, cover the Supreme Court and the 648 00:40:52,960 --> 00:40:55,520 Speaker 7: legal culture that surrounds it. We break down the latest 649 00:40:55,520 --> 00:40:58,439 Speaker 7: headlines and the biggest legal questions facing our country, from 650 00:40:58,440 --> 00:41:01,080 Speaker 7: miff apristone to voting rights of trans bands, and we 651 00:41:01,160 --> 00:41:03,680 Speaker 7: tell you how to fight back against a few robed 652 00:41:03,719 --> 00:41:06,960 Speaker 7: weirdos on a power trip new episodes of Strict Scrutiny 653 00:41:07,040 --> 00:41:10,640 Speaker 7: drop weekly wherever you listen to podcasts, plus bonus episodes 654 00:41:10,680 --> 00:41:13,880 Speaker 7: when the Supreme Court takes away another one of our rights. 655 00:41:15,800 --> 00:41:19,719 Speaker 9: In twenty fourteen, Adelanto, California, a small town in the 656 00:41:19,719 --> 00:41:23,200 Speaker 9: Mojave Desert, was so broke there was talk of dissolving 657 00:41:23,239 --> 00:41:28,600 Speaker 9: itself completely. Then along came John Bug Woodard Junior, a 658 00:41:28,640 --> 00:41:31,960 Speaker 9: sixty three year old, gun toting conservative hippie who had 659 00:41:32,000 --> 00:41:34,520 Speaker 9: a wild idea to save Adelanto. 660 00:41:34,960 --> 00:41:37,760 Speaker 3: So I got on old Google, I did a little googling, 661 00:41:38,080 --> 00:41:40,160 Speaker 3: and I found out the secret. 662 00:41:40,480 --> 00:41:44,239 Speaker 9: The secret, according to Bug via Google, was cannabis. 663 00:41:44,640 --> 00:41:47,160 Speaker 2: I've heard those cannabis shops make a lot of money. 664 00:41:48,120 --> 00:41:51,200 Speaker 9: What started as a simple solution to revive this small 665 00:41:51,239 --> 00:41:55,000 Speaker 9: town would lead to a series of backroom dealings, a 666 00:41:55,080 --> 00:41:59,640 Speaker 9: shocking scandal involving the FBI. I'm David Weinberg, and this 667 00:41:59,760 --> 00:42:04,319 Speaker 9: is dream Town, the story of Adelanto. Listen wherever you 668 00:42:04,360 --> 00:42:05,440 Speaker 9: get your podcasts.