What A Day - SCOTUS And The Future Of Indigenous Sovereignty

Episode Date: November 11, 2022

As the vote count continues from Tuesday's midterm elections, both parties are eyeing next month's Senate runoff in Georgia, but Arizona and Nevada are also in the spotlight. Democrats can clinch control of the Senate if incumbents win in at least two of those states.The Supreme Court this week heard arguments in Haaland v. Brackeen, a case challenging the Indian Child Welfare Act. Rebecca Nagle, host of Crooked's "This Land" podcast, explains why it could ultimately upend other legal protections for Native Americans. And in headlines: a federal judge in Texas struck down President Biden's student loan forgiveness plan, Tropical Storm Nicole barreled through Florida and the Taliban has banned women and girls from using gyms and parks in Afghanistan.Show Notes:The Atlantic: “The Supreme Court Case That Could Break Native American Sovereignty” – https://tinyurl.com/yp5mydsyThis Land | Crooked Media – https://crooked.com/podcast-series/this-land/AP News: 2022 midterms live updates – https://tinyurl.com/2p8u52z2Crooked 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/whataday/For a transcript of this episode, please visit crooked.com/whataday 

It's Friday, November 11th. I'm Trevelle Anderson. And I'm Priyanka Arabindi. And this is What A Day, the only podcast that is sent to your device on the back of a crisp autumn breeze. I don't really like fall time and it's been very cold lately, but I'm so glad that we can be here for you all. Yeah, it's a really creative marketing technique that we came up with, but we'd also would

like it to get a little warmer. So we might have to rethink our strategy here. On today's show, Florida took another hit from a late season hurricane. Plus, the turmoil at Twitter continues. But first, a quick election update. And that update is votes are still being counted in a number of states. And so we don't have clarity on which party will have control of Congress. As for the Senate, we mentioned on yesterday's show that the race between Raphael Warnock and Herschel Walker in Georgia will be determined in a runoff next month.

Well, two of the other Senate seats still up in the air are Nevada and Arizona. If Democrats take both of those seats, that would give them control of the Senate right there and take a lot of heat off the Georgia runoff. But at the time of our recording, it's still too close and too early to call races in both states. In Nevada, where many people tend to vote by mail, reports say around 100,000 ballots remained uncounted as of Thursday evening. Clark County, where roughly half of the outstanding ballots are from, said it would finish the bulk of its counting by Saturday. The Senate race there is between incumbent Democrat Catherine Cortez Masto and Adam Laxalt, a former attorney general who sided with Donald Trump's baseless election fraud claims in 2020. The spread between the two of them

is around 16,000 votes at the time of our recording. So very, very close there. OK, so while we're on the topic of Nevada, what about the governor's race there? What's happening? The governor's race there is between Democratic Governor Steve Sisolak and Republican Joe Lombardo. Joe is a Las Vegas area sheriff endorsed by Trump at the time of our recording. He's leading by just about 34,000 votes. So still very close there. And then in Arizona, many people have a tendency to drop their ballots off on election day. And so

approximately 600,000 votes again at the time of our recording are left to be tallied there. FYI, I keep saying at the time of our recording, because by the time you listen to this, we might have, you know, some new results, some additional tallied votes that might change things. Honestly, fingers crossed for that. Absolutely. I'd love some results. Absolutely. Which means for the Arizona Senate race, like in these other contests, the votes can go in either party's favor between incumbent Democrat Mark Kelly and Republican Blake Masters, who you you guessed it, is also Trump-endorsed. Got it. Okay. And so for those of us, like me,

who like to keep a tally on where control of the House stands right this very moment, where are we with that? At the time of recording, Republicans have 209 seats and Democrats have 191. Both parties are trying to get to 218 for control. So that means 35 seats remain undecided. We'll likely begin to see some winners of those seats later today and throughout the weekend, but it could be as late as early next week before more races are called. Yeah, but I mean, the good news here is that some of these projections are looking not so bad for us. So I honestly, the wait may be worth it. And

that is the only thing I'm counting on. But switching gears a little bit, I want to talk about what the Supreme Court has been up to while we've been watching midterm returns, because there is one case that they are considering that for most people may be flying under the radar, but it carries huge implications for Native Americans. Okay, so tell us more about what's going on. Yeah, so the Supreme Court heard arguments challenging the Indian Child Welfare Act, also known as ICWA. ICWA was enacted in the late 70s after a congressional investigation found that a third of all Native children were being removed from their homes by either federal or state child welfare agencies and were being placed in homes or institutions with zero connection to their tribes, even in cases where extended family members or members of their communities were willing and able to take these kids in. ICWA

ended up setting federal requirements for child custody proceedings that involved Native kids. It added protections for these children and it ensured that if a Native child is removed from their family, preference is first given to their extended family than to other members of their tribe, and if neither of those options is available, a different federally recognized tribe. The plaintiffs in this case have argued that ICWA is unconstitutional because it discriminates on the basis of race. But this country has long considered tribes to be political entities rather than, you know, a racial group. If ICWA is overturned, it could have huge consequences for Native sovereignty

and identity that go far beyond child welfare. To learn more about this and what's at stake, I spoke with Rebecca Nagel. She is a writer, activist, and Cherokee Nation citizen, and she also hosts the Crooked podcast, This Land. I started by asking who is behind this case and how it ended up here in front of the Supreme Court. The case is brought by a handful of foster parents who basically say that this law, the Indian Child Welfare Act, which was created to prevent family separation in Native communities, discriminated against them because it wouldn't let them adopt Native children that they were fostering. What's odd about that claim is that they actually did adopt most of the children in the underlying cases. There was only one case where they weren't able to. But the case has really broad implications for Indigenous rights because of the way that the plaintiffs are saying that ICWA should be declared unconstitutional. Right. That's super interesting that you bring that up,

that in this case, actually, most of the people already got what they wanted. So I wanted to take a step back for a minute. Like many other cases that are being heard by the Supreme Court this term, Brakeen B. Holland is the result of a years-long effort by the far right to overturn established precedent. And you've covered this and other challenges to ICWA over the years. What exactly is motivating this case? How did it get here?

And so that's really important context for the case. And this landslide of litigation has been brought by a corporate law firm named Gibson Dunn, a small cadre of right-wing organizations, and then a handful of adoption attorneys and some lobbying and professional associations that represent the adoption industry. And so I think everybody is unfortunately part of it for their own and different reasons. But what we can see in terms of what Gibson Dunn's motivation is, is that this past January, they filed a lawsuit on behalf of a non-native casino developer, making basically the exact same legal arguments that they're making

in Brackeen, and they just swapped out kids for casinos. So do you think what they're going for with this decision is not only what's implied here for children, but has far-reaching consequences in other facets of life? Absolutely. And that was a big part of the debate at the Supreme Court on Wednesday was a lot of the justices were asking, well, if ICWA is unconstitutional for this reason,

what about healthcare? What about gaming? What about funding for education for Native Americans? And so what the plaintiffs are saying is that ICWA discriminated against them based on race. And the reason that that's kind of a bomb of an argument is that there is a whole host of federal laws that treat tribes and tribal citizens differently. And they're not based on race. They're based on the unique political status of indigenous nations and our citizens. And so the fear is, is that, well, if ICWA discriminates, well, then what about the clinic where I get my health care? Or what about gaming regulations that let tribes operate casinos in states where non-native casino developers can't? If we're just a racial group, what racial group has their own land rights, their own water rights, their own government? And so the fear is that this case is kind of like the first in a series of dominoes.

And if they can topple ICWA, then everything else will go with it. Wow. I know you are in D.C. right now. You were there for oral arguments. So let's talk a little bit about how justices responded to Wednesday's arguments. You know, the bench seems to be split here. It does appear that Neil Gorsuch may join the court's three liberal members to uphold ICWA's constitutionality. But there were several exchanges that were problematic, to say the least, especially from Justice Alito. So what can you tell us about how all of this played out? Like, bring us into the courtroom with you. What did you see? So yeah, you saw Justice Gorsuch and the three liberal justices, one really understanding federal Indian law. You know, Justice Jackson had clearly done a lot of reading around congressional intent and the legislative history, and she drew on that a lot in her questions. And they were very

skeptical of the individual plaintiffs in Texas's arguments and kept pointing out the U.S. has been making laws based on these principles for 200 years, and you're asking us to depart from that. That's a big deal. But then unfortunately, there were a lot of other justices who were skeptical, that appeared to be skeptical that ICWA is constitutional. And so you had Justice Kavanaugh saying things like, well, could we pass a law where only white parents can adopt white children and only Asian parents can adopt Asian children? So kind of assuming that ICWA is based on race and ignoring the unique political status of sovereign indigenous nations and our citizens. And then to talk about that comment from Alito, at one point, Justice Alito said, before Europeans arrived, all indigenous nations were at war with each other, which is not true and really disturbing. And I think that comment kind of sums up where we are, unfortunately, with the Supreme Court, which is that they don't know a lot about federal Indian law. It's a really unique area of the law.

And there's also just a lot of racist stereotypes in their heads about Native people. And we saw that come out. Definitely. So at this point, what's your read on how the court will decide this? Like I said, there were four justices that were very clearly skeptical. And I think it's really hard to get to a fifth justice, which is obviously what we need. And so I think we'll just have to wait and see. But I think it is very likely that the law will be overturned. And I think that it's one of those things where, you know,

the way that we were talking about reproductive rights last year, the way that we're talking about affirmative action and elections this year, the way that people are talking about really fundamental things of our democracy are on the line, and we need to start thinking and questioning what is the integrity of the high court. I think that this case is a test and anyone who is concerned about the integrity of the Supreme Court needs to pay attention because the precedent that we're talking about that the Supreme Court could possibly overturn literally goes back to the founding of the Republic, literally goes back to laws that were passed in the 1790s. And so if the Supreme Court is willing to throw that out the window, what part of our democracy is safe? That was my conversation with writer and activist Rebecca

Nagel. She's also the host of the Crooked podcast, This Land. We'll have a link in our show notes to its second season. It's phenomenal. Highly, highly recommend giving it a listen. It investigates the many challenges to the Indian Child Welfare Act. More on all of this very soon, but that is the latest for now. Let's get to some headlines. Headlines. A federal judge in Texas has struck down President Biden's student loan forgiveness plan. The ruling, which came from a lawsuit filed by two people who did not qualify for the program, essentially said that Congress had the ultimate authority to make such a decision, not the president. The plan, which was put on hold by an appeals court last month, would cancel up to $20,000 in federal student loans for individual borrowers.

I don't know why these people wanted to end up on every single person's shit list, but good for you guys. They keep playing with my pocketbook, Priyanka, okay? We don't like it. Tropical storm Nicole ripped through Florida yesterday, leaving hundreds of thousands without power. After making landfall in the southeastern part of the state as a Category 1 hurricane, Nicole brought high winds, heavy rains, and coastal flooding to the state. Officials said the storm was directly responsible for at least four deaths. The storm is expected to move northward tonight into Georgia before weakening to a tropical depression.

The Taliban has banned women and girls from using gyms and parks in Afghanistan. The edict took effect this week and is the latest effort by the regime to oppress women and erase them from public life. Since the Taliban regained power in August of 2021, it has also ordered women and girls to wear head-to-toe clothing in public and banned female students from attending middle school or high school. Taliban officials said that they were compelled to extend restrictions to parks and gyms, following what they saw as violations of the country's strict dress code and gender segregation rules. But on the latter point, one female personal trainer in Afghanistan told the Associated

Press, quote, the Taliban are lying. We were training separately. InfoWars founder and conspiracy theorist Alex Jones achieved negative billionaire status yesterday. A Connecticut judge ordered him to pay $473 million in punitive damages to the families of eight children who were killed at Sandy Hook Elementary. And that's on top of the $965 million in compensatory damages he was ordered to pay last month. Jones repeatedly described the devastating 2012 mass shooting as a hoax and has been convicted of defamation.

He claims he doesn't have the funds to pay those penalties, in which case he better start offloading discount brain force pills now. Whatever money Jones does have, the Connecticut judge has instructed him not to transfer it out of the country. Yeah, listen, you get huge consequences if you are a huge fucking asshole and a terrible person. So lesson to everybody out there, don't do shit like this if you don't want a massive, massive fine. Absolutely. The slow motion self-driving car crash that is Elon Musk's Twitter continued to shock and astound yesterday. The company's head of trust and safety and its head of sales both resigned, according to numerous reports. Those departures followed the resignations on Wednesday of three Twitter execs in charge of security, privacy, and compliance, leading the U.S. Federal Trade Commission to express its, quote, deep concern. The resignations also led onlookers to wonder who actually is left at Twitter, aside from Elon Musk, and maybe a guy who paid $8 for a verified checkmark

that says he too is Elon Musk. Later on, Musk laid bare the company's perilous financial situation in what sounds like an absolutely bonkers all-hands meeting. He reportedly mentioned that bankruptcy was on the table and suggested that to survive, his workers needed to be more, quote, hardcore. I don't even want to begin to explore what that could mean. All of this serves as a cautionary tale to anyone who ever comes into $44 billion

and doesn't know what to spend it on. My suggestion, instead of a website like Twitter, would be World Peace. Or, you know, if you can't buy that, maybe just an island or something. You know, you could end childhood hunger or something. I don't know. Definitely. I think for $44 billion, I don't think anyone's going hungry. You paid $44 billion for a company that you now say

you might have to file for bankruptcy for? Something's not right, Priyanka. Yeah, basically to enable fake Mario to give us all the middle finger on Twitter, which is one of many of these fake verified accounts that is popping up and is wreaking havoc, but it's also kind of hilarious.

And those are the headlines. We'll be back after some ads with the latest out of the fast-paced world of boneless chicken law. It is Friday, Wild Squad, and today we are doing a segment where we visit the last place where justice can be served in America. A place where the law is administered by people with zero legal experience apart from knowing parts of Legally Blonde by heart. A place called the Podcaster's Court. Terrell, I'm going to tell you about a recent weird thing that has happened in our nation's courts and you get to evaluate it on its merits based on your vast legal experience.

Are you ready for this? To quote a one Elle Woods, what? Like it's hard? Yes. Okay. So this story that we got today comes out of Indiana where the fast food chicken finger restaurant Raisin Cane's is trying to sue its way out of a 15-year lease that it signed on a new store in the crossing of Hobart Mall, because that mall has a deal granting exclusive rights to sell deboned chicken on its property to another restaurant. Obviously, the chicken band would make it difficult to operate a Raisin Cane's unless they want to limit the menu to fountain sodas and little paper cups of sauces. The unusual exclusivity clause dates back to 1984, and it's with an on-site McDonald's.

Lawyers representing Raising Cane's say that their client should have been informed about the band before it spent millions of dollars developing the site, while lawyers for the mall say that the information about the ban was accessible on publicly recorded title records, and it was up to Raising Cane's to do their research. Wow. So, Travell, you have at least some of the information here. Who are you siding with in a court of law? You know what? I'm going to make my decision here based solely off of which chicken tastes the best. And I recently had Raising Cane's on a visit to like Arizona a couple months ago. I've never had it. And I have to say, if I want a boneless chicken anything, I'm probably going to go to Raising Cane's over McDonald's.

I just have to say. Travelle has spoken. I have spoken. And this also, this rule is foolish, okay? Like, what do you mean that they should have just done their research to know that they can't sell their chicken? How do you not tell them? That is an absurd thing to expect them to know to look for.

Where was this publicly? I mean, i guess it changes my opinion might change based on like how publicly accessible was this like you know when was it in this contract whatever when they signed it and they just didn't look and assumed it was fine right or like was this buried somewhere and they expected them to know it that's diving into the technicality here but i say let them compete this is wild but can we also note mcdonald's is sitting here acting like they got all of these wonderful chicken products like what like we eat the nuggets don't get me wrong but like come on what do they even have nuggets that's it it doesn't

make any sense here it makes no sense That was the podcaster's court. This court is adjourned. I think it's time for some chicken. That sounds delicious. Peace. One more thing before we go. Crooked Coffee is all about making your life a little less chaotic. So we just launched three limited edition holiday boxes to make gift giving easy. Each box is filled with full size bags of delicious medium and dark rose coffee, plus a fun activity that doesn't involve doom scrolling through Twitter. I mean,

if it still exists by the holidays. Plus this holiday season, every order from Crooked Coffee will support Vote Save America's Every Last Vote Fund to make sure every voice can be heard in the face of unprecedented voter suppression. Supplies are limited, so head over to crooked.com slash coffee now before we sell out. That's all for today. If you like the show, make sure you subscribe, leave a review, take more money from Alex Jones, and tell your friends to listen. And if you're into reading and not just the intricacies of chicken law like me, What A Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe.

I'm Priyanka Arabindi. I'm Traebell Anderson. And find us on the autumn breeze. Okay, but can we talk about how cold it's been lately? Yeah, it's cold as hell in Los Angeles. I don't know how to do it. Also, the week started raining, which was quaint for like about an hour and a half. And then I was like, I am sick of this. Listen, I did not going to do it. Also, the week started raining, which was quaint for like about an hour and a half.

And then I was like, I am sick of this. Listen, I did not sign up for this. No. Well, today's a production of Crooked Media. It's recorded and mixed by Bill Lance. Jazzy Marine and Raven Yamamoto are our associate producers. Well, today's a production of Crooked Media. It's recorded and mixed by Bill Lance. Jazzy Marine and Raven Yamamoto are our associate producers. Our head writer is John Milstein.

And our executive producers are Lita Martinez, Michael Martinez, and Sandy Gerard. Production support comes from Leo Duran, Ari Schwartz, and Matt DeGroot. With additional promotional and social support from Awa Okulate, Julia Beach, and Jordan Silver. Our theme music is by Colin Gillyard and Kshaka.