Tangle - The Indian Child Welfare Act.

Episode Date: November 30, 2022

Today, we're covering one of the most complex stories Tangle has ever seen: The Indian Child Welfare Act of 1978. Plus, we've got a question about why same-sex marriage may become law while codifying abortion rights hits the back burner.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.Today’s clickables: Quick hits (00:57), Today’s story (2:18), Right’s take (12:40), Left’s take (7:26), Isaac’s take (18:16), Listener question (24:12), Under the Radar (25:38), Numbers (26:28), Have a nice day (27:20)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place where you get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about the Indian Child Welfare Act. This is one of the most complicated and confusing Tangle editions I think I've ever done, which we will talk about in a little bit. Before we do, though,

I want to jump in with some quick hits. First up, Oath Keepers founder Stuart Rhodes was found guilty of seditious conspiracy obstructing the certification of the election during a joint session of Congress on January 6th, and of destroying evidence in his case. He faces up to 60 years in prison on the combined three counts. Number two, between 400 and 500 migrant workers died during preparations for this year's World Cup, a Qatari official confessed to Piers Morgan. Number three, after nearly two days under a boil water advisory, Houston lifted the notice on Tuesday morning. Number four, Congress is expected to pass legislation that will force freight railway workers to accept a union contract

many had rejected in order to avoid a strike that could cost the country $2 billion per day. Number five, universities in Beijing and Shanghai send students home a day early ahead of the Lunar New Year in what many perceived as an effort to tamp down protests against zero-COVID policies that are happening across the country. Number six, a bonus quick hit, the United States beat Iran 1-0 in the World Cup yesterday, earning them a second- place finish in Group B.

They will face the Netherlands on Saturday in their first win or go home game. We're diving into how the U.S. is still working to address some of the harms it perpetrated against indigenous peoples and how a key piece of legislation that's a part of that effort could be overturned by the Supreme Court. Welcome back. Today, the U.S. Supreme Court will consider the Indian Child Welfare Act. It could change how Native American children are placed in homes and how they are adopted. It was a well-intended law that now protects the interests of tribes over those of children, creating a separate but unequal child welfare system.

What's at stake here is our ability to protect our children from institutions that don't want to protect them, really that just see them as a commodity. Earlier this month, the Supreme Court heard oral arguments and a challenge to the law that gives preference to Native Americans who want to adopt and foster American Indian children. The conservative wing of the court seemed divided on how to navigate a challenge to the law, and many court watchers believe it will stop short of striking it down entirely. The ICWA was created out of concern that American Indian children were being taken from their families

and placed in non-tribal adoptive homes or care. In the 1800s, the federal government had a pattern of removing Native American children from tribes and sending them to boarding schools in an effort to promote assimilation. Those separations continued into the mid-20th century, with state courts often accepting arguments that children were being neglected or abandoned by their tribes as justification for placing them with non-native families. Some studies showed that as many as 35% of all native children were being separated from their families, so Congress created a law that insisted states placing an American Indian child for adoption give preference to a member of the child's extended family, followed by a member of the child's tribe, and then by members of other Native American families. Under ICWA, tribal

courts have jurisdiction over child custody proceedings involving Native children who live or have their permanent address on Native land. In state court, for Native children not living in tribal lands, the preferences created under ICWA apply. The case before the Supreme Court is Holland v. Brackeen, which also consolidates three other cases. Three non-Native couples and the biological mother of an American Indian child are challenging the law. In one case, Texas parents Chad and Jennifer Brackeen have already adopted a Navajo Nation child and are trying to adopt his sister, but the tribe sought Navajo placements. The Biden administration, led by the first Native American Secretary of the Interior,

Deb Haaland, has joined the defense of the ICWA. The challengers say the ICWA introduces four main constitutional issues. First, the challengers of the ICWA say it exceeds the power the Constitution gives Congress, which authorizes Congress to regulate commerce involving tribes. Children are not articles or instrumentalities of commerce. The rebuttal is that the Constitution gives Congress the power to regulate Native American affairs broadly, including all interactions between Native Americans and non-Native Americans. Two, the challengers say the ICWA violates the Constitution's guarantee of equal protection, which bars the government from discriminating based on race, gender,

or ethnicity. The rebuttal is that the ICWA is using political distinctions like membership in a tribe, not race or ethnicity. Three, the challengers say the ICWA violates the 10th Amendment's anti-commandeering doctrine, which bars the federal government from requiring state and state officials to enforce federal law. The rebuttal is that treatment of Native American children is in the federal government's purview, and ICWA simply provides rules for state courts to apply in cases involving Native American children. Four, the ICWA unconstitutionally allows tribes to adopt their own order of preferences in state court for the placement of children, which gives legislative power to the tribes over state courts. The rebuttal is that the ICWA does not delegate power, but incorporates the tribes' own preferences

into federal law. Today, we're going to explore some commentary from the left and the right about this case, as well as how the ICWA is serving Native children. Then I'll give my take. First up, we'll start with what the left is saying. Many on the left support the ICWA, arguing that it has become the gold standard in Native adoption proceedings. Some argue that Native tribes still struggle to keep their children from being taken, and the ICWA grants them proper protections against that. Others say the law is constitutional in the context of long-standing federal government cooperation with Native American tribes. federal government cooperation with Native American tribes. In the Seattle Times, Leonard Forsman, the chair of the Suquamish tribe, argued that the Indian Child Welfare Act is needed to protect Native American children from a return to the dark ages. ICWA assures that a Native American

child's extended family and other qualified members of their tribe have an opportunity to care for a child whose parents are not able to raise them, Forsman said. If the child is placed with non-natives, ICWA assures that their tribe can keep them connected to their community and culture and can check in on their well-being. And this means that their rights as citizens of sovereign Indian nations are also protected. To implement these policies, tribes have developed child welfare agencies that have been effective and compassionate at overseeing the best interests of the children, winning a gold star rating from 31 non-native child welfare organizations. Those challenging the law say it is a race-based discrimination. It is not. The Indian Child Welfare Act is founded on our sovereignty as nations with spiritual and cultural connections that precede the founding of the United States by

thousands of years, confirmed by treaties, legal precedents, congressional action, and federal recognition, he said. We have the right to make laws and enforce them, to govern ourselves and to see the welfare of our families and children. Even with ICWA, Native children are removed from their homes at four times the rate of non-Natives, even when the family situation is the same. In The Nation, Rebecca Nagel argued that the non-native parents shouldn't even have standing to sue, given that they successfully adopted the children in question. Normally, to have standing in a federal lawsuit, a plaintiff has to prove, among other things, that they experienced harm as a

direct result of that law, and that winning the lawsuit would fix that harm. The harm the Labrettis claim is not that the ICWA prevented them from adopting Octavia, but that it made the adoption harder. This claim is a little odd. It's like a white college student suing a university over its affirmative action policy after the student was accepted by the school. The narrative that the ICWA disadvantaged the Brackens, Cliffords, and Labrettis is an upside-down version of the truth. All Native children had an extended family member who wanted to raise them. Every Native relative got pushback. The Bracking case is a test for the Supreme Court, and everyone concerned about the integrity of the high court should be watching, she said.

Will the court follow decades of precedent and centuries of federal law that say Native Americans are a political, not a racial category? Will the court follow the rules of civil procedure and challenge whether the individual plaintiffs have legal standing? And will the court seek out the truth in a case where plaintiffs misrepresented the underlying facts? Given the court's very mixed decisions on tribal sovereignty in the past three terms, it's difficult to say. Whatever the outcome, Holland v. Bracken will either demonstrate that the court is still tethered to federal law, court precedent, and the rules of civil procedure, or it will show that the court is so unmoored that even the truth no longer matters. In Slate, Mark Joseph Stern said the originalist argument against ICWA is not just dubious,

but objectively false. In 1787, the framers needed to provide a solution to various problems created by the Articles of Confederation, including challenges around Indian affairs, Stern said. The Articles had tried to split authority over tribal relations between the states and the federal government, and the result was a disaster. Some states, for instance, refused to comply with the treaties between the federal government and tribal nations, leading to violent conflicts over white settlement on the Indian land, he said. To resolve this, the new constitution handed all authority over Indian affairs to the federal government. It gave the government broad treaty and war powers, which at the time was crucial to

tribal relations, and removed those powers from the states. It also gave Congress the ability to regulate commerce with Indian tribes. This is called the Indian Commerce Clause. From George Washington's administration onward, the federal government interpreted its constitutional powers to encompass exclusive authority over Indian affairs. In short, ICWA takes a federal power that was long used to break up Native communities and uses it to keep them together instead, he said. Why, then, is it under fire at the Supreme Court? Because in recent years, Republican lawyers, activists, and judges have put forth a revisionist history of the Constitution that denied Congress's clear authority to regulate Indian affairs. Their first argument

claims that the ICWA violated equal protection by using race-based classifications, even though it looks not at race but at tribal membership, which the Supreme Court has long identified as a permissible political classification. Their second argument is that ICWA exceeds congressional power, an idea that would have been unthinkable before the concerted conservative effort to lend it plausibility. Rarely in constitutional law does the history point so clearly in one direction. Alright, that is it for what the left is saying, which brings us to what the right is saying. Many on the right criticize ICWA, saying it was introduced with good intentions but has produced horrid results. Some call out the frightening stories of Native children forced into the custody of

abusive parents. Others argue that the law violates the Constitution, particularly by exceeding its authority over regulating Indian commerce. In the Washington Post, George Will described the brutal race politics of the Indian Child Welfare Act. Lexi lived four of her first six years with a non-Native American California foster family, but because she is 164th Choctaw, tribal officials got her taken from the Californians and sent to live in Utah with a distant relative. On Friday, the Supreme Court will consider whether to hear a challenge to the law that made this possible, the Indian Child Welfare Act, which endangers many young Native Americans, Will said. It is also a repudiation of the nation's premise that rights

are inherent in individuals, not groups. In 1978, before Native Americans became the preferred designation for Indians, but when racial identity was beginning to become the toxic political concept it now is, Congress enhanced tribal rights. This violated, among other principles, those of federalism. Congress thereby reduced the right of states to enforce laws on child welfare, and it plunged government deeper into making distinctions solely on the basis of biological dissent. The ICWA, an early bow toward multiculturalism, buttressed tribal identities by strengthening tribal rights. For example, tribes can partially nullify states' powers to intervene against tribal parents' abuse or endangering children.

And the ICWA conferred rights on tribes, rights adjudicated in tribal courts, including the right to require Native American children to be adopted by Native Americans, Will said, equal protection of the laws, not under ICWA. Chief Justice John Roberts Jr. has asked, is it one drop of blood that triggers all these extraordinary rights? Indeed, the primitive concept of racial blood, recast as DNA, triggers tribal rights and extinguishes a state's right to protect many children's rights, sometimes with dire consequences. In National Review, Timothy Sandefur said however well-intentioned the ICWA

was, it is now a major obstacle to protecting at-risk children. follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. The ICWA's unconstitutionality starts with its definition of Indian child. Unlike all other Indian laws, which apply to residents of tribal lands or to tribal members, the ICWA applies outside of tribal lands and to kids who are only eligible for tribal membership, even if they never became tribe members. Every tribe has different eligibility rules,

but all are predicated exclusively on biological ancestry. That means that even children with no cultural, political, or social connection to a tribe, who speak no tribal language, don't practice a native religion, and have connection to a tribe, who speak no tribal language, don't practice a native religion, and have never visited a reservation, are deemed Indian under the ICWA, whereas children who are fully acculturated with a tribe are not, if they lack the biological pedigree necessary for tribal membership. Equally problematic is the ICWA's rule governing the termination of parental rights. If a child of any other race is being beaten by a parent, the state can terminate that parent's rights over the child, thus freeing

her for adoption by offering clear and convincing evidence that she's being harmed, Sandifer said. But the rule for Indian children is different. Parental rights cannot be terminated without evidence beyond a reasonable doubt, in addition to expert witness testimony. That's a higher standard than applies even in criminal cases where expert testimony isn't required. The ICWA also imposes race-based restrictions on foster care or adoption for Indian children, requiring them to be placed in Indian homes, even if those homes are of a different tribe, rather than with families of different ethnicities. In Reason, Lorianne Updike-Toller points to deep academic fissures over the historical context of the Indian Commerce Clause.

Unknown to the court and most of academia is the root cause of all the confusion that the Constitutional Convention initially forgot and then later intentionally excluded the Articles of Confederation's Indian Affairs Clause in the Constitution, she wrote. But James Madison remembered. It was he who suggested Indian affairs be inserted back into the Constitution. This time, the Committee of Detail intentionally excluded the clause, instead inserting tribes into the Commerce Clause. No one objected. Presumably, the convention thought Congress's previous powers under the article's Indian Affairs were addressed by the Indian Commerce Clause and other provisions in the Constitution, such as the power to declare war and peace and the President's shared treaty power.

What does this mean for the Constitution? Put simply, Congress has no Indian Affairs power and therefore no plenary power, she wrote. Early assertion of this power was justified under the tripartite powers of Indian commerce, war, and treaty powers, but Congress halted tribal treaty-making long ago. If it wants to reassert power over tribes beyond the Commerce Clause, the president needs to begin treating with tribes again. Tribal sovereignty is to tribes what federalism is to the states. Powers not reserved by the Constitution to Congress and the President revert to the tribes. This would mean that Congress lacked constitutional power to pass ICWA, however

well-intentioned. Unless related to its Indian commerce power, and heaven forbid if we have arrived at treating adoption of babies and children as commerce, Congress has no power over Native American adoptions. Alright, that is it for what the right is saying, which brings us to my take. Okay, so when I was doing research for this piece, I was kind of overcome with the feeling that this is just the most complicated and difficult edition of Tangle that I've ever written. We're publishing it months after opinion pieces were published and over three weeks after oral arguments took place because it has taken me this long to really get a firm grasp on the details at hand. It got so complicated and challenging that out of curiosity, I literally searched the most complicated Supreme Court cases ever, which turned up a result for a New York Times piece in which former Supreme Court Justice Antonin Scalia called a similar but separate case around the Indian Child Welfare Act

the most difficult case he had ever handled. I was relieved in some way to know that I was in good company. Defining the boundaries of tribal sovereignty might be the most complex area of federal law I've ever encountered, one made even more emotionally charged when you add in the welfare of children. As with most Supreme Court cases, there are two threads of arguments. Is the law good and is it constitutional? In this case, I'm completely torn on both questions. Is the law good?

In every single source I found that was directly tied to experts in adoption and foster care, the ICWA was described as the new gold standard in adoption proceedings. Separate from its constitutionality, experts consider it a precursor for modern-day practices where kids are intentionally placed in homes tied to their families or communities, where studies have shown they tend to have better outcomes. ICWA has the endorsement of 24 bipartisan state coalitions and 26 child welfare organizations, including the American Academy of Pediatrics and the American Medical Association, as well as the American Psychological Association. Not only that, but the law was created to combat one of the most pervasive and tragic evils the United States federal government has ever perpetrated. The forced removal and assimilation of Native children

is a nauseating piece of American history. Stories abound of states seizing tribal lands illegally, selling those lands off, then stealing Native children and shipping them to boarding schools to be quote-unquote civilized. Yet, the ICWA has created horror stories of its own, including children being pulled from the stable care of foster parents and sent into known abusive homes where they were beaten, raped, or killed. Stories of parents who gave up their infants for adoption using ICWA, only to obtain custody five years later and then be charged with that child's death months after getting them back. Each of these horror stories, and there are many, has a similar theme. If the ICWA hadn't existed, the parents would not have been able to reclaim those children. But consider this. The actual legal fight at hand is not based

on any of these stories. Instead, it's the story of mostly white parents who were able to rather easily adopt Native children, pushing forward with a lawsuit that would strip Native tribes of preference, seemingly because of minor inconveniences they faced during the adoption process. Is this law constitutional? Much of it rests on the originalist question of whether the framers built the constitution in a way that gave federal government ownership over Indian actions as intimate as child adoption. You heard Professor Toler explain, under what the right is saying, the bizarre historical context of forgotten lines and checks in the Constitution. Mark Joseph Stern detailed the volley of articles between two professors in which 80-page

dissertations are lobbed back and forth and back and forth and back again. My conclusion from combing through all of this thick American history and legalese is twofold. First, the ICWA is rooted in long-standing precedent of far-reaching federal authority over tribal issues. Constitutionally, historically, and morally, the federal government was on firm ground to introduce the ICWA. It was a well-crafted, empathetic measure designed to right a historical wrong, and it has, for many years, achieved its aim. Second, some members of Native tribes have abused the legislation for ill. There is simply no way around the fact that many children are being plucked from stable, non-Native homes and put into unstable Native ones thanks to the

ICWA. Importantly, and not discussed in any of the articles above, is the fact that unfortunate outcomes like those also happen in child custody battles outside of Native communities. But given the many examples here, it's reasonable to assume good faith actors want the law to change, even if some people involved in this case might be using it as a Trojan horse to erode tribal sovereignty more broadly. If any case proves our law and constitution are messy and far from black and white, this case is it. I think the most straightforward argument against the constitutionality of the bill is the definition of an Indian child, which under ICWA can apply to kids eligible for tribal membership and not simply

those who are tribal members. This eligibility comes not from connection to any tribe, but from DNA, giving credence to the argument that ICWA's classification of Native children is race-based, which would make the classification non-political, which would make the ICWA a violation of the Constitution's guarantee of equal protection. One potentially narrow but sound ruling from the court could be to address this issue. Perhaps tribal members are something more closely approaching it than, say, having a great-great-great-grandparent who is a member of a tribe should be the threshold. Maybe there is a way the court can rule here that affirms the positive outcomes from prioritizing familial or tribal placement, creates backstops to avoid children being dropped into unstable or abusive homes,

and recognizes the historical necessity of this bill and the long-standing legal arrangement between the federal government and Native tribes. I have no idea how the court will rule. Both arguments have good historical pretexts and powerful emotional claims, but I'll be fascinated and nervous to see the outcome and the way the court justifies its decision. All right, that is it for my take, which brings us to your questions answered. This one is from Megan in Sylvania, Ohio. Megan said, Why has Congress been able to quickly codify same-sex marriage if everything goes as expected

this week, but unable to do the same for abortion rights? Or on a more cynical beat, why was abortion used to rally Democrat votes in the midterms instead of codified by Congress in the remaining period when they had control of both houses? So Megan, I think the answer to this is actually pretty simple. Same sex marriage is a lot more popular than abortion rights as they were crafted under Roe v. Wade. Just 27% of Americans supported same sex marriage in 1996, but now 71% believe same-sex marriage and opposite-sex marriage should have the same legal protections. That includes a majority of Republicans. Unlike many political issues, rather than politicians shaping

public opinion, public opinion on same-sex marriage has driven politicians. The numbers around abortion are a lot messier, with people divided on the threshold for when abortion should be legal and what instances should constitute exceptions. So to put it more directly, same-sex marriage is likely to become legal because roughly 10 to 12 Senate Republicans will vote for it, while codified abortion rights can only get the vote of 2 to 4 Republican senators. In the end, that's the big difference in our current Congress. All right, that is it for your questions, which brings us to our under-the-radar section. The Supreme Court heard oral arguments yesterday in a case that challenges the Biden administration's immigration policy, prioritizing deportation for certain unauthorized

immigrants over others. While the legality of the policy was under question, so too was whether the state could bring the lawsuit forward if a federal judge had the power to set the policy aside, and to what extent the executive branch can unilaterally set immigration policy that has a direct impact on certain states. The case is centered around a policy that instructs the Department of Homeland Security to prioritize apprehending and deporting suspected terrorists, people who have committed crimes, and those caught recently at the border. SCOTUSblog has a breakdown of the case and there is a link to it in today's episode description. Next up is our numbers section. The percentage of people in the United States who identify as

Native American and Alaska Native alone or in combination with another race is now 2.9%. The total number of people in the United States who identify as Native American or Alaska Native alone or in combination with another race is 9.7 million. The number of federally recognized Native American tribes in the United States is 574. The percentage of Native children who are adopted and go on to live with families outside their tribal communities is now 56% as of 2019. The percentage of all children in the United States who are Native American or Alaska Native is 0.9%. The percentage of all children placed outside their homes in foster care who are Native American or Alaska Native is 2.1%.

All right, finally, last but not least, our Have a Nice Day section. Dwarika Prasad Semwal has helped bring back traditional water conservation in his village thanks to months of perseverance and creativity. Semwal went door-to-door in Chamkot village in Uttarakhand, India, asking residents to dig simple pits near the homes to store rainwater, which would eventually seep into the water table. A total of 3,500 water bodies have now popped up across the... The campaign has helped restore lost groundwater levels that could offer a sustainable long-term solution for the village to have easy access to water

for years to come. The Logical Indian has the story and there is a link to it in today's episode description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, please go to retangle.com slash membership. A quick shout out to those of you who donated yesterday to the organization that my friend runs, which is helping fight food insecurity here in Philadelphia, Double Trellis Food Initiative. We raised $600 just in new subscription revenue alone,

and we drove quite a few direct donations to the organization, which was really cool. So tack that on to our have a nice day section. I really appreciate it. We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited and produced by Trevor Eichhorn. Our script is edited by Ari Weitzman, Sean Brady, and Bailey Saul. Shout out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Pokova, who designed our logo. Music for the podcast was produced by Diet75.

For more from Tangle, subscribe to our newsletter or check out our website at www.readtangle.com. We'll be right back. Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCilvax Quad and help protect yourself from the flu. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.