Strict Scrutiny - BONUS: This Land on the Indian Child Welfare Act

Episode Date: June 24, 2023

Last week the Supreme Court made an historic ruling upholding the Indian Child Welfare Act. Rebecca Nagle, host of Crooked Media’s This Land podcast, takes us inside the courtroom in this special bonus episode to break down the decision, how we got here, and what it all means. Follow us on Instagram, Twitter, Threads, and Bluesky

Hi, everyone. On the heels of last week's Supreme Court opinion in Halland v. Burkine, we're excited to share a special episode of the podcast This Land from Rebecca Nagel. Rebecca is a journalist and citizen of Cherokee Nation who covered this case extensively on the second season of her show This Land. She joined us last week on Strict Scrutiny to discuss the opinion. As you all know, we had a great conversation about the court-specific reasoning, the assignment to Justice Barrett, as well as what might happen in the future with the Indian Child Welfare Act. And in this episode, you'll hear her go even deeper with one of the lawyers who argued the case and impacted individuals. Check it out, and if you like it, make sure to listen to This Land wherever you get your podcasts.

This episode is supported by FX's Reservation Dogs. From Sterling Harjo and Taika Waititi, this season, the Res Dogs find themselves stranded in California and have to figure out their way back home. The series is a breakthrough, an Indigenous representation on television, both in front of and behind the camera. This first-of-its-kind creative team tells a story that resonates with the Indigenous community and their lived experience. FX's Reservation Dogs, streaming August 2nd, only on Hulu. Last Thursday, at 9 a.m. Central Standard Time, I sat down at my computer. With my browser open, I was waiting for the decision in Holland v. Brackeen to drop.

There are a bunch of days, mostly in June, the Supreme Court issues opinions. You don't know which day which opinion will come out until it's out. The first opinion posted. It wasn't Brackeen. But then... Okay, Holland v. Brackeen is out. The first opinion posted. It wasn't Brett Keene. But then... Okay, Holland v. Brett Keene is out. My chest flooded with stress. And it's by just a spirit, which is actually possibly good. That's possibly really good. I started hitting refresh on the Supreme Court's opinion page until a link popped up. Here's the opinion. Here's the opinion. I clicked on it.

And started reading. This case about children harming the most vulnerable. Once I saw Barrett's name on the majority opinion, I thought we had probably avoided catastrophe. But I still assumed at least something, some part of the Indian Child Welfare Act had been struck down. There was never a time I thought the plaintiffs would lose completely. But then... Oh my god, I cannot. I can't believe it. I can't believe it. This is not what I was expecting. That is so awesome. That is so awesome. That is so awesome.

In this episode, I'm going to walk you through what the opinion said and what it means for Native families and tribes. But first, I have to take you back to a cold day last fall. On the morning of Wednesday, November 9th, I woke up at 5 a.m. In the dark, I got dressed, checked the batteries in my recorder, called an Uber, and ignored the knot in my stomach. That day, the Supreme Court was scheduled to hear arguments in Holland v. Rakeen. When I got to the court, it was still dim and cold outside, but the line to get in was already long. What time did you get in line this morning? We were here at about 445.

Members of the public can watch oral arguments at the Supreme Court, but they can't reserve a seat. To get in, you have to stand in line for hours. Wrapping around the corner of the white marble building, people huddled in the cold. My name is Dan Leverance. I'm a member of the Iowa tribe of Kansas and Nebraska. My name is Samantha Maltese. I'm a member of the Wampanoag tribe of La Quina.

My name is Vernon B. Abeda. I'm the governor for the Pueblo Basleta. We travel from New Mexico. My name is Kimmy Wendt-Hemingbird, and I'm Muscogee Creek. I came from Oklahoma today. My name is Fawn Sharp. I serve as president of the National Congress of American Indians and vice president of the Quina Indian Nation. When I asked people why they traveled to the Supreme Court that day, many had personal stories. Like Fawn Sharp, who tried to adopt Native siblings but was turned down at first for a white family.

I had to go through two levels of appeal. They didn't think it was in the best interest of my children to be placed in a home on an Indian reservation. They would prefer them to be in suburbia in Salem, Oregon, and that that was in their best interest. People also told me about how the Indian Child Welfare Act, or ICWA for short, kept their family together. I entered care when I was nine and I was placed with my maternal aunt. And to you, what's at stake in this case? Everything. Every child deserves to have the same future that I get to live every day. I asked that question to a bunch of people, and I kept hearing the same answer.

What's at stake for you in this case? Everything. Everything's at stake for us. Everything's at stake. Tribal sovereignty. At the bottom line, tribal sovereignty. When we talk about our youth, we're talking about the future of our tribal communities. The stakes are literally incalculable. This is not a case about winning for the other side. This is a case about burning the world down.

How does it feel to know that the future of federal Indian law is up to these nine people? Feels wrong and kind of terrifying. You're listening to This Land, a podcast about the present-day struggle for Native rights. From Crooked Media, I'm your host, Rebecca Nagel. Goheen Dawatong Tlekayetli Keila, citizen of Cherokee Nation. In season two, we followed how a string of custody battles over Native children turned into a federal lawsuit, threatening everything from tribal sovereignty to civil rights. In today's bonus episode, we're bringing you the Supreme Court's ultimate decision and the story of how it happened. ICWA was passed in 1978 after Congress recognized between a quarter and a third of all Native kids had been removed from their families and tribes. The law is meant to prevent family separation in Native communities. But recently, ICWA became a target. An odd group of special interests, including adoption attorneys, corporate lawyers, and right-wing groups, decided they wanted to strike ICWA down.

In the last decade, the law has been challenged nearly as many times as the Affordable Care Act. This particular lawsuit started when that group of special interests found a white evangelical couple living in the suburbs of Dallas. That couple, Chad and Jennifer Brackeen, wanted to adopt a Native American toddler. But the child's tribe found a Navajo home. And according to ICWA, that home was where the kid should go. Along with the state of Texas, the Brackens sued the federal government, saying ICWA is unconstitutional because the Indian Child Welfare Act discriminates against non-Indians on the basis of race. This is Matthew Fletcher, law professor and citizen of Grand Traverse Band of Ottawa and Chippewa Indians.

You heard his voice earlier. He was also at the Supreme Court that day. Waiting in line. Fun times. As we've discussed on the podcast before, the normal rule that U.S. laws can't treat people differently based on race doesn't apply to tribes and tribal citizens. That's because Native nations are political, not racial groups. Lots of statutes going back to the very first Indian statute of all time, 1790, will say things like this statute applies to Indians. So it would be really disruptive to the point of catastrophe to say that a statute that applies to Indians is unconstitutional. Two other couples joined the Brackeens lawsuit. They all say ICWA discriminated against them because it wouldn't let them adopt Native kids.

Here's what's wild about that claim. Except for one case, all the foster parents actually got custody over native relatives who also wanted to raise the kids. Those foster parents and Texas had more than one reason they said ICWA was unconstitutional. Their second big argument was that Congress doesn't have the authority to pass a law like ICWA in the first place. But Matthew Fletcher says, what that misses, of course, is that Congress can deal with Indian child welfare because of the special relationship that tribes in the United States have. In Indian affairs, there really are no states' rights. Their third argument is more narrow than the first two. It's called anti-commandeering.

That's a legal theory that basically says the federal government can't tell states they have to enforce federal laws. So when tribal leaders and advocates say the stakes are... Everything. Everything. Everything's at stake for us. That's because those legal theories strike at the foundation of tribal sovereignty. If ICWA can't treat Native Americans differently based on race, what about the clinic where I get my health care? What about

tribal casinos that operate where non-Native companies can't? If Congress doesn't have the constitutional power to protect Native kids, does Congress have the power to protect our land, our water, our way of life? The fear is that this case is like the first upright domino in a long row. If they can topple ICWA, they can topple everything else. There is growing evidence that the special interests behind this lawsuit see it that way, too. After a reporting connected the dots between the Brackeens' pro bono corporate lawyer and the casino industry, he helped file a second lawsuit. In that case, he claimed tribal gaming in the state of Washington was unconstitutional racial discrimination because tribes can operate casinos where his client can't. The alleged harm in this case is more straightforward than Brackeen.

It's money. All of this was on my mind when I walked into the Supreme Court last November. After checking in at the public information office and going through security twice, I was led into the courtroom. I had never been inside before. I was surprised by how small it was. The little room was still grandiose. Large white marble pillars surrounded our chairs. On the far end of the room was a tall red curtain. It stretched from the floor to the ceiling. Without making a noise, the fabric parted when the justices entered the room. We will hear argument this morning in case 21-376, Holland v. Bracken and the consolidated cases. The first lawyer to speak was Matthew McGill from Gibson Dunn. He represents the foster

parents, including the Bratkeens. Thank you, Mr. Chief Justice, and may it please the court. This is happening now for a second time to the Bratkeens as they try to adopt YRJ, who is now four and a half years old. Not even YRJ's deep attachment to the Bratkeens after being part of their family for four years is sufficient. But McGill was quickly interrupted. What do we do about your standing problem? That's Justice Neil Gorsuch asking about standing. Standing is a legal term that means you have the right to file a lawsuit. You've sued federal officials, not the state courts who actually are tasked

with operating. I think my answer to that, Justice Gorsuch, starts with the traceability standard, which is de facto causation. And then I would say- No federal official can dictate to a state family court what to do, can he? I'm sorry, I did not hear the question. Can any federal official If the plaintiffs don't have standing, the whole thing goes away. You can't sue the federal government just because you don't like a law. You have to prove that that law harmed you and that a court ruling in your favor fixes that harm. As we've talked about on this podcast a lot, there are big reasons to question the standing in this case. Other justices joined in. I'm going to list a series of statutes and I just want a yes or no.

Sotomayor had a very specific point she wanted to make, and she had a clever way of getting at it. The statute protecting service members from default judgments. Does Congress have the power to pass that? The 1799 Trade and Intercourse Act. How about a law from 1888 setting forth certain evidence that an Indian woman could use in state court to prove that there was a common law marriage. It's that it would be an anti-commandeering violation. That was the lawyer representing Texas. He told Sotomayor that many of the statutes she listed were unconstitutional. What that did was help identify and reinforce to the court.

Matthew Fletcher again. That even a narrow opinion in this case, striking down some or parts of the Indian Child Welfare Act, has vastly broader consequences. Justices Kagan and Jackson also asked Texas and McGill some tough questions. At this point, it looked like four justices were skeptical that ICWA was unconstitutional, but the tribes needed five to win. I didn't see much more support other than those four from the rest of the court.

Congress couldn't give a preference for white families for white children, for Black families for Black children, for Latino families for Latino children, for Black families, for Black children, for Latino families, for Latino children, for Asian families, for Asian children. There's a limited number of vaccines. Can the federal government decide to distribute those to Indians and not others? That was Justice Kavanaugh and Chief Justice Roberts. Along with Alito, they kept framing the nation-to-nation relationship between tribes and the federal government as some type of racial preference. Justice Alito was just viciously mocking the whole enterprise throughout the oral argument.

Before the arrival of Europeans, the tribes were at war with each other. That was Justice Alito stating, incorrectly, that Native nations were all at war with each other before Europeans arrived, as if colonization and genocide brought peace to this continent. We have to add Clarence Thomas to the Alito camp because of things he's written over the years. If you're keeping count, that is up to eight justices, four who appeared to support ICWA and four who seem to be buying at least some of the petitioner's claims. And that sort of leaves Justice Coney Barrett. Justice Amy Coney Barrett. She asked the same narrow question four times.

So I want to focus just on the active efforts provision. I want to take you back to the active efforts provision. Is this the active efforts provision? I want to get a grip on how this works. Fletcher says we don't know a lot about Barrett's thinking on tribal sovereignty because she doesn't have a long track record. She's had a few cases and actually written an opinion or two that aren't so bad. But she is a very, very conservative judge. And she seemed to be positioning herself in the middle in this case. I left oral arguments thinking Justice Amy Coney Barrett was the key vote.

When it was finally over... Thank you, counsel. The case is submitted. we were ushered outside. They were protesting, they were praying, they were dancing and singing. And it showed to me that this case really is critically important to Indian country. Good afternoon, friends and relatives. At the rally, on the steps of the Supreme Court, NCAI President Fawn Sharp addressed the crowd. But we know that no matter what they do, we occupy a certain place in this life as native people. We occupy a position of inheriting all that our creator gifted to us.

And there's not a single thing that any one of them can do to take that away from us. No legislation, no court decision. We are sovereign tribal nations from the beginning of time until the end of time. See you around. Thank you. Whoa! At 6 p.m., it was time to catch the train back to Baltimore, where I was staying. I started walking towards Union Station, but I got lost.

People say the diagonal streets in Washington, D.C. were designed to confuse and bewilder an invading army. On a day that I felt at odds with this government, it worked on me. I don't know if you're like this, but I am capable of holding in all my feelings until something small and insignificant goes wrong. And then I break. After realizing I had walked 10 minutes in the wrong direction, I sat down and cried. I hadn't let myself feel anything the whole day. As a reporter, that wasn't my job. Some would go as far to say, because I feel the stakes of this case personally, I shouldn't report on it. But here is what I felt. It took us two years to prove the

story the plaintiffs told about what happened in these custody cases wasn't true. Two years to connect the dots between moneyed interests and the attack on ICWA. But in that courtroom, it felt like none of that mattered. It felt like the truth didn't matter. And I didn't know what to do with that. Without the truth, I don't think justice is possible. It's hard to overstate how pessimistic I felt about the outcome in this case. But then, the opinion came out. What it said after the break.

This episode is supported by FX's Reservation Dogs. From Sterling Harjo and Taika Waititi, this season, the res dogs find themselves stranded in California and have to figure out their way back home. The series is a breakthrough, an indigenous representation on television, both in front of and behind the camera.

This first-of-its-kind creative team tells a story that resonates with the indigenous community and their lived experience. FX's Reservation Dogs, streaming August 2nd, only on Hulu. Last Thursday, I was frantically reading the opinion when I got to the second paragraph. Fuck! Yes! Yes! Yes! Yes! Okay, the bottom line is that we reject all of the petitioner's challenges to the statute, some on the merits and others for lack of standing. They lost. I can't believe it. I cannot believe it. They fucking lost. Oh my God. I can't believe it. Oh my God. The Brakeens in Texas lost. It was not even close. The final vote was 7-2. Writing for the majority, Justice Amy Coney Barrett was joined by Justices Jackson, Kagan, Sotomayor, Gorsuch, and two other people for which I will now eat my words, Chief Justice Roberts and Justice Kavanaugh.

The first person I wanted to talk to was law professor Matthew Fletcher. All right, we're recording. I'm recording. You're recording. We're all recording. So much recording. The first thing I wanted to ask you was actually if you can sort of think back to how you have felt the past few weeks waiting for the decision to come out. I was really thinking about how I'm going to have to rewrite my federal Indian law casebook. I guess maybe I was trying to move myself through the stages of grief. What stage of grief do you think you were in? I was trying to talk myself into acceptance. I was really angry after oral argument. I was just

angry at everything about this. The fact that we were even in the Supreme Court with a case this utterly ridiculous. I mean, all the adoptions are done. Why are we here? It's all a performance. And they're dragging real life people, Indian people, Indian tribes into this political gesture show. I was wondering if you could take me back to the moment that the decision came out. And at what point as you were scrambling to read the decision or following it on SCOTUS blog, did you realize that the petitioners had lost on every claim? I immediately went to the Supreme Court website, clicked on backing on the opinion. So I went through and I saw that the first section was on Congress's power. And that was an easy one.

And they said, yeah, yeah, Congress has power to do stuff like this. The second one was commandeering. And they said, we reject the commandeering argument. And I thought, holy cow, I can't believe that we won on commandeering. And then I moved to the next one, which was equal protection and non-delegation. And it said, there is no standing for any party to challenge this. And I thought, holy cow, did we actually just win this? I'm kind of wondering on a scale of one to 10, if you could describe how shocked you were. I was shocked on a scale of 1 to 10, if you could describe how shocked you were. I was shocked on a scale of 1 to 10, about 15. And, you know, this is a court that not long ago got rid of, you know, the constitutional right to abortion.

We know that they've gutted the Voting Rights Act. And they don't seem to have any respect for, you know, the sort of the core principles of the Constitution. Like every justice has their own view of the Constitution. And it doesn't matter what you learned in law school. Nothing is sacred at the Supreme Court. And I just couldn't believe that they followed precedent. If you're a tribal advocate, your mantra at the Supreme Court is, please just follow the law. We're going to win like 95% of those cases. The law is almost always in our favor. And it's when the court doesn't follow the law, where they change something, that's where we lose those cases. The plaintiffs in Texas were trying to say that Congress doesn't have the power to pass a law like ICWA in the first place. Can you summarize what the majority opinion had to say about that?

The majority opinion began with a dissertation on congressional Indian affairs power. So when you are looking at congressional powers, you have to look at the text of the constitution. And what we have in the constitution to start with is the Indian commerce clause. But that's not the whole length of, or not the whole scope of congressional powers in Indian affairs. Congress and the federal government generally have entered into, as you know, almost 400 treaties with Indian affairs. Congress and the federal government generally have entered into, as you know, almost 400 treaties with Indian tribes. So there's also this thing called the treaty power. And the treaty power broadly expands congressional powers to include things that are beyond what is enumerated in the Constitution. The third really big one, this is really critical,

and I was so glad to see it in the majority opinion, is the trust responsibility. And we often refer to the U.S. as our trustee, sort of wryly, sarcastically. But really what it is, is the duty of protection that the United States has in relation to individual Indians and the Indian tribes. And then the court listed literally dozens of opinions in which it's acknowledged the broad scope of congressional power over Indian affairs. And this was not the day to limit that scope, to reverse a lot of those cases. The United States has used Indian families from the very beginning to coerce, influence, persuade Indian tribes to do certain things. It's a tool of colonization, effectively. And the court just pointed out the obvious, which is Congress has been doing this all long.

They have broad Indian affairs power. That's the end of the argument. The majority opinion is short, only 34 pages. There's almost 100 more pages, however, of other stuff justices had to say. Justices Alito and Thomas dissented. They both ruled ICWA is unconstitutional, but didn't agree on why, so they wrote separately. There were also two concurring opinions. That happens when a justice agrees with the majority but wants to add something of their own.

Justice Gorsuch added a very detailed history of how, for generations, the U.S. government has systematically removed Native children from their families and tribes. Justice Kavanaugh added that although the plaintiffs don't have standing in this case, he does think ICWA raises equal protection concerns. I had one last question for Matthew Fletcher. Do you think that Matthew McGill, Gibson Dunn, the right-wing groups, and the private adoption attorneys that brought this case will stop here. Do you think that the bigger attack on ICWA and tribal sovereignty is over? If they think that the concurring opinion from Justice Gavanaugh is a signal to them that there's an audience for the equal protection argument, then they'll keep going.

I really don't think there is. I don't know how they find a vehicle to challenge ICWA under equal protection because they couldn't find a vehicle in this case. They don't have standing. You know, they're like puppies who took a newspaper to the nose today. And I don't know if they're going to come back or not. My conversation with Matthew Fletcher answered most of my questions, but there were a few things I was still processing. So I called up another lawyer, a man named Ian Gershengorn. If you've been following the case closely, you might recognize Ian's voice. That's because I did the oral argument on behalf of the tribes. And if you're a longtime listener, Following the case closely, you might recognize Ian's voice. That's because... I did the oral argument on behalf of the tribes.

And if you're a longtime listener, you might also remember Ian from season one. He argued both Murphy and McGirt in front of the Supreme Court. I talked to Matthew Fletcher about how the court ruled on that big, complicated question around congressional authority and states' rights. But I still needed someone to explain what happened with equal protection. Can you start with the equal protection argument? What did the Supreme Court have to say about that? What the court said was both the individual plaintiffs and the state of Texas didn't have

standing. So the case was brought in federal court, but no custody hearings happen in federal court. They all happen in state court. They happen in Texas, in Minnesota, in Arizona. And the plaintiffs, rather than challenging a particular adoption or a particular foster placement, decided to file a preemptive lawsuit in federal court to try to get the whole statute struck down. You know, a plaintiff has a right to challenge an adoption and say, I'm being treated unfairly. We don't think they're being treated unfairly, but we don't dispute they have the right to bring that case. But what they don't have the right to do is to pick a court and tee up a political dispute in the abstract and then ask the Supreme Court to decide it.

Abstract legal disputes brought by people because they think they may have a friendly federal judge or a friendly federal circuit are not a way to resolve major constitutional questions. Big Supreme Court decisions get talked about in these attention-grabbing moments, like a decision being announced or oral arguments. But today is the product of years of work, and I know that you have been part of a broader effort to improve advocacy on behalf of Native nations in front of the Supreme Court. And for people who don't know much about that effort, I was wondering if you can share a little bit about all of the work that was happening behind the scenes. And I'm curious if you think that it paid off.

So the answer is definitely yes, it paid off. And so the two decades work behind the scenes was an effort starting in the early 2000s, led by a bunch of people, including those at NARF and at NCAI. That is the Native American Rights Fund and the National Congress of American Indians. They're kind of like the ACLU and NAACP in the Native community. Together, they started something called the Tribal Supreme Court Project. And they sort of had looked at how tribes were faring in the Supreme Court and realized that tribes were faring very badly in the Supreme Court. So it was a matter of getting Supreme Court expertise to tribes and getting knowledge about Indian country

and Native American law to Supreme Court experts and seeing if that would change things. And that was how I got involved. So with respect to this case, it was a tremendous amount of work that went into the amicus strategy. For people who don't know, amicus is a weird little Latin word that means friend. Even if you're not part of a lawsuit, you can still file an amicus brief with the court supporting one side or the other. We had briefs from law professors on the history of tribal relations to try to deal with some of the constitutional issues. We had briefs from groups that work in the adoption space and talked about how important ICWA was, how ICWA had become the gold standard. We had powerful briefs from tribal members who had been involved actually in these adoptions.

The number of people who worked on this is beyond my ability to count. I, as an advocate, am focused on changing the minds of nine people, or five of those nine people. But all of these cases happen in a broader social context. And a lot of effort was paid to making sure that the public understood what this case was about. I think there were still some stories that sort of told the Brackeens version of events uncritically in ways that I think were less than factually accurate. But it was a small percentage of the overall coverage. And I think especially when you compare it to the last time ICWA was in front of the Supreme Court, I think you can see a really big difference.

I agree with that. And honestly, some of your reporting is a part of that, right? It's a part of getting the story out. It's not to drown out the other side, but it's to put balance, to fact check, to put things in context. Last Thursday, when the decision came down, Sandy Whitehawk was in a car riding through rural Minnesota. And I'm in the middle of the woods too, back on some back road. It's so beautiful up here. It's just all trees and lakes, trees and lakes everywhere you go. Sandy Whitehawk is Sachongu Lakota from the Rosebud Reservation in South Dakota. You might remember her from earlier episodes. Sandy was adopted out before ICWA was passed. Today, she advocates for Native kids to stay with their families. I'm on my way over to the Leech Lake Reservation because I was here for

the came to big drum ceremony. As the landscape rolled by, Sandy's phone started ringing. And I get the phone call and my friend Priscilla Day, who I'm staying with, says, Sandy, the decision was in our favor seven to two. And I went, what? And I was just in shock because I really didn't think it was going to be upheld. Only a really small part of me let myself hope that it would. People wanted to talk to Sandy about the decision. They wanted to know what she thought. They wanted to interview her, but she didn't feel ready to speak. I thought, I better not talk to anybody because I don't want to force myself to try to sound coherent because I wasn't feeling that. I was just beside myself with, is this really true? Sandy got up to Leech Lake and spent the evening in ceremony.

People may think ceremony is all this mystical experience, but it's not. It's a quieting of your spirit. It's a slowing down of your mind. That drumbeat that is our mother that drumbeat connects us to the earth who connects us to who we are in our life

I mean it's everything Sandy needed that time to let it all sink in it wasn't until the end of ceremony was over people were clearing out and leaving. Somehow that just brought me full circle back. In that moment, it came to her, a vision of sorts. It was almost like a timeline, but instead of seeing it in order, she saw it all at once. In a flash, before her eyes, she saw all the work and all the people who made this victory possible. And all I could think of were those grandmas back in the 70s who made their way to D.C. all those mothers who were willing to put themselves

in front of a court system that was still very, very prejudiced toward Indian people. And how intimidating that process must have felt for them if because of the love of their children and their grandchildren, they did it. She could see all the people who fought for ICWA when it passed. You know, Bert Hirsch is the one who said, well, let's do a study and find out how kids are doing. She could see all the research Native people had done since then to show Native kids are better off with their families.

A lot of research ended up in the opinion. Lila George, she wrote a paper in 1994 about why ICWA was important. She was cited. Even Sandy's work was there. Gorsuch cited it. They used our study about mental health outcomes for Native adoptees. She saw the social workers and trainers and advocacy organizations. She saw all the Native families who fought to keep their children. And I thought about all the ceremonies that have taken place over these generations and how prayers were said for this work. Prayers were said for our families. So many places that I have been where you will hear somebody say, my grandma testified here, you know, my aunt, and then they'll have a story.

So this wasn't, you know, one or two families. This was a collective. Native people knew how important this case was, and they fought for it. We've always known that them coming after our children would destabilize tribal sovereignty. But now they can't. It just finally feels like a protection. Today, the Indian Child Welfare Act stands. That victory, however, just maintains the status quo. The Supreme Court didn't change a thing about ICWA or tribal sovereignty or even its own precedent.

It simply followed the law. That's it. That's all. But still, it's remarkable. That's because when it comes to tribal sovereignty, the U.S. government is spineless. Most often, when non-Native people like the Bratkins want something that belongs to a tribe, like our land, our sovereignty, or our children, they get it. Even when the law clearly protects the tribe. Sometimes those protections, like the text in a treaty, just gets ignored. Other times, though, something worse happens.

To satisfy those non-native demands, the U.S. government comes along and changes the law. That's where we get big setbacks for tribal sovereignty. And that's what people feared would happen in this case. For a long time, for a very long time, what indigenous nations have been asking of your government is simple. Follow the law. Just follow the law. Justice Gorsuch wrote about this at the end of his concurring opinion. Slightly condensed,

it reads, often Native American tribes have come to this court seeking justice, only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place, an enduring place in the structure of American life. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please, the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history. All of that is keeping with the Constitution's original design. The lesson of this case, Holland v. Brackeen, isn't that when the law is on our side and we fight really hard for it, justice prevails. The lesson is that although justice for indigenous nations is rare, in our democracy,

it is possible. This land is reported, written, and hosted by me, Rebecca Nagel. Goheen Dawodon, Dilek Ayetli, Gaylan, citizen of Cherokee Nation. From Crooked Media, our executive producers are John Favreau, Sarah Geismar, Katie Long, and Mary Knopf. Our senior producer is Mary Knopf. Our associate producer is Sydney Rapp, Sound design and mixing by Hannes Brown. Original score composed by Jared Tate, citizen of Chickasaw Nation. Podcast art by Kelly Gonzalez, citizen of Cherokee Nation. This season of This Land touches on different forms of family, childhood, and racial trauma.

If you feel like you could use support, please check out our show notes or website, thislandpodcast.com, to find resources for adoptees and survivors of childhood trauma, abuse, foster care, and boarding schools. Hey everyone, Leah Littman here, co-host of Crooked Media's podcast, Strict Scrutiny. I hope you enjoyed and learned from this special episode of This Land. If you're looking for more information on the case covered in this episode, or just want to know more about the Supreme Court opinions this term and how they impact your life, I encourage you to check out our podcast, Strict Scrutiny. Each week on Strict Scrutiny, me and my co-hosts, fellow law professors Kate Shaw

and Melissa Murray, cover the Supreme Court and the legal culture that surrounds it. We break down the latest headlines and the biggest legal questions facing our country, from Mipha Pristone to voting rights to trans bans, and we tell you how to fight back against a few robed weirdos on a power trip. New episodes of Strict Scrutiny drop weekly wherever you listen to podcasts, plus bonus episodes when the Supreme Court takes away another one of our rights. In 2014, Adelanto, California, a small town in the Mojave Desert, was so broke there was talk of dissolving itself completely. Then, along came John Bug Woodard Jr., a 63-year-old gun-toting conservative hippie who had a wild idea to save Adelanto. I got on old Google. I did a little Googling, and I found out the secret.

The secret, according to Bug, via Google, was cannabis. I've heard those cannabis shops make a lot of money. What started as a simple solution to revive this small town would lead to a series of backroom dealings, a shocking scandal involving the FBI. I'm David Weinberg, and this is Dreamtown, the story of Adelanto. Listen wherever you get your podcasts.