What A Day - Indian Child Welfare Act Upheld

Episode Date: June 16, 2023

In a major victory for Native American rights, the Supreme Court voted 7-2 to uphold key provisions of the 1978 Indian Child Welfare Act Thursday. ICWA was enacted to keep Native children with their families and tribes during custody disputes. Rebecca Nagle, host of Crooked’s This Land documentary podcast series, joins us to discuss the decision, and why the challenge against ICWA threatened tribal sovereignty.And in headlines: Miami Mayor Francis Suárez has become the latest Republican to enter the 2024 presidential election, at least 42 migrants were bussed to Los Angeles from Texas, and a historic digital media strike has finally come to an end.Show Notes:Crooked Media | This Land – https://crooked.com/podcast-series/this-land/What A Day – YouTube – https://www.youtube.com/@whatadaypodcastCrooked Coffee is officially here. Our first blend, What A Morning, is available in medium and dark roasts. Wake up with your own bag at crooked.com/coffeeFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday

It's Friday, June 16th. I'm Trevelle Anderson. And I'm Priyanka Arabindi, and this is What A Day, where we are absolutely 1,000% ready to put an end to this week of news. Oh yes, I've got my herbal supplements ready, okay, for a long, long break. Ah, same. It was the ah for me. On today's show, another Republican from Florida has entered the 2024 presidential race, plus a historic digital media strike has finally come to an end. But first, in another surprise decision and a major victory for the rights of Native Americans, the Supreme Court decisively upheld key parts of the Indian Child Welfare Act, or ICWA,

in a 7-2 vote. Listen, keep surprising me. I like being surprised. Keep me on my toes. Thank you so much. Right? Supreme Court, deeply appreciate it. So Priyanka, can you give us some background on ICWA and the case against it? Definitely. So ICWA was enacted 45 years ago to try and protect tribal sovereignty. It was passed after a congressional investigation found that for decades prior, this was enacted in the 1970s, so for the 50s, 60s, and part of the 70s, over a third of all Native children had been removed from their homes, some forcibly, and placed with non-Native families through both state child welfare programs and through private adoption. And to right the wrongs that they found, Congress came up with ICWA. ICWA established preferences for the placement of any Native children who are being adopted or going

into foster care with members of their tribe or other tribal nations. The goal being ideally to keep native children within their tribe. So it establishes three tiers of preference, the last being for a child to be outside of any tribal nation. Hopefully, ideally, they'd be with their extended families within their own tribal nations,

but if not, maybe then with another tribe. But this law was challenged by the state of Texas, as well as non-native parents who have adopted native children. They argued that establishing preferences was unconstitutional on the basis of race and that the law was infringing on the rights of states to settle family law matters. Of course, tribal nations are sovereign governments. They're political entities. That is how the Constitution recognized them. It's very different than a racial group. So if this decision had gone the other way, as many feared that it would,

it could have threatened every aspect of law and policy around how the federal government interacts with Native tribes and all of tribal sovereignty, not just ICWA itself. But luckily for us, we did not have to see how that would go because that didn't happen. The court actually ruled that Congress has a well-established power to legislate on this, that they didn't overstep. And they actually ruled that the parents didn't have the legal basis to even make the argument that the preferences established by ICWA were unconstitutional on the basis of race. You know what? I'm just glad that the court is making sense now, right? This is a very logical response to this case, and I appreciate that.

Highly logical, but still highly surprising. Like, I don't think very many people were expecting it to go this way, especially this decisively, seven to two, but really exciting. I wanted to learn a little bit more about this. So to put it into context for us, I spoke earlier with journalist and Cherokee Nation citizen, Rebecca Nagel. She is also the host of the award-winning Crooked documentary series, This Land. If you haven't heard it already, it is phenomenal. Season two is all about the complexities of this particular case. It's how I became familiar with it.

She has really been following this closely for quite some time. I started by asking her for her reaction to yesterday's decision. You know, I was expecting it to be a loss and I thought it was a matter of how significant the loss would be, both in terms of how much of ICWA the court would strike down and how much damage that decision would do to the arena of federal Indian law. And I was shocked that not only did the plaintiffs in Texas lose on every argument that they raised, but they lost in a 7-2 decision. So it wasn't even close. Yeah.

Sometimes the court will give you something good, apparently. It shouldn't be surprising. I mean, the arguments that they were making were from Mars. If you think of what the Constitution says about the federal government's relationship to tribes and the unique political status of tribes and tribal citizens. So the arguments that they were making was pretty radical, but it just seemed like the court had signaled that it was willing to go there. So it's great that it didn't. Yeah, I wanted to actually ask you, I mean, I know when you were here last time, we spoke a little bit about those arguments, but can you get into a little bit of the case that the plaintiffs were trying to make here and then the grounds on which they were sort of shut down? Yeah, so it's a super complicated case. There was a group of non-native foster parents who claimed that the Indian Child Welfare Act was unconstitutional racial discrimination because it wouldn't let them adopt Native children.

What was wild about that argument is that for the most part, they actually won custody. And I think sort of recognizing that they didn't have what's, you know, the legal term is like redressability or standing. Right. The Supreme Court actually just kind of knocked that argument out for lack of standing. And then the other big chunk of the argument was basically states' rights. So Texas was coming and saying, you know, child welfare is really up to us. You know, as Texas, we get to say what happens in our child welfare

proceedings. And for a whole host of reasons, you know, they were saying that Congress basically doesn't have the power to pass a law like ICWA. And when it comes to child welfare, can't tell Texas what to do. Got it. Okay. But I mean, on every grounds of this case is really kind of remarkable. But I want to talk specifically about something that I found very interesting. Justice Neil Gorsuch's opinion here. I mean, Justice Amy Coney Barrett wrote for the majority, but Neil Gorsuch wrote a very passionate, 38-page long concurring opinion. Was that surprising to you? What do you make of that? No, I'm not surprised. I mean, I think that Justice Gorsuch is really building up a very specific view of the rights of tribes under the Constitution and how that's a bedrock principle

in American democracy. It's there in the Constitution. It's's, you know, bedrock principle in American democracy. Right. You know, it's there in the Constitution. It's there in, you know, 200 years of statutes and court precedent. But often what happens in the federal judiciary is that when laws that uphold the rights of tribes inconvenience non-Native people or non-Native people don't like those laws, you know, like the Bratkins in this case, courts bend or break the rules. And I think Gorsuch is setting precedent that that's not only not the law, but that's not the role of the court. And so I think what was really important about the concurring opinion in this case is that Justice Gorsuch gave basically a history lesson of the very long history of the U.S. systematically

separating Native children from tribes. And I think that that was a really important thing to have acknowledged in the record of this case, because it is definitely the background. All of this is happening against the backdrop of, you know, generations of Native children being separated from their families and their tribes. Definitely. I'm curious, too, about how you see this kind of in the context of the larger legal landscape for tribal nations. How are you looking at that? You know, we have been on a roller coaster. We have had some really high highs in the past few years, like the McGirt case and this case. We've also had some lows,

like the Castro opinion that came out last year. I think Coney Barrett authoring this opinion, it's her second opinion that she's authored that has to do with federal Indian laws, and she's been on the bench. And I think if she's going to take a sort of a similar position to Gorsuch as a textualist, where, you know, when the Constitution says that treaties are the supreme law of the land, we're going to follow what the treaty and what the Constitution says. Right. You know, I think that that could be a really important turning point for tribal sovereignty. I will say one thing is that even when you go back and you listen to oral arguments at

the Supreme Court, even just 10 years ago, it is very clear that a plurality of the justices have no freaking clue what federal Indian law was, what it is, what a tribe is, how tribal citizenship works. And I would say, I think that's the biggest shift that's happened is that there is a much bigger knowledge base at the Supreme Court. And I think you can point to a lot of, whether it's briefing or trying to get more native people to clerk at the Supreme Court, there's been a lot of advocacy that has led to that. Yeah. Work that is paying off, which you always love to see. Yeah. And just one last thing before we let you go. Is there anything that you feel like we didn't cover in this interview that you think will be important

for people to kind of understand or context just, you know, that you want to share? Yeah, I mean, I would just say that the arguments that the foster parents and that Texas put forward in this case were really radical. And the Supreme Court thoroughly, thoroughly rejected those arguments. And in my opinion, that's not just a victory for Native nations and Native families, but it's also a victory for our acknowledged and embedded into the law the unique relationship that it has with Native nations, whether that's in the Constitution, in treaties, in court precedent, in laws that Congress passed. And the plaintiffs were asking the Supreme Court to set literally all of that aside. And the Supreme Court said no. That was my conversation with Rebecca Nagel, host of Crooked's documentary series, This Land. I also want to mention that Rebecca is working on a bonus episode of This Land, which you can hear later next week. You definitely do not want to

miss that. It's going to be a great listen. In the meantime, we'll be back to some headlines. Headlines. We have some Florida man news to kick things off. Miami Mayor Francis Suarez has become the latest Republican to enter the very crowded and increasingly cartoonish field of candidates for the 2024 presidential election. He filed the necessary paperwork on Wednesday, a day after former President Donald Trump was arraigned in his city on federal charges, though he called the indictment against Trump, quote unquote, an American during an appearance on Fox News last weekend.

Of course he did. None of us are surprised about that. Lame. Boo. Throwing tomatoes. Tomato, tomato, tomato. Yeah, yeah. Suarez, who is Cuban-American, happens to be the first GOP Latino candidate to enter the 2024 race and is now the second Republican contender from Florida.

On that note, let's just say that Francis Suarez and Governor Ron DeSantis are not pals. The mayor got into some big fights with DeSantis during the height of the COVID crisis. The governor blocked his attempts to enforce a mask mandate in Miami during the winter surge in cases in 2021. And Suarez has also openly criticized the efficacy of Florida's controversial new immigration enforcement laws, which we will tell you about more next week. Yeah, listen, picking fights with Ron DeSantis, not being on the same side of him, like you have some right opinions there. I got to give it to you.

But I hate to say it. I hope I don't sound ridiculous. I don't know who this man is. I don't live in Miami. Anyways, more than 180,000 people have been evacuated across India and Pakistan as the first severe cyclone of the year made landfall along both countries' shared northwestern coastline yesterday. Cyclone Biparjoy, which means disaster in Bengali, had been brewing over the Arabian Sea before delivering heavy rains, high tides and powerful 90 mile an hour winds. Though the storm is classified as a category one storm on a scale of five, it's still expected to deal substantial damage to homes, crops and unstable public infrastructure that's in its path. Railway service and schools in the affected areas have been suspended, as well as offshore oil and port operations. We'll likely see the effects of this storm in Karachi,

Pakistan's largest city with 20 million people, along with several of the large ports in India throughout the day. Experts say that human-driven climate change is making cyclones like these more frequent and more severe because water temperatures in the Indian Ocean and Arabian Sea are steadily rising. At least 42 migrants, including children and toddlers, were bused to Los Angeles from Texas this week. The group was sent by Republican Governor Greg Abbott, who announced the quote-unquote relocation in a press release the same day, saying migrants were sent to L.A. because it is a sanctuary city for immigrants. The group arrived at L.A.'s Union Station Wednesday afternoon, where they were met

by aid organizations and city representatives who were informed of their arrival in advance. At least now they're letting people know in advance instead of just sending people. I guess. A spokesperson for the immigrant rights group Cheerla told the L.A. Times that the migrants were on the bus for 23 hours without food. Most of them are said to be from Venezuela, Guatemala and Honduras. In a statement, L.A. Mayor Karen Bass said, quote, It is abhorrent that an American elected official is using human beings as pawns in his cheap political games. This group's arrival marks the third time in less than two weeks that Republican governors from Texas and Florida have sent migrants to California.

The seriousness of this really can't be overstated. But aside from that, like, they've all done this stunt now. It's so unoriginal. Like, why do you keep doing it? Like, it's been done. I don't want to encourage you to come up with anything new because like god only knows but like i don't really know if you're that creative it's just why you might want to put that venti oat milk latte down because

we have got to put starbucks on blast again listen if you are still drinking starbucks i don't know what you're doing because they are fucking up left and right, but that's on you. That is because the group trying to unionize some of the coffee chain's workers says that the company has forced employees to take down in-store pride decorations in at least 21 states. Starbucks Workers United posted on social media earlier this week to detail the disappearance of rainbow decor this Pride Month. And anecdotally, our producers have noted that even the Starbucks near Crooked headquarters in LA is missing its usual Pride Month displays. Going a little Nancy Drew on this one.

We are boots on the ground giving you the hard-hitting news, but that is pretty weird. Starbucks has denied the allegations and has blamed the lack of pride decor on individual store managers. But according to Starbucks managers interviewed by the New York Times, some have said that that is not the case, while others claim that they made the decision for the safety of their employees following threats against Target retail workers

in recent weeks. And finally, the longest strike in digital media history has come to an end. The union at Insider, the digital news outlet focused on business and tech news, reached a resolution with management on Wednesday. The new contract includes setting a minimum salary of $65,000, an immediate 3.5% salary bump for most staff, and a pledge from the company to not lay off any more employees for the rest of the year. We love that. We love that commitment. The 13-day strike, which almost shut down Insider's entire newsroom, began on June 2nd, following a round of layoffs and to protest an increase in workers' health care costs. As the strike dragged on, old stories were

recycled on the website, and even Insider's millionaire founder, Henry Blodgett, started writing his own articles. Yikes. One of his essays told Apple to ignore the haters of its new $3,500 virtual reality goggles. That's hilarious in the first place, but like we are the haters. So absolutely anti this article and this man. Absolutely. It's been a grim time for digital media. So it is welcome news to see insider workers take the win. Ultimately, all of the unionizing that's happening around, particularly in media.

Love to see it. Love to see it. Yeah, this is really exciting. It's not normally how this goes. Big congrats to our friends at Insider. This is really, really amazing. And the things that they have gotten here, their minimum salaries, the immediate bumps, the no layoffs for the rest of the year. That's really like those are huge. That's a huge deal.

Absolutely. And those are the headlines. One more thing before we go. Are you a trans person living in a red state that has recently passed a ban on gender affirming care? Have you or someone you love been personally affected by Republican-backed attacks on LGBTQ plus rights? Do you want to make your voice heard right here on this very podcast about the real harm that these laws have on people's lives? Well, we want to hear from you. Send us a voice note or written response at wad at crooked.com with your name, where you're from, and how you've been impacted. If you'd prefer to remain anonymous, just let us

know. That is all for today. We'll be back with a new episode on Tuesday, June 20th. In the meantime, if you're new and you like what you hear, make sure you subscribe, leave a review, buy your coffee from a local business already, get it together, and tell your friends to listen. And if you are into reading and not just articles written by rich people like me, Wood A Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Trevelle Anderson. I'm Priyanka Arabindi. And hands off our pride stuff. Yeah, seriously, hands off my anything. Listen, we're halfway through Pride Month. You can stand looking at a rainbow for a few more days.

Yeah, we like rainbows. And if this is how you're behaving 15 days in, I'm just a little terrified to see how the rest of the month is going to go, to be honest. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance. Our show's producer is Itzy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers. Our intern is Ryan Cochran. And our senior producer is Lita Martinez.

Our theme music is by Colin Gilliard and Kashaka. From the creator of podcasts like Root of Evil, Relative Unknown, and the Peabody-nominated Gangster Capitalism comes The Set, the never-before-told story of the biggest police corruption scandal in New York City history and the investigation that uncovered it all. It was the height of the crack era and the most violent time in New York City's history. But instead of protecting New Yorkers from drug dealers, some police officers became them. When a commission formed to investigate police misconduct, it discovered Harlem's 30th precinct had been overrun with corruption. But even worse, the NYPD had been turning a blind eye. In the set, we hear never-before-told stories shared directly by the dirty cops who were

convicted, the undercover internal affairs officer who blew the whistle, and the investigators, prosecutors, and police commissioner who exposed the truth about what happened when the world's largest police department failed to police itself. The set, an Odyssey Originals documentary podcast, is available now on the Odyssey app or wherever you get your shows.