Will SCOTUS Take Native Children Away From Their Families?
Mary Harris: Today, I’m going to do things a little differently and let my guest introduce herself.
Professor Elizabeth: Nabi to Allawi and Bovey and of America and how I Elizabeth Reese not not be a winger away on a move. Hi, I’m Professor Elizabeth Reese I.
Mary Harris: This is Elizabeth Reese, and there are a couple of things you need to know about her. The first is that she’s a lawyer. Actually, she’s a law professor over at Stanford. The second is that Elizabeth is indigenous.
Professor Elizabeth: My English name is Elizabeth. Bovey is my name in Taiwan. My traditional language. A name I received when I was a baby. To identify me as part of my community. And it translates to, well, a flower in English.
Mary Harris: For Elizabeth Yam Povey, these two identities Indian lawyer, they are intertwined.
Professor Elizabeth: There is a phrase that often gets used, which is that lawyers are like the modern day warriors for Indian Country. And I think that’s unfortunately very true that it has been the laws and legal systems within the United States that have done the work of conquest, especially in the last few hundred years. And so that has made lawyers sort of the front line fighters in tribes ability to keep their sovereignty, to keep their territory and keep anything else that might be meaningful to them as self-governing nations.
Mary Harris: I called up Elizabeth because I wanted her to explain this case that’s been characterized as the next frontier in tribal sovereignty. It was argued in front of the Supreme Court last week. It’s known as Brackeen v Haaland.
Professor Elizabeth: I must have first heard about this case years ago. You know, so long ago that I it’s not even that clear moment in my mind.
Mary Harris: It’s like you’ve always known it.
Professor Elizabeth: It does feel a little bit like I’ve always known about this case.
Mary Harris: Brackeen v Haaland seeks to dismantle what’s known as the Indian Child Welfare Act. That is a law that passed for decades back with the intent of keeping Indian kids with Indian families. White families now argue this law keeps them from providing for children in need. But Aqua, as the law is known, it’s got a history behind it. Evidence that for decades, indigenous kids were taken from their families, sent to special schools, or just off the reservation.
Professor Elizabeth: I don’t think there is a native person from a reservation in this country who doesn’t know of some kids either. You know, your grandmother’s generation, your grandma generation who either went to boarding schools or were adopted.
Mary Harris: By a white family.
Professor Elizabeth: Yeah, I know the statistics about the time that the Indian Child Welfare Act was passed.
Mary Harris: This was 1978, right?
Professor Elizabeth: Yes, in 1978, there’s this really heart wrenching report and set of hearings that come up that lead to the passage of equal where it was something like between 25 and 35%. Right. So like one in three Native kids was being adopted or taken away from their families.
Mary Harris: When Congress was crafting Aqua, they heard testimony from an Indian mom from Nevada. Her children had been taken from her. Her nine year old daughter even spoke, telling lawmakers she’d been abused in foster care. The little girl was so emotional. The committee only let her answer one question. And 1978 was not that long ago.
Professor Elizabeth: It really wasn’t. And I think it’s really just an indication of how necessary the Indian Child Welfare Act was, were it not for the Indian Child Welfare Act. It’s very possible the government could have continued on some of those policies that were taking away generations of kids and would have destroyed tribal communities. And so this is a law that’s fundamentally intertwined with our survival as a people, because you don’t have you know, you can’t have a nation if it doesn’t have citizens.
Mary Harris: Today on the show why this case is about more than civil rights for Indians. It’s about sovereign rights. I’m Mary Harris. You’re listening to what next? Stick around.
Mary Harris: Can you explain what the Indian Child Welfare Act is and what it does? Yeah.
Professor Elizabeth: So the Indian Child Welfare Act, or AGOA, as we we often call it, is a law which largely protects Native kids and Native families, trying to keep them together, if at all possible, by saying that in either private adoption proceedings or in state courts that involve adoption, there should be first a preference for other members of the child’s family to try and keep kids with their families next for other members of their tribe. And then after that, for other Indians who are citizens of of any tribe. And then finally, only if they have taken active efforts to try and keep that child in one of those circumstances first, then they can be adopted by non-Indian families.
Mary Harris: Like we said before, in the decades leading up to Equus passage. Indian kids got mistreated by government officials at the state and local level. It created this pressure for federal officials to act.
Professor Elizabeth: Yeah. So I think there’s really two major things leading up to the passage of ICWA. One is actually a little bit earlier, but that’s still going on into the mid mid-twentieth century, and that’s this project that started in the 19th century to open Indian boarding schools that were run by the federal government, where the idea was to forcibly take Indian children from their families and raise them in these boarding schools where they were prohibited from speaking their language. They were cut off from their families and communities. Their culture was, you know, adamantly discouraged and they would cut their hair and quote unquote, kill the Indian, saved the man. And these boarding schools were in place for a long time and were run by the federal government and are a really dark period in our history.
Professor Elizabeth: And then we also had this policy around the 1950s called the Indian Adoption Project, which encouraged Native kids to be taken away from their families and placed with non Indian families. And so it became sort of a common practice for folks, particularly within the state social services regime, to like target native families, to sort of surveil for this question of whether or not they were fit parents and then to look for reasons to take kids away.
Mary Harris: It’s worth noting that even today, Native children are still more likely to be removed from their homes than other kids. Sometimes that’s because social service agents see signs of poverty as evidence of abuse. Some native communities also practice a more communal kind of child rearing, say an aunt watching the kids. And that may read as neglect to a social service worker. In any case, once kids have been separated from their families, it is supposed to ensure that family courts do everything possible to keep them within their tribal communities. But in the case of the Brackeen family, the people at the heart of this Supreme Court case, that is not how things played out.
Speaker 3: The message we want to prevail is that it’s the best interest of the child. That should be the greatest consideration. We want all children. We want laws to support all children to be able to find loving permanent homes. We didn’t.
Professor Elizabeth: So Chad and Jennifer Brackeen decided that they wanted to adopt a child, but they also signed up to be foster parents, which is a different thing. So, you know, traditionally it’s understood that foster placements are temporary and that hopefully kids should be able to be reunited with their parents, if at all possible, even if they’re temporarily taken away and put in foster care. But the Brackeen, you know, they decided to foster children, but also try to do sort of foster to adopt. So sort of use this as a way to also adopt children who had been at that point sort of temporarily taken away. And so what happened in this case is that there is a child, a native child, who they fostered and then tried to adopt.
Mary Harris: And they were told at the beginning, you’ll probably not be able to adopt this child. Right.
Professor Elizabeth: Right. They were they were told at the beginning that because this child was an Indian child, that it would make it less likely that they would be the most desirable placement, because, you know, any court, considering what’s best for the child, would prefer to keep them with their family, with their tribe, or with another Indian family before placing them with a non-Indian family like the break ins.
Mary Harris: But they decided to go for it anyway. And what happened then?
Professor Elizabeth: Right. So they decided to go for it anyway. And they also. Decided to fight the law. So part of what’s very frustrating about this case is that in the end, the raccoons were not harmed by this law. They were able to adopt their child, even though the tribe actually fought for a placement with another Indian family, specifically another family from the child’s tribe. They actually overcame the efforts to move the child to another Navajo family and instead were able to hold on to custody of the child.
Professor Elizabeth: But the experience having the law come up at all is something that the Bracken’s felt like was wrong, that they should not have to go through this process of trying to see if there’s another Indian family first, because that’s discriminating against them as non-Indians or because they are white. And so based on that, they have challenged the law, even though they already have custody of their child like that, adoption is over.
Mary Harris: When they also took custody of this child, sister. Right.
Professor Elizabeth: Yeah. So after they filed this case in federal court, the same woman who gave birth to the little boy they adopted gave birth to another child. And they were seeking to adopt her as well.
Mary Harris: They wanted to keep the two kids together.
Professor Elizabeth: Right. And there’s like to frustrate, you know, two other factual points about the adoption of the other child. The girl y RJ, that are notable. One is that there’s family, you know, not just another Indian family, but members of her family back at Navajo that are fighting for her, that want her to grow up with them. And that as this case has been bouncing around through the state court system in Texas, that they have generally sided with the Brackeen over her own family and placement on a reservation, which, again, like this isn’t the world where it was good law, right where it is being applied. It’s just not even protecting Indian kids and their families as much as we might want.
Professor Elizabeth: But, you know, not only that, when they brought this this challenge, the daughter hadn’t even been born yet. And one of the things that they’ve now showed up in this case, which technically this this child is not a part of this case. She was not even born when they filed this lawsuit. They’re trying to bring in the facts of those case and also making arguments that are very hypocritical. Like one of the things that they keep saying is that it would be good for her to grow up with her brother because it’s someone who looks like her, someone who might understand her experiences as a native person. And it’s like part of my reaction is like, can you not hear yourself? Can you not hear that? Like there’s an Indian family, her own family, that wants to raise her and that that argument is exactly why it exists.
Mary Harris: It’s interesting you talk about this being about the white families rights to the children. I’ve also heard it. Phrased it. It’s about the children’s rights to be with these white families that somehow the Indian Child Welfare Act prevents Indian children from being with families. Who want to care for them. And I wonder what you would say to someone who’s maybe formulating that argument in their mind. Yeah, I.
Professor Elizabeth: Think two things. One, a reminder that this is that AGOA is a law, that it is not this rigid set of Indian kids can only be placed with other Indian families or other members of their community. Like, that’s not how it works. It’s a law that allows for flexibility to always consider what’s in the best interest of the child. These are just, you know, guideposts. So that’s the first thing I’d say.
Professor Elizabeth: The other thing that I would say is that it depends on whether or not you buy into this overarching logic of like the colorblind way of looking at things, being what’s really fair and equal. So if you know, if you’re looking at these Indian children and saying what it means to treat them equally and fair, to treat them as if they’re not Indian, as if to treat like all children, like they’re the same, then I can see how you’d be persuaded by that logic that this is about making sure that children are treated equally.
Professor Elizabeth: But I think, you know, we’ve recognized that you know, what it means to be treated fairly and equally in this country can be very complicated. And that when it comes to these Indian children, are raising their Indian identities and pretending like those don’t exist and they don’t matter for making these decisions about what’s in their best interest. Like, that’s that’s actually a taking like, that’s taking something away from them by ignoring this crucial part of who they are.
Mary Harris: After the break, how this case became about much more than a simple custody dispute.
Mary Harris: While the story at the center of Brackeen v Holland is about one family’s choices. By the time this case reached the Supreme Court, it was making some very broad arguments. For example, lawyers for the Brackeen argue that the federal government is overreaching by telling states how to handle adoptions. But they also ask the justices to rule that the Indian Child Welfare Act creates a racial preference in adoption cases. The problem here is that tribes have historically been viewed as political entities, ruling that being an Indian is a racial classification instead could undermine tribal sovereignty. The principle that makes native communities independent nations.
Professor Elizabeth: This case terrifies me. Because. You know, the idea that tribes are governments, right. And that you can have a group of persons who have the. You know, Right. And power to vote for their own government. Who can live on land set aside for them by the federal government. If the Supreme Court holds that that is a racial classification, then the entire system, the set asides of land, the other system that supports tribes like health care and the very existence of tribes as sovereigns starts to look like something we would not allow.
Professor Elizabeth: Right. Like, can we imagine the U.S. government saying we’re just going to, you know, set aside this land only for black people? You know, like we would be like, what? Like what? You know, this is. And so the the entire coherence of tribal sovereignty rests on this recognition that it’s because tribes are governments, because, you know, the U.S. entered into government, to government negotiations with them and and signed agreements in the form of treaties. And from that comes comes everything comes this this baseline concept of tribal sovereignty that’s persisted to this day. And so the idea that they would that would be sort of undermined by holding that this is a racial category is certainly not an understatement whatsoever.
Mary Harris: What do you think would happen next? As if if this case went in the way you fear the most?
Professor Elizabeth: So it really depends on how the court writes its opinion. But it’s very hard for me to imagine under either this equal protection challenge or under this other constitutional challenge, this or under that is to the scope of Congress’s authority to pass laws regulating Indians under Article one, like a loss under either of those theories would basically rework some of these fundamental principles of Indian law and lead to countless other cases trying to figure out, okay, is this like Iowa? So it’s also unconstitutional or is it not? You know, is this this law which refers to Indians or defines Indians in this way, is that also a race based category or not?
Professor Elizabeth: You know, for health care for her Bureau of Indian Education Schools, What about for the whole existence of the Bureau of Indian Affairs? You know, there’s all of these different places where every, you know, instance of Indian in the federal code would need to be re adjudicated and were a challenge to, you know, things like tribal trust, land, tribal reservation land itself might be brought by folks who say that that is in and of itself of racially discriminatory. So when I think about a potential loss on either of those theories, I see the slew of cases that will follow.
Mary Harris: One of the more interesting details of this Supreme Court case has to do with the law firms who brought this case because the Brackeen are being represented pro bono by a firm named Gibson Dunn that has a history of being involved in tribal affairs. GIBSON Dunn represents Energy Transfer, the company behind the Dakota Access Pipeline that indigenous people protested at Standing Rock. They also work with Shell and Chevron, two massive energy companies. So there are people who think all of this can’t be a coincidence. Some indigenous rights advocates claim that Gibson Dunn took this case to erode tribal sovereignty so its clients could have access to the minerals like oil that lie within tribal lands. For what it’s worth, Elizabeth does not totally buy that argument. Her take is that these lawyers are simply conservative true believers.
Professor Elizabeth: You know, there has been allegations that this is really about the oil. You know, it’s really about the oil. It’s not about the kids. And I think that that sort of misses that. This is actually also quite similar to the cases about affirmative action for the court, that, you know, there there is no you know, without there being sort of a secret moneyed interest motivating things. It is also been a project of the conservative legal movement in this country to advocate for a quote unquote, colorblind constitution that doesn’t discriminate against white people. And in a lot of ways, this case is also just like one of those and just another part of the constellation of laws that get folks on the you know, amongst the conservative legal movement, like really upset because they view it as wronging white people on the basis of their race.
Professor Elizabeth: And that that sense of injustice, like, I think that’s kind of enough like to to bring this case. I think if it didn’t have the implications it has for the rest of tribal sovereignty, like we’d still be here because this would still be viewed as like a quote unquote special right for Indian people or special treatment for Indian people that is seeing itself as unjust by some people in this country.
Mary Harris: Did you get any indication from oral arguments what the court might be thinking here? Because I know that Clarence Thomas, really conservative folks have speculated that he’s no fan of the Indian Child Welfare Act. But it’s interesting because some other conservative justices, like like Neil Gorsuch, he can rule in surprising ways when it comes to native issues. So what did you see at oral arguments that made you think, huh? There’s. This is maybe how this might come down.
Professor Elizabeth: Yeah. So Neil Gorsuch has always been a pretty reliable vote when it comes to issues involving Indian Country or tribal sovereignty. I describe it as I feel like he gets it, like I feel like he gets federal Indian law. He understands the precedent here. He’s from a circuit that’s, you know, very much in the heart of Indian Country before he was appointed to the bench. And so I heard things from him that I think support that he is likely to rule in favor of the idea that it is constitutional. The real question is with, you know, him. And then I think similar things coming from the three Democratic appointees to the court, then that’s four. So there’s a question of was there a fifth vote to uphold was constitutional.
Professor Elizabeth: And my sense is that at least from oral argument, there was a lot of attention paid to one very particular part of this law, and that’s the placement preference, not for other members of a tribe’s family or their or their community, but the placement preference for other Indian families from other tribes as well. And so I wouldn’t be surprised if we got an opinion that looked more precisely targeted at that provision and what that provision means and potentially striking that provision down. And the court also had to engage in analysis about whether or not that provision is severable from the rest of the law. And so it’s possible they could just target that, but uphold the other two placement preferences for other members of the child’s family or for other members of the tribe.
Mary Harris: For Elizabeth, the knowledge that only part of the Indian Child Welfare Act could be struck down is still cold comfort. She says, If you want to see what happens when you separate Native kids from their families. Just look at the adults who grew up in the era of the Indian Adoption Project. In the last few years, they’ve started speaking out.
Professor Elizabeth: You know, we talk about it almost like the lost generations of of folks who were taken away. And one of the. Sort of really tragic things. And this is also sort of like how, you know, that the arguments that this is what’s best for the kids are like. You know, kind of crap like, you know, that is that if this is what was best for the kids, then the kids who were raised by these families would all be lining up to say, Oh, my gosh, thank you for taking me away from my tribal community and letting me grow up in a white middle class house. But that’s not what they’re doing.
Professor Elizabeth: You have all of these kids who are coming forward who are talking about how hard it was to grow up without this sense of identity and who they were or disconnected further from their community. And that there was this always this really, you know, huge hole that, you know, they can never fully get back because they have been, you know, taken away at such young ages and because it’s, you know, as much as they are working incredibly hard to rebuild those ties and communities and tribes are are trying to welcome them home. You know, you will never get back that childhood that you were denied of growing up with in your tribal community and with a tribal identity if that wasn’t protected in the first place.
Mary Harris: Elizabeth Reese, I’m really grateful for your time. Thanks for coming on the show.
Professor Elizabeth: Thank you so much for having me.
Mary Harris: Elizabeth Hidalgo Reese is a scholar of American Indian tribal law, federal Indian law and constitutional law. And that’s our show. If you’re a fan of what we’re doing here, what next? The best way to show us some love is to go on over and join Slate Plus. You can do that at Slate.com. What next? Plus, that lets the bosses know you’re a listener. So just sign up. Like right now. What next is produced by Elena Schwartz, Carmel Delshad, and Madeline Ducharme. We are getting a ton of support right now from Anna Phillips, Jared Downing and Victoria Dominguez. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. Okay, you’re back in this field. Bright and early tomorrow.