Here's Where It Gets Interesting - The High Stakes of Haaland v. Brackeen with Rebecca Nagle

Episode Date: January 18, 2023

Today on Here’s Where It Gets Interesting, Sharon speaks with award-winning journalist Rebecca Nagle. Sharon and Rebecca talk about an important case that SCOTUS will rule on later this spring: Haaland v. Brackeen. Learn about the history of the Indian Child Welfare Act and how the Brackeen case was built. Rebecca uses easy-to-follow language to break down the intricacies of the lawsuit, from its beginnings as an adoption case in family court to its gathering legal momentum and multiple appeals. If ICWA is ruled unconstitutional, what dominos will start to topple? Hosted on Acast. See acast.com/privacy for more information. To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

Visa and OpenTable are dishing up something new. Get access to primetime dining reservations by adding your Visa Infinite Privilege Card to your OpenTable account. From there, you'll unlock first-come, first-served spots at select top restaurants when booking through OpenTable. Learn more at OpenTable.ca forward slash Visa Dining. A&W is now serving Pret Organic Coffee, and you can get a $1 small coffee, a $2 small latte, or like me, a $1 small coffee and a $2 small latte. Available now until November 24th in Ontario only. Woo-hoo! Hey, friends, welcome. Today's guest is somebody that you have requested that I speak with many

times. Her name is Rebecca Nagel, and she is the host of a wildly popular podcast called This Land, which deals with important issues that impact Native American tribes in the United States. Her most recent season, which is incredibly compelling, talks about a pending Supreme Court case that I have spoken about, Bracken v. Holland. She gives the entire backstory, how this case came to be, and this is a conversation that you are not going to want to miss. So let's dive in. I'm Sharon McMahon, and here's where it gets interesting. I am very excited to be chatting with Rebecca Nagel today, who you may already be familiar with.

In fact, many of you have asked me to have her on as a guest. And so here we are today. Your request has been granted. Thank you so much for being here. Oh, thank you so much for having me. I'm really excited for our talk. Well, you are an award-winning journalist, but I wonder if you can tell us just a little bit more about your background so that we can sort of lay the foundation for some of the topics I wanted to discuss with you today. Yeah, absolutely. So my name is Rebecca Nagel.

I'm a citizen of Cherokee Nation. I grew up in a town called Joplin, Missouri, and I now live in Tahlequah, Oklahoma. And my parents are, I introduced them in Cherokee, probably heard their names in English, Michael Nagel and Sarah Thompson. My grandma, Frances Polson, grew up north of Jay, Oklahoma, which is where that side of my family is from. The first season of the podcast, This Land, came out in 2019. So with an amazing, amazing group of reporters and producers hosted and reported a couple seasons of a podcast called This Land, which I think the second season of which is what we're going to kind of dive into today. I would love to hear more. First of all,

your podcast is extremely well done. It's called This Land. And I would love to hear more about the genesis for the podcast. What was it that made you feel like this story needs to be told and it needs to be a podcast? So for the second season, which is covering this federal court case called Brackeen, or now Holland v. Brackeen, but a lot of people just call it the Brackeen case. You know, I had been kind of interested in this attack on the Indian Child Welfare Act for years. And when the first ruling in the Brad King's federal lawsuit came out, I covered it for Indian country today and followed the case. And I had kind of dug around on my own. And what I realized is that what I was uncovering was bigger

than kind of what one person could do as like what I could do by myself on a freelance kind of shoestring budget and really needed some like resources for the reporting. And that also the story was like much bigger than like one article. And so I had already worked with Crooked and sort of went back to them with the idea of making a full season. And I think like what you said is absolutely correct in that podcasts are kind of unique right now, I think, in our news media and how people consume information. Because I think a lot of online stuff, people spend a very short amount of time with the material. A lot of times people don't even read the whole article, which is sad and heartbreaking to admit. But like as a journalist who's committed to the truth, that's the truth. And I think what's really

special about podcasts is, you know, I get hours with the listeners, and there's a lot of time for the story to unfold. And I think because it is such a complicated story, that amount of time is really necessary. You can't skim a podcast. Yes. Yeah, I want to if somebody is not familiar, if they have almost no background on this topic, I would love to have you just very quickly define what the Indian Child Welfare Act is and what it was meant to do. Because so much of moving forward, talking about Holland v. Bracken, depends on understanding what ICWA is. So can you take us back? Why was it passed in the first place? At the time that ICWA was passed, a big national survey found that 25 to 35 percent, so basically a third of all Native children had been removed

from their families and their tribes. There were two things going on. One is that the federal government through the Bureau of Indian Affairs literally had a program called the Indian Adoption Project where they gave money to the Child Welfare League of America to take Native kids out of their homes and place them with white families with the thinking that Native kids were just better off. What was also happening at the time, and what was actually happening in far greater numbers, is that Native children were being removed from their families by welfare workers, by social workers, for reasons like they were being raised by a grandparent instead of the biological parent because the family was poor. And so when ICWA was created, it was actually after about a decade

of advocacy around this issue of the high removals. And in that decade of advocacy, people had seen kind of the patterns of what was happening. It was actually very complex law. And so I think the easiest way to think about it is as a set of guardrails. And so if a Native kid is up for adoption or really more often in a foster care situation, it's a set of guardrails that tries to keep that child connected first to their family and second to their tribe. And so it gives Native parents protection. It gives tribes protection and the right to intervene or for the cases to be heard in their court if the kid lives on tribal land.

And it also, I think, foremost protects that child. It's important to point out that ICWA didn't come out of nowhere as you mentioned it took over 10 years of advocacy for the law to be constructed and passed but the United States has a very very long history of removing Indian children from their families. This did not begin in the 1950s or 60s. The United States engaged in a systematic removal of Indian children from their families, from their tribes. And, you know, it's actually only very recently that the federal government has begun studying and acknowledging the depth of the problem, the numbers of dead children that are buried at these residential facilities, the numbers of children that were removed from their families. So I think it's important to

point that out too, that we're talking about a law that was designed to, in part, imperfectly, as all laws do, correct centuries of children being removed from their tribes and their families. Absolutely. And I think one thing that's really important to add to that history is that when the US federal government has systematically removed Native children, child removal didn't happen in isolation. It happened during different policy eras where there was a broader attack on tribal sovereignty. And so I think we can really see these attacks on native children and native families as always happening as part of a broader attack on tribes. And so, for example, during the boarding school era, which you mentioned,

that coincided with the allotment era in which the federal government forced this policy onto tribes through which we actually lost two-thirds of our remaining land base, an area the size of Montana, through this policy that privatized tribal lands, divided it up, and then opened large swaths of that land up for white settlers. And then the adoption project in that era of these coercive adoptions and children systematically being taken out of their homes by social workers coincide with what's called the termination era, where congressional leaders literally wanted to terminate the legal existence of tribes. And so part of that policy was just getting Native people off the reservation, living away from their tribal governments so that there was no longer a need for the tribal governments. And so adoption

kind of fit in perfectly with this idea of ending the legal existence of tribes. And I would argue that the same thing is happening with the Brackeen lawsuit. It's part of this broader attack on tribes. And really, ICWA is just kind of a pawn in a broader scheme. In previous seasons of your podcast, you've talked about another very consequential Supreme Court case, the McGirt case, and then go listen to that season of This Land. Do you see McGirt as the door being opened into a new era of Supreme Court decisions related to tribal sovereignty, Native American governments?

What is your view on that? I mean, I think McGirt was a really, really important legal victory. And when you read Gorsuch's opinion, one of the things that the opinion does is it kind of looks at all of these trends that have happened in the federal judiciary, where courts will sort of look at the plain language of the law and then say, well, even though the treaty and the law clearly says this, it's still improbable that the tribe has all this land. And so we'll just make up a new rule or a new sort of standard that the tribe has to meet. And that's what the federal judiciary has been doing a long time is that when they don't like where the plain letter of the law gets them, they just make up a new rule. And so I do think that McGirt was important for that reason

for kind of naming that trend very clearly. Whether or not that's a new trend or a new era, I think really remains to be seen. Since that decision was issued, the makeup of the court has shifted once again. So after that decision came out, Ruth Bader Ginsburg passed away, and then Amy Coney Barrett was appointed. And so I think for folks who are more broadly concerned with the integrity of the Supreme Court, I think the Brackeen case is absolutely a case to watch. So that brings us to Brackeen v. Hollander. Now that it has landed at the Supreme Court, the names of the appellant are reversed. I would love to have you give us a broad high level overview of the facts of this case, because as you mentioned, it is convoluted and the context is deep and broad. So can you take us back to how did this case even get started? I think the beginning is actually a really small group of people, some corporate attorneys that have been labeled as anti-Indigenous hate groups, and this kind of small cadre of

people launching a coordinated campaign to strike ICWA down. In the past decade, the Indian Child Welfare Act has been challenged nearly as many times as the Affordable Care Act. And so those people were out looking, actively looking for plaintiffs to bring lawsuits. In walks Chad and Jennifer Brackeen. They're a white evangelical couple who live in the suburbs of Fort Worth. And as Christians, they felt self-conscious about their wealth and felt like they needed to do something to give back in order to live out their faith more fully. And they decided that they would do that by adopting and specifically by adopting through the foster care system. So they signed up to be foster parents with the goal of adopting the children in their care. The first placement actually didn't go well. And then they got a

call about a second placement. It was a 10 month old baby. They were actually told they wouldn't be able to adopt the child because of the Indian Child Welfare Act, but they agreed to the placement. About a year into the placement, the baby's parental rights were terminated, which is a very typical timeline that's actually dictated by law. A couple months after the parental rights were terminated, his tribe Navajo Nation found a a Navajo home and the paperwork started to get set in motion for him to be adopted by a Navajo family. The Braquines found a lawyer who is part of this group of people who've been attacking ICWA and he kind of put up the bat signal. And then they had a whole legal arsenal at their disposal. And so when they first kind of went to the judge and were like, hey, we don't want the baby to be transferred, the judge shot them down. And then

they came back with this corporate law firm called Gibson Dunn, which represents people like Amazon and Chevron and Walmart. And they also came back, which is crazy, with the attorney general of Texas. And they also came back, which is crazy, with the attorney general of Texas. And this is not a big lawsuit at this point. I mean, this is a custody dispute in family court. Imagine if you were getting divorced and you and your ex were fighting for how custody was going to work. And the attorney general of your state filed a motion and took a position in your divorce case. I mean, it is unheard of. And so basically,

once that legal arsenal showed up, the Bratkins won within a few weeks. And I think what is really, really notable is that the same week that they knew that they would be able to adopt this native toddler, they went and filed this federal lawsuit. And so the whole narrative that, you know, ICWA prevented them, and it took their family through this horrible legal turmoil, when we got to the facts, doesn't really add up. I think what is more correct is that because they had a really unusual amount of legal resources for family court, they won custody, and they actually won custody relatively quickly. What was the court's

reasoning for not placing the child with the Navajo placement that had been found? What happened at first is that the judge kind of told the Brackens, you know, too bad. And then what happened when they came back with all of that legal arsenal is the two tribes in which the child was eligible for membership. So he's eligible in both Navajo Nation and Cherokee Nation, although Navajo Nation took the lead. They both submitted letters to the court that they agreed to the adoption. And neither tribe would comment specifically on the case. A lot of people won't talk about child welfare cases because they're supposed to be confidential. But I think what we could see from what we uncovered is they probably saw that it was going to be a really long legal battle and that maybe that wasn't what was best for the child. You know, that even if they were able to note is that there are three non-native foster parents who are part of the Bracken lawsuit. So the Brackens have two couples that are co-plaintiffs.

And so if you look at all three of those cases, the non-native foster parents actually won in two of the three cases. And so, again, this whole argument is a little hollow. And in the one case where the Ojibwe grandma won, it took her six years. It took her six years of fighting for her to be able to adopt her granddaughter. And so what we found in our reporting by talking to caseworkers, by talking to family members, by getting our hands on court documents, is that objectively, I mean, the truth is that Native families faced more hurdles than these white foster families that wanted to adopt the Native kids. And so this idea that ICWA burdened the Bratkeens or their co-plaintiffs is a very upside down version of the truth. And so what happened next?

Basically, the lawsuit goes through the federal court system. And so what happened next? Basically, the lawsuit goes through the federal court system. And so they file that first complaint, they filed an amended and a second amended complaint, adding these other co plaintiffs, Texas is part of the lawsuit. And they take the lawsuit to this really special judge, a dude named Reed O'Connor. He declared ICWA unconstitutional in full in the fall of 2018. That decision was appealed to the Fifth Circuit. And that decision, I think the legal technical term for it would be a dumpster fire. It was a hot mess. And then that decision got appealed all the way to the Supreme Court. In January of last year, the court agreed to hear it. And then they heard oral arguments

in November. And we will probably get a decision around June. Now, isn't there another child involved in the Brackeen's case? Yes. And so what is endlessly frustrating about the second child, YRJ, is that the Brackeens sought custody of her after they had filed and amended their federal lawsuit. And then they're like, they went out of their way. They went through all of these hurdles Out of their way, they went through all of these hurdles to get custody of this other native child that nobody was placing with them. And now they're using that to try and create this false narrative that they have legal standing when the adoption case that they started the lawsuit with is over. And all of the lawsuit, all of the adoption cases that are legally part of the case are done. What do Ontario dairy farmers bring to the table? A million little things, but most of all,

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Shop great deals on Amazon. Let's talk about the legal basis for the Brackeens lawsuit. This is not just about, hey, we want to adopt this little girl. Stories make it sound like, like, we really want to adopt this girl because it's in her best interest. The Bratkins want to do much more than that. So what is their goal? I can't say what the Bratkins do or don't want to do. I mean, they might think that they're genuinely helping Native children, which I think is problematic because they're taking a position contrary to basically every Native nation in the United States, like over 500. And so, you know, I think if you want to help Native children, the best place to start is by listening to Native

people. You know, this lawsuit didn't organically raise out of some custody dispute in Texas, and the Supreme Court has a habit of taking lawsuits like this. It's part of a coordinated campaign. And what we have seen is that campaign is coordinated by an interesting cast of characters. So there are some private adoption attorneys. The private adoption industry has a track record of like a lot of industries, basically fighting regulation and fighting any kind of regulations that make adoptions harder to go through, ICWA being one of them. It was also brought by a bunch of right-wing organizations. And when we dug into the funding behind specifically the Goldwater

Institute, which has kind of led that effort, what we found is that they got funding actually to build what their funder, the Bradley Foundation, called conservative state infrastructure. It wasn't about kids at all. And that money wasn't even necessarily about tribes. It was about this idea of building conservative power through strategic litigation. And that's kind of the bucket of money that this anti-equal litigation fell into. And then the last party, which are really kind of like leading the front right now, are these corporate lawyers. And so representing the Bratkins for free is a man named Matthew McGill, and he's at a law firm called Gibson Dunn. And when we look at the arguments that they're making in this case,

Matthew McGill and Gibson Dunn have made the exact, exact, exact same legal arguments to attack tribal gaming on behalf of non-native casino developers. And so it's not like that much of a logical leap to see, oh, if they prevail in the Brat King case, then they can kind of take that victory and just port it over to fighting casinos, really just to make their clients more money. And so that's the evidence that we've found about kind of what the ulterior motives are behind the case. And one of the stated reasons why they want to eliminate or overturn ICWA is racial discrimination. Is that right? Yes. So it's kind of a big idea under what's called Title 25. But basically, there's a whole section of US laws that have to do with indigenous nations. And those laws go like all the way back to the days of George Washington, right? You know, they go all the way back to the days of George Washington, right?

You know, they go all the way back to the beginning of the United States. And so a ton of those laws treat tribes and tribal citizens differently than other groups of people in the United States. And that difference isn't based on race. It's based on the legal status of tribes. And that goes back to a lot of things. But the primary thing that it goes back to is treaties. And so the U.S. has signed over 300 treaties with Native nations. Through the same constitutional process, it signed treaties with other foreign governments.

And our legal status is a little tricky. It's a little different than a foreign government, but that we are sovereign, independent nations. A really important part of ICWA is that it actually only applies to kids who are either already enrolled in a tribe because, you know, enrollment isn't automatic with birth, are eligible for enrollment. It doesn't even apply to everyone who is Native or who has Native parents. It only applies to kids who are eligible for enrollment in a federally recognized tribe. So that's a

legal status that's not based on race. And so they're trying to say that, oh, yes, it is based on race for all of the, you know, because it's based on biology, because, you know, your parent has to be. So it's based on ancestry and ancestry is a proxy for race. They're trying to come up with all of these arguments. And the fear is, is that if the Supreme Court goes, okay, yeah, ICWA is based on race. If a native kid enters foster care, they have to be treated like everybody else. You can't have this law that treats them differently. Well, then what about healthcare? Like what about the clinic I go and I get my teeth cleaned once a year that doesn't clean the teeth of people who aren't tribal citizens? What about casinos? What about hunting and fishing

rights? I mean, if we're just a racial group, what racial group has its own laws, its own elections, its own government, its own land, its own environmental regulations? And so really, the fear is, is that this case is kind of like a domino. And if they can topple ICWA, then they can get everything else to go with it. If they can make the case to the Supreme Court that Native American is a race alone, and not a legal designation, then on the basis of what we can't discriminate on the basis of race, we have federal laws that prohibit discrimination on the basis of race, then we can eliminate all of the legal status protections over time for Native American tribes. Yeah. Am I understanding that correctly? Yeah. Yeah, that's it. One of the things that I've heard from people is that they feel really torn. In this case, they hate what the United States government has done to Native American tribes.

They hate the history. They strongly agree with the sense that the United States has not kept its end of the bargain when it comes to Native American tribes. And yet, they also feel badly for this little girl who has lived with them most of her known life. And they feel like it's unfair that she should be taken away from her primary caregivers that she has, know, that the trauma associated with removing a four-year-old from the only home she remembers and placing her somewhere else is something that they also can't stomach. They think of their own four-year-olds being taken away from them, et cetera. What would you say to people like that who agree in theory that the United States should be fair to Native Americans, but in this specific case, they feel for this little girl. I would say that feeling is the result of a very, very, very smart and very effective disinformation campaign. Because when you look at how ICWA

functions, even how ICWA functioned in these cases, is that it works to keep Native kids connected to their relatives. And that's how ICWA functions. That's what it does. I would argue that's what it even did in these cases where they're trying to tell the Supreme Court, look at the horrible things that ICWA did. But because custody cases like these really like tear at the heartstrings. It's the perfect case to stuff all of this other anti-native stuff into because people do feel that pull. And the other thing I would say is don't picture like your own four-year-old, like picture a child that you're close to, but that you're not the legal guardian of. Like I think of my niece and my nephew, like maybe you have like a best friend that you spend a lot of time with their kids.

Now imagine that that child's legal guardian can no longer take care of them. Would you feel comfortable with that kid living with a stranger, a complete stranger who had no contact with that child or that child's family? Or would you want that child to go to a relative? Would you want that child to go to you? Like, would you want that child to go to a stranger where you never see them again? Because that's what happened to the Native families in this case. That is what happened to the Native families in this case. Their relative, their blood relatives were taken away. And some of them still have contact with those kids. Some

of them don't. And I'll just tell a story a little bit of Robin. So she's the Ojibwe grandma who fought for custody of child P. When child P entered foster care because of her parents' substance use disorder, she was three and Robin had been the primary caregiver of her those three years. Like many grandparents whose kids are using and who have grandkids, she was really raising the grandkid. She had an old criminal record that was nonviolent, and so when she first went to the social worker, like days after her grandkid is in foster care,

like she didn't wait at all to be like, I can take her, I can take her, I can take her. The social worker told her no because of her record. When she finally got help from a social worker that would help her, her record had actually been expunged, but it still showed up because of a clerical error. And so Child P went through a bunch of different homes. And then finally she was placed with the Cliffords. At one point, the Cliffords tried to argue that Robin shouldn't have any contact with her grandchild. And in an affidavit they submitted to court, the evidence that they used that Robin shouldn't have any contact with her grandchild was that she gave her grandchild too many gifts. gave her grandchild too many gifts. And those gifts were evidence that Robin had bad boundaries and she wasn't inappropriate, even for supervised visits, shouldn't have contact with her grandchild.

When Robin finally won custody of Child P after Child P had been in foster care for three years, Robin couldn't adopt Child P because the Cliffords sued the county. And that lawsuit took another three years. And so by the time the lawsuit resolved and the Cliffords were still fighting for custody, Child P had lived with her grandmother for the majority of her life. And she had lived with the Cliffords for 18 months. for the majority of her life, and she had lived with the Cliffords for 18 months. And so the behavior of these foster parents, if what they really want is what's best for these children, the evidence doesn't support that. You can think, okay, if a child spends time with a foster family, that's where they should stay. If that's what you believe, the problem that you have isn't with ICWA, it's with foster care. I mean, the overwhelming majority of children who spend time with a foster family are not adopted by that foster family. And those children being young is not exceptional. And those children spending about a year with those families is also not exceptional. It's actually average.

about a year with those families is also not exceptional. It's actually average. And so if you're saying that all those kids should be adopted by their foster parents, you're saying that we shouldn't have a foster care system that prioritizes placing any child first back with their biological parents if those parents are able to like get their act together and get services and, you know, meet what they're supposed to do. Or those children's relatives, they should just be taken away from their relatives because they've spent eight months, you know, and they're supposed to do. Or those children's relatives, they should just be taken away from their relatives because they've spent eight months and they're two and that's like half their life. That's everything they remember.

And so I think this narrative that children should stay with foster parents, it's really perverse. It's not what the research says is what's best for foster children. The research really says that kinship placements are best. It's not what policy looks like really anywhere. That's why I say it's a disinformation campaign. It doesn't even make logical sense. But because we're talking about the life of a

two-year-old, because we're talking about a little kid, it's really easy to kind of pull at the heartstrings in a way instead of look at how the conversation is being manipulated, you know? And so I think it's really important to just remember that for all children, not just Native kids, all children, the research says that kinship placements are what is best for those children. And every child, every child whose custody case is now wrapped up in this federal lawsuit, all four of them, all four of them had a blood relative that wanted to adopt them. Every blood relative got pushback, whether it was from a social worker, a family court judge, or the foster parents themselves. Every plaintiff who is part of this lawsuit

fought blood relatives, some to kind of unethical extent, to have custody of that child over their blood relatives. And only one of those Native family members won custody. And again, it took her six years of fighting. So if we're saying the heartache here is the Brackens and that's the real like miscarriage of justice or the real heartbreak. To me, that's a real perversion of the truth. That's a great point that if you are making the claim that we just want what's in the best interest of the child, then the initial motivation to seek custody of a child that was not going to be placed with them, that had a relative who was capable and willing of adopting them, that if they truly who was capable and willing of adopting them,

that if they truly just wanted what was in her best interest, they would have allowed her to be placed in her kinship placement and they would not have fought to terminate the rights of her kin, her family, to see her. Yeah. I mean, in the case of YRJ, if the Bratkins had done nothing, had done nothing, if all they had done in that case was nothing, that baby would be on Navajo right now. She wouldn't be part of an ongoing custody dispute. She would just be living with her great aunt. And the case would have been over. I mean, I read the court testimony of that hearing, and there was like one last piece of paperwork that Texas was being slow on.

And then she was going to go live with that great aunt. You know, like it was that close when the Bradkeens won that initial court decision. And if they had done nothing, that kid would be with a relative right now. Have the Bradkeens done any media? Have you seen interviews with them about this case? Yeah, they did interviews with The Atlantic and with The New York Times early on. And then as the case went to the Supreme Court more recently, they did an interview with Fox, and that was the only one. I will say in the interviews that they have done and that their lawyers have done, I've consistently caught them saying things that aren't true or that are kind of like half true. So in the Atlantic article, they talk about how they had no idea about EQUA and

that they couldn't adopt the first kid when actually it's from Jennifer's blog that we know that they knew up front and that they agreed to it. And so there are lots of like little lies like that in the media that I've seen them tell that do make them appear more sympathetic that aren't true based on our reporting. And so I think that's another big part of the disinformation campaign is sort of telling this slanted story and telling the story that's not totally true. This is a hard story. I don't think that that conflict is the Indian Child Welfare Act. I think that that conflict is people using the foster care system to adopt. And I think that we just need to have really hard conversations about that because you look at

people like the Bratkeens and it's like, well, they went in custody just because they had like really, really expensive lawyers. Parents in the child welfare system and family members in the child welfare system, they don't have lawyers like that. And so it creates the situation where it's really unbalanced. I just think we have to really step back and think about the ethics of that and really the ethics of it in terms of what's best for the child. You know, the kinship, the research that says that kids do best with relatives, it's like mental health. Like it's, I mean, it's behavioral health.

They're less likely to reenter foster care. They spend less time in foster care. They get adopted sooner. I mean, it's just like the list goes on and on and on. And so if we know that kids do better, both in the short term and long term with relatives, why would we support policies where kids are being separated from their families? One last question before I let you go. We could probably talk about this all day. What in your estimation, after having done such extensive, incredible reporting on this case,

which again, as you mentioned, is actually multiple cases that are combined into one, what do you think is the most likely outcome at the Supreme Court? I do think it's pretty likely that the plaintiffs in Texas will prevail and that the intervening tribes will lose. I think, unfortunately, what we saw during oral arguments is that there were a number of justices who had really good questions and were really skeptical. You know, I mean, Gorsuch was one of them who was just like, okay, so we're going to throw out healthcare and all of, you know, like, what are you going to do about like these eight different things if you want to say this is unconstitutional? Kagan had a great quote where she was like, well, if you don't like ICWA, I think you just need to go across the street and talk to Congress. Like,

we're not where you come if you just don't like a law. And then you had justices like Kavanaugh, you know, just saying these kind of incendiary kind of dog whistle comments like, well, can you know, we passed a law that only white people can adopt white children. And again, like I said, it was not based on race. And that's not how the law works. The one justice that seemed interestingly in the middle was Amy Coney Barrett. The way that she seemed in the middle is that she asked very specific questions about how the law works. And she actually asked one question, I think, four times to each lawyer. And so she wasn't kind of off in the kind of political rhetoric world like the other conservative justices. She was kind of thinking, it seemed, about the law. And so maybe

you could get a narrow opinion if you got a Barrett opinion that might strike ICWA down partially or might still strike ICWA down entirely, but it doesn't do as much damage to the rest of federal Indian law. But there's two arguments that they're making that could do a lot of damage. We talked about the race-based argument, and they're also making this argument more broadly just that Congress doesn't have the authority to pass this type of law in the first place. And Congress has passed a lot of laws

that have to do with tribes. And so if those other laws can't stand, that could also have a big impact. And so we'll see. I mean, I think after I read the Castro opinion, I became very pessimistic about this case, because Kavanaugh just went on this tirade about states' rights in this way that was like very clearly not really based on anything other than how he feels about tribes and state rights. I mean, his legal reasoning was so thin, it didn't make sense. And then, you know, he got enough justices to go along with that, that he got a majority. And so if the Supreme Court is sort of in that the same place that they were in with

Castro, I think we could get a decision that does a lot of damage. It's interesting, too, because Amy Coney Barrett has adopted children. Yeah, actually, three of the justices have adopted children. Three of them. I didn't know that. Who are the other ones? Clarence Thomas. He adopted a relative. I think it's a nephew.

And then Roberts adopted a child or children from Ireland. Interesting. You don't hear about Americans adopting from Ireland very often, Rebecca. That is unique. Yeah, we fact-checked that for the podcast, but I can't remember the whole story behind all of the adoptions. But yeah. Yeah. And so I think sort of as we were talking about, I think adoption still has this narrative in the United States as being always altruistic. And so I think it's really easy to position the plaintiffs as being sympathetic, even when you kind of dig into what they did, a lot of their behavior is concerning. Well, I think if you want more

information about this, you want more, more in-depth analysis, you want more facts, you want more of this story, you can listen to season two of This Land, hosted by my guest today, Rebecca Nagel. Thank you so much for being here. This has been absolutely fascinating. Thank you so much for having me. Oh my goodness, so much information that has been difficult to come by. It has not been widely reported, except for Rebecca Nagel and her team working on this land. So if you're interested in more about this Barkeen case, you can listen to season two of This Land wherever you get your podcasts. I'll see you again soon. Thank you so much for listening to Here's Where It Gets Interesting. If you enjoyed this episode, would you consider sharing

it on social media or leaving us a rating or review on your favorite podcast platform? All those things help podcasters out so much. The show is written and researched by executive producer Heather Jackson, Valerie Hoback, and Sharon McMahon, edited and mixed by our audio producer Jenny Snyder, and it's hosted by me, Sharon McMahon. We'll see you again soon.