What A Day - Uncovering The Foes Of The Indian Child Welfare Act with Rebecca Nagle

Episode Date: August 23, 2021

In the new season of “This Land,” journalist Rebecca Nagle investigates who is attempting to take down a federal law that aims to keep Native American foster and adoptive children with Native American communities, and why.Nagle joins WAD to explain how all is not what it seems in a court case where a white couple claims that they cannot adopt their foster child, who is of Navajo and Cherokee descent, because of that law.And in headlines: California’s Prop 22 is ruled unconstitutional, powerful storms deluge Tennessee and the Northeast, and school districts face a bus driver shortage.Show Notes:“This Land: Season 2” – https://crooked.com/podcast-series/this-land/For a transcript of this episode, please visit crooked.com/whataday

it's monday august 23rd i'm gideon resnick and i'm josie duffy rice and this is what a day the podcast that actually helps you regain the 36 minutes of your life you lose every single time you eat a hot dog yeah joey chestnut we sincerely hope that you're listening out there and we also hope that you are eating some vegetables i don't have high hopes hopes for Joey, unfortunately. I also don't like vegetables, so I don't blame him. On today's show, President Biden addresses the country again on Afghanistan, plus some school districts face a bus driver shortage. But first, we look at the story of the new season of Cricket's podcast, This Land. It's hosted by journalist Rebecca Nagel. And this season, she investigates who is attempting to take down a law that aims to keep Native American foster and adoptive children

with Native American communities and why those people are doing it. So in this most recent lawsuit, the actual legal argument is that it's unfair to the white foster and adoptive parents because it puts them last in line. Give me a fucking break. I'm sorry. That's my immediate emotional response. You can edit all this out, but Jesus. It puts them last.

Talk about privilege. So that's Nagel talking with one of the many voices in this new season of This Land. And episodes one and two just came out today. So we are so excited to have you with us, Rebecca, to tell us more about this entire season and your work. Hello. Thank you so much for having me.

I'm excited to be here. Yeah, of course. So that person that we just heard in the audio is Sandy Whitehawk. And you talked to her because she's part of this terrible history in America. For decades, the government would forcibly separate Native American children from their families and place them with white families. That happened to Sandy as a child. But can you talk a little bit more about the history of why the government argued this was even necessary? And so there were a couple things going on. There was the Federal Indian Adoption Project, where the federal government actually gave the Child Welfare League of America money to take Native children out of

their communities and place them with white families. And the other thing that was going on is that there was a lot of racial bias in child welfare systems. So social workers would see, you know, kinship systems where a kid was living with their grandma and say, well, this is child abandonment and come and snatch the kid. That fits into this policy in the era where there were all these different policies to try and assimilate Native people, basically to separate us from our tribes and from our culture with the goal that eventually there wouldn't be Native people anymore. And a tribe that doesn't have children, you know, and people, you know, our elders talk about, there were communities where there just were no kids during this time.

And a tribe without children doesn't have a future. And so there was a big national survey, and they found that 25 to 35% of all native children were away from their family and from their tribe. What kind of trauma did that cause among those children and those families? Family separation is something that affects the whole community. So it affects that child, it affects their family, their extended family, and their Native nation. And when adult adoptees talk about this, you know, a lot of Native adult adoptees talk about this, you know, a lot of native adult adoptees talk about growing up with this identity crisis. You know, one person we interviewed put it this way, where she said, you know, I wasn't white, but I lived in a white world. I was native,

but I was completely separated from what that meant. And she just, you know, really struggled with forming her identity. This is still happening. And so social workers are still removing Native children from their families at really, really alarming rates. One of the jurisdictions we looked at is Hennepin County, where Minneapolis is, because that's where one of the stories take place, where one of the Native children was living in our story. And in that county, Native children are 35 times more likely to be removed from their parents than white children. Wow. And so there's still all of that racism in the system that's still really harming Native families and other families of color and

other poor families. And in 1978, Congress passed the Indian Child Welfare Act or ICWA. This law is at the center of everything that is in this series in a lot of ways. So can you explain what it actually does, how it native child is up for adoption or is in the child welfare system, ICWA is there to try and maintain that child's connection to their tribe and to their family. And it does more than one thing. One thing is that it gives tribes a say in what happens. So tribes can intervene in the family court proceedings. They can move the case to family court. And ICWA, and this is like what is at the heart of this lawsuit and what a lot of non-native people don't like about the law, is that it sets out placement preferences that prioritizes first placing a Native child with their family. If that's not available, another member of their tribe. And then if that's not available, another Native home to try and keep kids connected to their family and their culture. And I think the other thing that's really important that I think a lot of people aren't

talking about this case in the context of is that ICWA comes at the end of the civil rights era and is a response to racist and abusive practices by state agencies. And it's a set of remedial measures that now many of the same people who have fought the Voting Rights Act, who have fought the Civil Rights Act, are coming along and fighting ICWA. And like, those things aren't disconnected. Right, right. Speaking of that, for this season of This Land, you followed a particular challenge to ICWA being the Brackings case. So Chad and Jennifer Bracking are a white couple in Texas who, in 2016, foster a toddler who is Navajo and Cherokee. And the Brackens want to get this law struck down, right, so that they

can adopt that child. So in this clip, you have an actress reading from Jennifer's blog. He's stuck in the system. So we wait. We wait and wait and wait. And sometimes this is what foster care is. He's loved and safe with us until the day he goes home. I don't want to give too much away, obviously, but all is not what it seems in terms of why they and their lawyers are challenging Ikwa. And so without spoiling too much in the series, why don't you tell us a little bit more? You know, I think reporting this story was like peeling an onion. And the first layer of the onion that we took off is that we realized that the story that's being told about this custody

dispute over this toddler isn't really what it is. So we were able to track down what happened in the underlying custody case. And this couple, Chad and Jennifer Brackeen, actually won custody of the child relatively quickly because they got some like really big legal help from a huge corporate law firm and the Attorney General of Texas. And once those people intervened in their custody cases within a couple weeks, the case started going their way. And that's when they filed this federal lawsuit saying that they were going to lose custody of this child that they had fostered. And they, you know, in federal filings, like actually talked about how it was this disputed

custody after the child's tribes had agreed to the adoption. So what actually happened in the custody cases is being really misrepresented. It's told the story of this family being torn apart. And then, you know, this was an investigation into why ICWA. In the past decade, the Indian Child Welfare Act has been challenged more times than the Affordable Care Act. There's actually a really concerted effort to get it declared unconstitutional. And there are these this weird cluster of adoption attorneys, corporate lawyers and right wing organizations and funders that are leading the charge. And so our question was, why? Like, why are all these people interested in ICWA?

And we found a couple of things I don't want to give too much away. But we found a paper trail about how it's part of a broader strategy around building conservative power. And that it's also really about undermining tribal sovereignty, because the legal arguments that they're making in this case, strike at the heart of the legal structure defending Native rights in this country. And so the stakes are really, really, really high. And I want to ask for a second here, you know, Rebecca, you are a citizen of Cherokee Nation yourself. So as you're going through this entire process, there are other layers of it as well for you personally. Can you walk us through a little bit what that felt like? Yeah, I mean, it's just be very devastating, right? And particularly

hits close to home to talk about something like this and to report on something like this? Right now, the history and the trauma of family separation is a pretty raw nerve. You know, this past summer, First Nations in Canada announced the news that they had found, they started finding graves, unmarked graves, mass graves of children who went to residential schools in Canada. And that process is starting in the United States now. And so we got some news just this past week, and it's going to keep happening. And so I think that that, particularly around boarding schools, and I think foster care is kind of the modern form of that. There's a lot of grieving happening right now. But I think that that history is why it's an even more important conversation about what is happening today and what is happening with these cases. I think for generations, Native children have been the tip of the spear and have really been

tools in this project of genocide. And I think you can see how it's happening with this case. You know, I cover this as a Native reporter, but I am often really, really frustrated by the non-Native coverage of it because there is this way that the folks who are bringing this case or the white foster families are given the benefit of the doubt without people doing basic journalism. And so I sometimes get asked, like, OK, you're a Native journalist. Like, how are you reporting on this in a way that's not biased? And I kind of always want to point out, like, the bias of non-Native journalists.

Because it is – the anti-Indigenous bias there is so strong that they're reporting things that aren't factually accurate. You know, there are these articles – like, there was one in The Atlantic that was told from Chad and Jennifer Bratkeen's perspective. And, you know, the reporter tells it as they've told it to the reporter. And we found things in there that we know are not true. And so I think that that's one thing I really hope we can accomplish in this series is like presenting all the information. We submitted 60 FOIA requests. We went over thousands of pages of court documents.

We talked to over 100 people. We really did our due diligence to get to the truth and to document what we found. And so I hope that it can kind of reset how these cases are talked about and that people can really bring the truth to light through this series. Absolutely. So episodes one and two, again, are out today. We can't recommend it highly enough. I mean, it's fascinating. It's an incredible story.

But can you talk a little bit about what listeners can expect for the rest of this season? We go in depth into this case, Bracken v. Holland, and how it started and where it's going. And then we take a deep dive into the people behind it. And so we kind of go behind the curtain and look at the state attorneys general, the adoption attorneys, the corporate lawyers, and the right-wing universe of right-wing money that is attacking the Indian Child Welfare Act and really try and pin down why and what their agenda is. And so, yeah, I hope everyone listens to it. There's a lot to learn, and it's a really important conversation. Awesome. Well, thank you so much again for joining us. Rebecca Nagel, the host of Crooked Media's podcast, This Land, season two, out today. Again, you have to

subscribe. Thank you so much again for all Again, you have to subscribe. Thank you so much again for all your time. Thanks, Rebecca. Thank you so much for having me. You can find This Land on Apple Podcasts, Spotify, or wherever you get your pods. And that is the latest for now. We'll be back after some ads. Let's wrap up with some headlines. Headlines. Over the weekend in Afghanistan, the United States continued to evacuate thousands of people from Kabul following the Taliban seizing control of the country's capital last week. President Biden spoke from the Roosevelt Room of the White House yesterday afternoon about the ongoing evacuation efforts and said his administration may extend the August 31st deadline for removing all American troops from Afghanistan. Before delivering his remarks, Biden met with his national security team, and his administration ordered American Airlines to

provide their planes and crews to help in the evacuation effort, activating the Civil Reserve Air Fleet, which was created in 1952 during the Berlin airlift. The president has faced sharp criticism for not doing enough to get people out of Kabul into safety. Yesterday, he said this in his remarks. Let me be clear. The evacuation of thousands of people from Kabul is going to be hard and painful, no matter when it started, when we began. Would have been true if we had started a month ago or a month from now. There is no way to evacuate this many people without pain and loss of heartbreaking images you see on television. It's just a fact. Yeah, heartbreaking is definitely right. On Friday, the New York

Times reported that the U.S. Food and Drug Administration is pushing to give full approval to Pfizer-BioNTech's COVID-19 vaccine sometime today. People familiar with the planning but were not authorized to speak publicly on the matter told the Times that regulators had been working to finish the process by Friday, but were still working through heavy amounts of paperwork and negotiations. So health officials are hoping that an FDA-approved vaccine will draw more interest in some vaccine-hesitant Americans who were wary of taking a shot that had only been authorized for emergency use thus far. The FDA's approval of the shot may also pave the way for vaccination requirements by public and private organizations, such as universities and hospitals, some of whom have been waiting for final regulatory approval before imposing mandates. After receiving the FDA's initial approval, Pfizer is expected to quickly then ask for approval on a third dose as a booster shot. Meanwhile, regulators are still reviewing Moderna's data for full approval of their COVID vaccine. As for Johnson & Johnson, I guess we'll

report back in a year or two. The gig economy just got a labor when delivered right to its doorstep. On Friday, an Alameda County Superior Court judge ruled Prop 22, a 2020 state of California ballot proposition, was unconstitutional. Prop 22, which passed in 2020 with 58% support from Californians, allowed companies like Uber, Lyft, DoorDash, and Instacart to be exempt from a law requiring gig workers across many industries to be classified as employees, meaning they get benefits like minimum wage, overtime, and workers' compensation. In 2020, Uber, Lyft, and others spent over $220 million lobbying in favor of Prop 22 in what

became the nation's costliest ever ballot initiative campaign. At that point, it seems like you could have just paid minimum wage, but critics of the proposition saw it as a way to cement the expendability of low-wage gig workers, denying the company's responsibility to provide benefits while invalidating workers' ability to collectively organize as employees. The judge who overturned the proposition seems to agree with the critics, saying the proposition specifically prevents collective bargaining among workers while also infringing on the power of the California legislature to regulate workers' comp. While Uber has already said it will be contesting the invalidation,

the constitutionality of Prop 22 will eventually be decided by the California Supreme Court. Uber is just clearly never going to stop with this. Yeah, we're going to be fighting this forever. Yep. We love it. Catastrophic flooding in Tennessee this weekend led to widespread damage across the state, including a death toll of at least 22 and a rising number of people still missing following the events of the flood.

We are thinking of everybody in the state. So tragic. The extreme weather in Tennessee is just one of many storms that made landfall in the past few days. In New York City, around 60,000 people attended the We Love NYC concert,

which took place in Central Park. The event, which required proof of vaccination for everyone 12 and older, was originally announced back in June as a way to celebrate an end to the worst of the pandemic. As far as how it actually went, I think you can visualize the My Fall Pl pandemic. As far as how it actually went, I think

you can visualize the My Fall Plans, the Delta variant meme in your head, and you will basically get the idea here. While the massive bill featured heavy hitters like Bruce Springsteen, The Killers, and Earth, Wind & Fire, most of the acts announced never had the chance to actually take the stage. As Barry Manilow was in the middle of his song, I Can't Smile Without You around 7.30 p.m., his band was interrupted with a severe weather announcement, leading to an evacuation of the park and a subsequent record amount of rain for New York City. The inclement weather New York's been experiencing has been linked to Hurricane Henri, which was downgraded to a tropical storm Sunday morning before making landfall near Rhode Island. While Henri may not be a hurricane

anymore, the storm has still unleashed winds up to 70 miles per hour, as well as coastal and inland flooding throughout the East Coast. As for Barry Manilow, everybody was thinking, what about him? He got to finish his set on CNN Saturday when he and his accompanist serenaded Anderson Cooper via phone interview with a rendition of his song, I Made It Through the Rain. I guess if that doesn't help the East Coast getting dry, nothing can. Barry Manilow will solve climate change. Yep. Alone. Exactly. He's destined. He's destined. America's school districts are

having to get creative to face their latest challenge, a shortage of bus drivers. The shortage seems to be happening for a number of reasons. The Delta variant makes bus drivers, more than half of whom are over 65, especially vulnerable in school districts without mask mandates and with low vaccination numbers. Additionally, commercial driving workers are finding demand in other areas like online retail and food delivery. Some school districts are offering parents $700 to drive their kids to school, while other districts are offering signing bonuses and expedited training programs to potential bus drivers. In Seattle, a bus service held a school bus driving demo where volunteers were allowed to give a school bus

a spin around a closed course to see if they'd want to apply to drive one professionally. Oh, man. Across the board, these school districts hope that these recruitment efforts lead to an uptick in applications as the school year rapidly approaches. So if you're listening out there and you've always thought you'd crush it as the wise driver of a big yellow school bus who dispenses sage advice to the kids who ride and always plays the coolest expletive-free music, here's your very specific and very timely chance. Yeah, I will say

also the first time I heard Move Bitch by Ludacris was on a school bus on the way back from camp. So for me personally, expletive free is not the most important thing because that was a formative experience. I must say that, you know, where we all heard our worst music was probably someone else's CD player on the school bus. So it was a very, very important job, very important developmental job. 1,000% learned a lot of words on school buses in my time. Absolutely. Absolutely. And those are the headlines. That is all for today.

If you like the show, make sure you subscribe, leave a review, drop the kids off at school somehow, and tell your friends to listen. And if you are into reading, and not just New York City rain statistics like me, What A Day is also a nightly newsletter, so check it out and subscribe at cricket.com slash subscribe. I'm Josie Duffy Rice. I'm Hedon Resnick. And put down the hot dog, Joey. Poor guy. Yeah. We hope you're listening. We love you. We do. You don't need to wet the bun every time, at least for the viewer's sake. Don't remind me. what today is a production of cricket media it's recorded and mixed by bill lance sonia tun and jazzy marine are our associate producers and kelly satakun is our intern Thank you.