1:56

it.

2:00

I can't believe it. This is not what

2:02

I was expecting. That is so

2:04

awesome. That is so awesome.

2:08

That is so awesome.

2:11

In this episode, I'm going to walk you through

2:14

what the opinion said and what it means for

2:16

Native families and tribes. But

2:18

first, I have to take you back

2:22

to a cold day last fall.

2:24

On

2:28

the morning of Wednesday, November 9th, I woke

2:30

up at 5 a.m. In the dark,

2:32

I got dressed, checked the batteries in my

2:34

recorder, called an Uber, and ignored

2:37

the knot in my stomach. That

2:39

day, the Supreme Court was scheduled to

2:41

hear arguments in Holland v.

2:43

Bracken. When I got to the court,

2:45

it was still dim and cold outside,

2:48

but the line to get in was already

2:50

long. What time did you get in line this morning?

2:53

We were here at about 4.45.

2:56

Members of the public can watch oral

2:58

arguments at the Supreme Court, but they

3:00

can't reserve a seat. To get in, you

3:03

have to stand in line for hours.

3:05

Wrapping around the corner of the white

3:07

marble building, people huddled in the cold.

3:10

My name is Dan Leverence. I'm a member

3:12

of the Iowa Tribe of Kansas and Nebraska. I'm

3:14

Niki Stoknata-Sue Samantha Maltes, Nuitamas-Aakuna-Hana-Tininwa-Pinaak.

3:18

My name is Samantha Maltes. I'm a member of the Wampanoag

3:21

Tribe of Laquina. My

3:21

name is Vernon B. Abeta. I'm the governor

3:23

for the Pueblo of Isleta. We traveled from New

3:26

Mexico. My name is Kimme Wind-Homingbird, and I'm Muscogee

3:28

Creek. I came from Oklahoma today. My name is

3:30

Fawn Sharp. I serve as president

3:32

of the National Congress of American Indians and vice

3:35

president of the Quinault Indian Nation.

3:37

When I asked people why they traveled to the

3:39

Supreme Court that day, many had personal

3:41

stories, like Fawn Sharp, who

3:43

tried to adopt native siblings but was

3:46

turned down at first for a white family.

3:48

I had to go through two levels of appeal. They

3:51

didn't think it was in the best interest of my

3:53

children to be placed in a home

3:55

on an Indian reservation. They would

3:57

prefer them to be in suburbia and Salem,

3:59

Oregon.

3:59

and that that was in their best interest. People

4:02

also told me about how the Indian Child

4:04

Welfare Act, or ICWA for short,

4:07

kept their family together.

4:09

I entered care when I was nine and I was placed

4:11

with my maternal aunt. And

4:14

to you, what's at stake

4:16

in this case? Everything, every

4:19

child deserves to have the same future that I get to

4:21

live every day.

4:22

I asked that question to a bunch

4:24

of people and I kept hearing the

4:26

same answer. What's at stake for you

4:28

in this case?

4:30

Everything, everything's at stake for

4:32

us. Everything's at stake. Tribal

4:34

sovereignty. At the bottom line, tribal

4:36

sovereignty. When we talk about our youth, we're talking

4:39

about the future of our tribal communities.

4:40

The stakes are literally

4:42

incalculable. This is not a case about

4:45

winning for the other side. It is a case about

4:47

burning the world down. How

4:49

does it feel to know

4:52

that the future of federal Indian law is up

4:54

to these nine people? Feels

4:56

wrong and kind of terrifying.

5:01

Y'all, let's

5:03

sing. Y'all,

5:06

let's sing. You're

5:10

listening to This Land, a podcast

5:13

about the present-day struggle for Native

5:15

rights. From Crooked Media, I'm

5:17

your host, Rebecca Nagle. Goheen

5:19

tawetun, t'la kayetli k'ayla,

5:22

citizen of Cherokee Nation. In

5:24

season two, we followed how a string of

5:26

custody battles over Native children turned

5:29

into a federal lawsuit threatening

5:31

everything from tribal sovereignty to civil

5:33

rights. In today's bonus

5:36

episode, we're bringing you the Supreme

5:38

Court's ultimate decision

5:39

and the story of how it happened.

5:50

Iqwa was passed in 1978 after

5:53

Congress recognized between a quarter and

5:55

a third of all Native kids had

5:57

been removed from their families and tribes.

5:59

The law is meant to prevent

6:02

family separation in Native communities.

6:05

But recently, ICWA became

6:07

a target.

6:09

An odd group of special interests, including

6:11

adoption attorneys, corporate lawyers,

6:14

and right-wing groups, decided they

6:16

wanted to strike ICWA down.

6:19

In the last decade, the law has been challenged

6:22

nearly as many times as the Affordable

6:24

Care Act.

6:25

This

6:28

particular lawsuit started when that

6:30

group of special interests found a white

6:33

evangelical couple living in the suburbs

6:35

of Dallas. That couple, Chad

6:38

and Jennifer Bracken, wanted to adopt

6:40

a Native American toddler. But

6:42

the child's tribe found a Navajo

6:45

home, and according to ICWA,

6:47

that home was where the kids should go.

6:50

Along with the state of Texas, the Bracken

6:53

sued the federal government, saying ICWA

6:55

is unconstitutional because

6:57

The Indian Child Welfare Act discriminates

6:59

against non-Indians on

7:01

the basis of race. This is Matthew

7:04

Fletcher, law professor and citizen

7:06

of Grand Traverse Band of Ottawa and

7:08

Chippewa Indians. You heard his voice earlier.

7:11

He was also at the Supreme Court that day.

7:13

Waiting in line. Fun times. As

7:16

we've discussed on the podcast before, the

7:18

normal rule that U.S. laws can't

7:20

treat people differently based on race doesn't

7:23

apply to tribes and tribal citizens.

7:26

That's because Native nations are political, not

7:28

racial groups.

7:29

Lots of statutes, going

7:31

back to the very first Indian

7:33

statute of all time, 1790, will

7:36

say things like, this statute applies

7:38

to Indians. So it would

7:40

be really disruptive

7:42

to the point of catastrophe to

7:45

say that a statute that applies to

7:47

Indians

7:49

is unconstitutional. Two

7:52

other couples joined the Bracken's lawsuit. They

7:54

all say ICWA discriminated against them

7:57

because it wouldn't let them adopt Native kids.

7:59

Here's what's wild about that claim.

8:02

Except for one case, all the foster

8:05

parents actually got custody over

8:07

native relatives who also wanted to raise

8:09

the kids.

8:11

Those foster parents, and Texas,

8:14

had more than one reason they said ICWA

8:16

was unconstitutional. Their

8:18

second big argument was that Congress

8:21

doesn't have the authority to pass

8:23

a law like ICWA in the first place.

8:26

But Matthew Fletcher says, what that

8:28

misses, of course, is that Congress

8:31

can deal with Indian child welfare because

8:34

of the special relationship that tribes

8:36

in the United States have. In Indian affairs,

8:39

there really are no states' rights. Their

8:42

third argument is more narrow than

8:44

the first two. It's called anti-commandeering.

8:48

That's a legal theory that basically

8:51

says the federal government can't tell

8:53

states they have to enforce

8:54

federal laws. So

8:56

when tribal leaders and advocates say

8:59

the stakes are everything, everything's

9:01

a stake for us, that's because those legal

9:03

theories strike at the foundation

9:06

of tribal sovereignty. If ICWA

9:08

can't treat Native Americans differently based

9:10

on race, what about the clinic where I

9:12

get my health care? What about tribal

9:15

casinos that operate where non-native

9:17

companies can't? If Congress doesn't

9:19

have the constitutional power to protect

9:21

native kids, does Congress have

9:23

the power to protect our land, our

9:26

water,

9:26

our way of life? The

9:28

fear is that this case is like

9:31

the first upright domino in a long

9:33

row. If they can topple ICWA,

9:36

they can topple everything else.

9:40

There is growing evidence that the special

9:42

interests behind this lawsuit see

9:44

it that way too. After our reporting

9:46

connected the dots between the Bracken's pro

9:48

bono corporate lawyer and the casino

9:51

industry, he helped file a

9:53

second lawsuit.

9:55

In that case, he claimed tribal

9:57

gaming in the state of Washington was unlikely.

9:59

constitutional racial discrimination

10:02

because tribes can operate casinos

10:04

where his client can't. The

10:07

alleged harm in this case is more

10:09

straightforward than bracken.

10:12

It's money. All

10:16

of this was on my mind when I walked into

10:18

the Supreme Court last November. After

10:21

checking in at the Public Information Office

10:23

and going through security twice, I was

10:25

led into the courtroom.

10:27

I had never been inside before. I was

10:30

surprised by how small it

10:32

was. The little room was still

10:34

grandiose. Large white marble

10:36

pillars surrounded our chairs. On

10:39

the far end of the room was a tall

10:41

red curtain. It stretched

10:44

from the floor to the ceiling.

10:46

Without making a noise, the fabric

10:48

parted when the justices entered

10:50

the room. We will hear argument this morning

10:53

in case 21-376, Holland

10:56

v. Bracken and the consolidated

10:58

cases.

10:59

The first lawyer to speak was Matthew

11:01

McGill from Gibson Dunn. He

11:04

represents the foster parents, including

11:06

the Bracken's.

11:06

Thank you, Mr. Chief Justice,

11:09

and may it please the Court. This is

11:11

happening now for a second time to the

11:13

Bracken's as they try to adopt Y.R.J.,

11:16

who is now four and a half years old. Not

11:19

even Y.R.J.'s deep attachment

11:21

to the Bracken's after being part of their family

11:24

for four years is sufficient.

11:26

But McGill was quickly interrupted.

11:28

What do we do about your standing problem?

11:31

That's Justice Neil Gorsuch asking

11:34

about standing. Standing is a legal

11:36

term that means you have the right to file

11:38

a lawsuit.

11:39

You've sued federal officials, not

11:42

the state courts who actually are tasked

11:44

with operating. I think my

11:46

answer to that,

11:49

Justice Gorsuch, starts with the

11:52

traceability standard, which is de facto

11:54

causation. No official

11:57

can dictate to a state family court

11:59

what to do.

11:59

I'm

12:02

sorry, I did not hear the question. Can any federal

12:04

official that you sued tell a

12:07

state court what to do? No,

12:10

Your Honor. Okay, I would think that might be the end of it. What

12:13

am I missing?

12:14

If the plaintiffs don't have standing, the

12:16

whole thing goes away. You can't sue

12:18

the federal government just because you don't

12:20

like a law. You have to prove that that

12:23

law harmed you and that

12:25

a court ruling in your favor fixes

12:27

that harm.

12:28

As we've talked about on this podcast a

12:31

lot, there are big reasons

12:33

to question the standing in this case.

12:36

Other justices joined in. I'm going to list

12:38

a series of statutes and I just want to yes

12:41

or no. Sotomayor had a very

12:43

specific point she wanted to make and

12:45

she had a clever way of getting at it. The

12:48

statute protecting service members from

12:50

default judgments. Does Congress

12:52

have the power to pass that?

12:55

The 1799 Trade and Intercourse Act.

12:57

How about a law from 1888 setting forth

13:01

certain evidence that an Indian woman

13:03

could use in state court to

13:06

prove that there was a common law marriage?

13:08

It's that

13:10

it would be an anti-commandeering violation. That

13:12

was the lawyer representing Texas. He

13:15

told Sotomayor that many of the statutes

13:17

she listed were unconstitutional.

13:20

What that

13:20

did was help identify and

13:23

reinforce to the court. Matthew Fletcher

13:26

again. That even a narrow

13:28

opinion in this case, striking

13:31

down some or parts of the

13:33

Indian Child Welfare Act has vastly

13:35

broader consequences.

13:36

Justices Kagan and Jackson

13:39

also asked Texas and McGill some

13:41

tough questions. At this

13:43

point, it looked like four justices

13:46

were skeptical that Iqwa was unconstitutional.

13:49

But the tribes needed five to

13:51

win.

13:52

I didn't see much more support other

13:54

than those four from the rest of the court. Congress

13:57

couldn't give a preference for white

13:59

families.

13:59

for white children, for black families,

14:02

for black children, for Latino families,

14:04

for Latino children, for Asian families, for

14:06

Asian children. There's a limited number

14:08

of vaccines, can the federal government decide

14:11

to distribute those to Indians

14:13

and not others?

14:15

That was Justice Kavanaugh and Chief

14:17

Justice Roberts. Along with Alito,

14:19

they kept framing the nation-to-nation

14:22

relationship between tribes and the federal

14:24

government as some type of racial preference.

14:27

Justice Alito was

14:29

just viciously mocking the

14:31

whole enterprise throughout the oral argument.

14:34

Before the arrival of Europeans,

14:39

the tribes were at war with each other.

14:41

That was Justice Alito stating

14:43

incorrectly that Native nations

14:46

were all at war with each other before

14:48

Europeans arrived, as if

14:50

colonization and genocide brought

14:53

peace to this continent.

14:55

We have to add Clarence Thomas to

14:57

the Alito camp because of things he's written

15:00

over the years. If you're keeping count,

15:02

that is up to eight justices, four

15:04

who appeared to support Iqwa and four

15:07

who seem to be buying at least some

15:09

of the petitioner's claims.

15:10

And that sort of leaves Justice

15:13

Coney Barrett. Justice Amy

15:16

Coney Barrett. She asked the

15:18

same narrow question four

15:20

times. So I want to focus just on the

15:22

active efforts provision. I want to take you

15:24

back to the active efforts provision. Is this

15:27

the active efforts provision? I want to get a

15:29

grip on how this works. Fletcher

15:32

says we don't know a lot about Barrett's

15:34

thinking on tribal sovereignty because

15:36

she doesn't have a long track record.

15:38

She's had a few cases and actually

15:40

written an opinion or two that

15:42

aren't so bad. But

15:45

she is a very,

15:47

very conservative judge and she

15:50

seemed to be positioning herself

15:52

in the middle in this case. I left oral

15:55

arguments thinking Justice Amy Coney Barrett

15:57

was the key vote.

19:57

not

20:00

believe it they fucking lost. Oh

20:04

my god. I

20:08

can't believe it. Oh my god.

20:11

The Bracken's in Texas lost.

20:14

It was not even close. The final

20:16

vote was 7-2. Writing for the

20:19

majority, Justice Amy Coney Barrett

20:21

was joined by Justices Jackson, Kagan,

20:24

Sotomayor, Gorsuch, and

20:27

two other people for which I will now eat

20:29

my words, Chief Justice Roberts

20:32

and Justice Kavanaugh.

20:36

The first person I wanted to talk to was

20:38

law professor Matthew Fletcher. All right,

20:40

we're recording. I'm recording.

20:43

You're recording. We're

20:45

all recording. So much recording.

20:48

The first thing I wanted to ask you is actually if you

20:51

can sort of think back to how you have

20:53

felt the past few weeks

20:55

waiting for the decision to come

20:57

out. I was really thinking about how I'm

20:59

going to have to rewrite my federal Indian law

21:01

case book. I guess maybe I was

21:03

trying to move myself through

21:05

the stages of grief. What stage

21:07

of grief do you think you were in? I was trying

21:10

to talk myself into acceptance. I

21:13

was really angry after

21:15

oral argument. I was

21:17

just angry at everything

21:20

about this, the fact that we were even in the Supreme

21:23

Court with a case this utterly

21:25

ridiculous.

21:27

I mean, all the adoptions are done. Why

21:29

are we here? It's all a performance

21:32

and they're dragging real

21:34

life people, Indian people, Indian

21:36

tribes, into this political

21:40

jester show. I was wondering

21:42

if you could take me back to

21:44

the moment that the decision

21:47

came out and at what

21:49

point as you were scrambling

21:51

to read the decision or following

21:53

it on Skodas blog, did you realize

21:56

that the petitioners had lost

21:59

on every

23:57

with

24:00

a dissertation on congressional

24:02

Indian affairs power.

24:04

So when you are looking at congressional

24:06

powers, you have to look at the text of the constitution.

24:09

And what we have in the constitution to start

24:11

with is the Indian commerce clause, but

24:14

that's not the whole length of,

24:16

or not the whole scope of congressional powers in

24:18

Indian affairs. Congress and

24:20

the federal government generally have entered

24:23

into, as you know, almost 400 treaties

24:25

with Indian tribes. So there's also

24:27

this thing called the treaty power. And

24:29

the treaty power broadly expands

24:32

congressional powers to include things that are beyond

24:35

what is enumerated in the constitution. The

24:38

third really big one, this is really critical, and

24:40

I was so glad to see it in the majority opinion,

24:43

is the trust responsibility. And

24:45

we often refer to the US as our trustee, sort

24:47

of

24:48

wryly, sarcastically. But

24:51

really what it is, is the duty of protection

24:53

that the United States has in relation

24:55

to individual Indians and the Indian

24:58

tribes. And then the court

25:01

listed literally dozens of

25:03

opinions

25:04

in which it's acknowledged

25:06

the broad scope

25:08

of congressional power over Indian affairs. And

25:11

this was not the day to limit that

25:13

scope, to reverse a lot of those cases. The

25:15

United States has used Indian

25:18

families from the very beginning to coerce,

25:21

influence, persuade

25:24

Indian tribes to do certain things. It's a tool

25:27

of colonization effectively. And

25:30

the court just pointed out the obvious,

25:32

which is Congress has been doing this all along.

25:35

They have broad Indian affairs power. That's

25:37

the end of the argument. The

25:41

majority opinion is short, only 34

25:44

pages. There's almost 100

25:46

more pages, however, of

25:49

other stuff justices had to say.

25:53

Justices Alito and Thomas dissented.

25:55

They both ruled Iqwa is unconstitutional,

25:59

but didn't agree on it.

25:59

on why, so they wrote separately.

26:03

There were also two concurring opinions.

26:05

That happens when a justice agrees

26:07

with the majority, but wants to add something

26:10

of their own.

26:11

Justice Gorsuch added a very detailed

26:13

history of how, for generations,

26:16

the U.S. government has systematically

26:18

removed native children from

26:20

their families and tribes.

26:22

Justice Kavanaugh added that although

26:24

the plaintiffs don't have standing in this

26:27

case, he does think ICWA

26:29

raises equal protection concerns.

26:33

I had one last question for Matthew

26:35

Fletcher.

26:36

Do you think that Matthew McGill,

26:38

Gibson Dunn, the right-wing

26:40

groups and the private adoption attorneys that

26:43

brought this case will stop

26:45

here? Do you think that the bigger attack

26:48

on ICWA and tribal sovereignty is over?

26:51

If

26:52

they think that

26:53

the concurring opinion from Justice Kavanaugh

26:56

is a signal

26:58

to them that there's an

27:00

audience for the equal protection argument,

27:03

then they'll keep going.

27:05

I really don't think there is. I don't know

27:07

how they find

27:09

a vehicle to challenge ICWA

27:11

under equal protection because they

27:14

couldn't find a vehicle in this case. They

27:16

don't have standing. You know, they're like

27:19

puppies who took a newspaper to

27:21

the nose today. And I don't know if they're

27:23

gonna come back or not. My conversation

27:26

with Matthew Fletcher answered most of

27:28

my questions, but there were a few things

27:31

I was still processing. So

27:33

I called up another lawyer, a man

27:35

named Ian Gershengorn. If

27:38

you've been following the case closely, you

27:40

might recognize Ian's voice. That's

27:42

because...

27:43

I did the oral argument on behalf

27:45

of the tribes. And if you're a longtime

27:48

listener, you might also remember Ian from

27:50

season one. He argued both Murphy

27:52

and McGirt in front of the Supreme Court.

27:55

I talked to Matthew Fletcher about how the court ruled

27:57

on that big, complicated question

29:59

led by a bunch of people,

30:02

including those at NARF

30:04

and at NCAI. That is the Native

30:07

American Rights Fund and the National Congress

30:09

of American Indians. They're kind

30:11

of like the ACLU and NAACP

30:15

in the Native community.

30:16

Together, they started something called the

30:18

Tribal Supreme Court Project. And

30:21

they sort of had looked

30:23

at how tribes were faring in the Supreme

30:25

Court and realized that tribes were faring very badly

30:28

in the Supreme Court. So it was a matter

30:31

of getting Supreme Court expertise

30:34

to tribes and getting knowledge

30:36

about Indian country and Native American law

30:38

to Supreme Court experts and seeing

30:41

if that would change things. And that

30:43

was how I got involved.

30:46

So with respect to this case, it was a tremendous

30:48

amount of work that went

30:50

into the amicus strategy.

30:53

For people who don't know, amicus is

30:55

a weird little Latin word that means friend.

30:58

Even if you're not part of a lawsuit, you

31:00

can still file an amicus brief

31:02

with the court supporting one side or the

31:04

other.

31:05

We had briefs from

31:07

law professors on the history of tribal

31:10

relations to try to deal with some of the constitutional

31:12

issues. We had briefs

31:14

from groups that

31:16

work in the adoption space and talked

31:19

about how important ICWA was,

31:21

how ICWA had become the gold standard. We

31:24

had powerful briefs from tribal

31:26

members who had been involved actually

31:28

in these adoptions. The number of people

31:31

who worked on this is beyond my ability

31:33

to count.

31:34

I, as an advocate, am focused on changing the minds

31:36

of nine people. There were five of those nine

31:39

people. But all

31:41

of these cases happen in a broader social

31:44

context. And a lot of

31:46

effort was paid to

31:48

making sure that the public understood

31:51

what this case was about. I think there were

31:53

still some stories that told

31:56

the Bracken's version of events uncritically.

32:00

in ways that I think were

32:02

less than factually accurate. But

32:04

it was a small

32:07

percentage of the overall coverage. And I think especially

32:09

when you compare

32:12

it to the last time ICWA

32:14

was in front of the Supreme Court, I think

32:16

you can see a really big

32:17

difference. I agree with that. And honestly,

32:20

some of your reporting is a part of that, right?

32:22

It's a part of getting the story out.

32:25

It's not to drown out the other side, but it's

32:27

to put balance, to fact check, to

32:30

put things in context.

32:33

Last Thursday, when the decision

32:35

came down, Sandy Whitehawk was in a car

32:37

riding through rural Minnesota. And

32:40

I'm in the middle of the woods to back on

32:42

some back road. So beautiful

32:44

up here. It's just all trees

32:47

and

32:48

lakes, trees and lakes everywhere

32:50

you go. Sandy Whitehawk is to Tchongo,

32:52

Lakota, from the Rosebud Reservation

32:55

in South Dakota. You might remember

32:57

her from earlier episodes. Sandy

32:59

was adopted out before ICWA was passed.

33:02

Today, she advocates for Native kids

33:05

to stay with their families. I'm on

33:07

my way over to the Leech Lake Reservation

33:10

because

33:10

I was here for the came to

33:12

big drum ceremony. As the landscape

33:14

rolled by, Sandy's phone started ringing.

33:17

And I get the phone call. And

33:19

my friend Priscilla Day, who I'm staying with,

33:21

says, Sandy,

33:23

the decision was in

33:26

our favor, 7 to 2.

33:30

And I went, what?

33:34

And I was just in shock because I really

33:36

didn't think it was going to be upheld. Only

33:40

a really small part of me let

33:42

myself hope that it would. People

33:45

wanted to talk to Sandy about the decision.

33:47

They wanted to know what she thought. They wanted

33:50

to interview her.

33:51

But she didn't feel ready to speak. I

33:54

thought, better not talk to

33:56

anybody because I don't want to force

33:58

myself to try to. sound

34:01

coherent because I wasn't feeling that. I was just

34:04

beside myself with, is this really

34:06

true? Sandy got up to Leech Lake

34:08

and spent the evening in ceremony. People

34:11

may think ceremony is all this

34:13

mystical experience but

34:15

it's not. It's a quieting

34:17

of your spirit. It's

34:20

the slowing down of your mind.

34:23

That drumbeat that

34:25

is our mother. That drumbeat connects

34:28

us to the earth who

34:30

connects us to who

34:33

we are in our life. I

34:35

mean it's everything. Sandy needed

34:37

that time to let it all sink in.

34:39

It wasn't until the end of ceremony was over.

34:43

People were clearing out and leaving. Somehow

34:46

that just brought me full circle back.

34:50

In that moment it came to her. A

34:53

vision of sorts. It was almost

34:55

like a timeline but

34:58

instead of seeing it in order she

35:00

saw it all at once.

35:02

In a flash before her

35:05

eyes she saw all the

35:07

work and all the people

35:10

who made this victory possible.

35:13

And all I could think of were

35:16

those grandmas back in the 70s

35:19

who made their way to DC. All those

35:22

mothers who were willing to put

35:24

themselves in front

35:27

of a court system that

35:30

was still very very prejudiced

35:32

toward Indian people. And

35:35

how intimidating that process

35:37

must have felt for them but because

35:39

of the love of their children and

35:42

their grandchildren they did it.

35:45

She could see all the people who fought for

35:47

Iqwa when it passed. You know Burt Hirsch

35:49

is the one who said well let's do a study and find

35:51

out how kids are doing. She could

35:53

see all the research native people had done

35:55

since then to show native kids are better

35:58

off with their families.

35:59

A lot of research ended up in the opinion.

36:03

Lila George, she wrote

36:05

a paper in 1994 about

36:08

why ICWA was important. She was

36:10

cited. Even Sandy's

36:12

work was there. Gorsuch cited

36:14

it. They used our study about mental

36:16

health outcomes for Native adoptees.

36:19

She saw the social workers and trainers

36:22

and advocacy organizations. All

36:24

the way up, you know, all the lawyers

36:26

who worked hard. She saw all

36:29

the Native families

36:29

who fought to keep their

36:32

children. And I thought about all the ceremonies

36:34

that have taken

36:37

place over these

36:40

generations and

36:42

how prayers were said for

36:46

this work. Prayers were said

36:48

for our families. So many

36:51

places that I have been, where

36:53

you will hear somebody say,

36:56

my grandma testified here, you

36:59

know, my aunt, and then

37:01

they'll have a story.

37:04

So if this wasn't, you

37:07

know, one or two families, this

37:10

was a collective.

37:15

Native people knew how important

37:17

this case was, and

37:19

they fought for it. We've always

37:21

known that them coming after our

37:23

children would destabilize

37:26

tribal sovereignty.

37:28

But now they can't.

37:31

It just finally

37:34

feels like a protection. Today,

37:40

the Indian Child Welfare Act stands.

37:43

That victory, however, just

37:45

maintains the status quo.

37:47

The Supreme Court didn't change a thing about

37:50

Iqwa or tribal sovereignty or

37:52

even its own precedent.

37:54

It simply followed the law.

37:57

That's it. That's all. But still...

38:00

It's remarkable.

38:01

That's because when it comes to tribal

38:04

sovereignty, the U.S. government

38:06

is spineless. Most often,

38:09

when non-Native people like the Brackenes

38:12

want something that belongs to a tribe,

38:15

like our land,

38:16

our sovereignty, or our children,

38:19

they get it. Even when the law

38:22

clearly protects the tribe. Sometimes

38:25

those protections, like the text

38:27

in a treaty, just gets ignored.

38:30

Other times, though, something worse

38:32

happens. To satisfy those

38:35

non-Native demands, the

38:37

U.S. government comes along and

38:39

changes the law.

38:41

That's where we get big setbacks

38:44

for tribal sovereignty. And

38:46

that's what people feared would happen

38:48

in this case. For a long

38:50

time, for a very

38:53

long time, what

38:55

Indigenous nations have been asking

38:58

of your government is simple.

39:01

Follow the law. Just

39:04

follow the law. Justice

39:09

Gorsuch wrote about this at the end

39:11

of his concurring opinion. Slightly

39:15

condensed, it reads, Often,

39:18

Native American tribes have come to this

39:20

court seeking justice, only

39:22

to leave with bowed heads and

39:24

empty hands. But that is

39:27

not because this court has

39:29

no justice to offer them. Our

39:32

Constitution reserves for the tribes

39:34

a place,

39:35

an enduring place in the structure

39:38

of American life.

39:40

In adopting the Indian Child Welfare

39:42

Act, Congress exercised that

39:44

lawful authority to secure the

39:47

right of Indian parents to raise

39:49

their families as they please. The right

39:51

of Indian children to grow in their

39:53

culture, and

39:55

the right of Indian communities

39:57

to resist fading into the twilight.

41:40

on

42:00

strict scrutiny, me and my co-hosts, fellow

42:02

law professors Kate Shaw and Melissa Murray, cover

42:05

the Supreme Court and the legal culture that surrounds

42:07

it. We break down the latest headlines and the

42:09

biggest legal questions facing our country, from

42:11

Mipha Pristone to voting rights to trans bands,

42:14

and we tell you how to fight back against

42:16

a few robed

42:16

weirdos on a power trip. New

42:18

episodes of strict scrutiny drop weekly wherever

42:21

you listen to podcasts, plus bonus episodes

42:23

when the Supreme Court takes away another one

42:26

of our rights.

42:28

In 2014, Adelanto, California,

42:32

a small town in the Mojave Desert, was

42:34

so broke there was talk of dissolving

42:36

itself completely. Then along

42:38

came John Bug Woodard Jr.,

42:41

a 63-year-old gun-toting conservative

42:44

hippie who had a wild idea to

42:46

save Adelanto. I got on old

42:49

Google.

42:49

I did a little Googling and

42:51

I found out the secret. The secret,

42:54

according to Bug, via Google, was

42:56

cannabis. I've heard those cannabis

42:58

shops make a lot of money.

43:00

What started as a simple solution

43:03

to revive this small town would

43:05

lead to a series of backroom dealings,

43:08

a shocking scandal involving the FBI.

43:11

I'm David Weinberg, and this is Dreamtown,

43:14

the story of Adelanto. Listen,

43:17

wherever you get your podcasts.

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