Arun Venugopal: I'm Arun Venugopal in for Melissa Harris-Perry. This is The Takeaway. Imagine being taken from the only family you've ever known, you're then placed with a family that knows nothing about you or your culture and your birth family can do nothing about it. This is not the beginning of some awful movie but the reality faced by countless Indigenous and Native families.

According to the National Indian Child Welfare Association, up to 35% of Native children were removed from their families by state child welfare and private adoption agencies. That was until 1978 when the Indian Child Welfare Act was enacted and mandated federal requirements that protect the interests of the Native child, their family, and their tribe. The podcast, This Land from Crooked Media focuses on a federal challenge to the law in their latest season.

Reporter: Shock waves are going through the Native American community and that's after a federal judge calls landmark legislation involving Native American adoption illegal.

Rebecca Nagle: For the past four years, I've been following one case that's now sitting on the steps of the Supreme Court. How did this small step towards addressing generations of family separation become a target?

Arun Venugopal: Melissa Harris-Perry recently spoke to Rebecca Nagle, journalist and host of This Land.

Rebecca Nagle: We are telling the story of one case. It's a federal lawsuit and it started when a white couple living in the suburbs of Fort Worth wanted to adopt a Native American toddler, but that child's tribe, Navajo Nation, had identified a Navajo home and a federal law called the Indian Child Welfare Act said that's where the child should go. The white couple sued. They didn't only sue to get custody of the child, which they actually won and rather quickly, but they filed a federal lawsuit to try and strike ICWA down. We're still waiting to see if the Supreme Court will take that lawsuit. It's likely and it's a lawsuit that threatens not only the future of this one law but the legal structure defending tribes and the rights of tribal nations.

Melissa Harris-Perry Let me take just one more beat on this particular story. These potential adoptive parents actually were able to adopt the child. Why did they feel a desire and interest in addressing this particular policy, this law?

Rebecca Nagle: That's a really, really, really good question. The story that they tell publicly is that they filed the federal lawsuit at a time when it looked like they weren't going to win custody and the law was threatening to tear their family apart, but we were actually in our reporting able to piece together a timeline and they actually filed the federal lawsuit the same week, the child's tribes agreed to the adoption. They basically filed the lawsuit right before the path was cleared for them to adopt. It's a really good question. There's actually the Brackeens are the namesake and the lead plaintiffs in the case. There are actually three non-Native foster families who are part of the lawsuit. Two of those foster families successfully adopted the Native child in question so why they pursued this lawsuit is a really good question.

Melissa Harris-Perry All right, let's back up a little bit so that we can move up to the moment of this case. Why was there even a need for the Indian Child Welfare Act? What's behind it?

Rebecca Nagle: Before ICWA passed, like you mentioned up top, an estimated 25% to 35% of Native kids had been removed from their tribes and from their families. Two things were going on, One, the Bureau of Indian Affairs was actually running a program called the federal Indian Adoption Project to purposely take Native children away from their families and place them for adoption in white homes. The second thing that was happening was racism and child welfare agencies that were looking at Native children being raised by a grandma and other things that are really common in Indigenous communities and saying that was- those parents or those families were unfit and taking the children.

ICWA passed in 1978. I think you can really think of it too as coming in a wave of civil rights legislations that we saw in the '60s and '70s that looked at racist and abusive practices that were happening in states, and Congress put measures in place to prevent that from happening. ICWA was one of those measures to protect Native families and to prevent family separation in Native communities

Melissa Harris-Perry It's a stunning reminder there was obviously a moral, emotional, political, ideological outcry in recent years where we've talked about family separation at the border relative to migrants coming in through the US Southern border, but it is a reminder that family separation was not a brand new policy at all in the US.

Rebecca Nagle: Absolutely. The United States government has been systematically separating Native children from their families for generations. In the late 1800s, the United States started rounding up Native children and forcing them to go to boarding schools which were really assimilation camps. The explicit goal of those schools was to separate Native children from their tribes and from their culture so that eventually, there would no longer be Native people. The same goal was part of the Indian Adoption Project, the idea being just that Native children were simply better off in white homes.

I would argue that it's still happening today. Racial disparities for Native children and for Black children within foster care is shocking. We looked at one case that happened in Minneapolis. In Minneapolis, Native kids are 35 times more likely to be removed from their families than white children. In the state of Minnesota, one in three Native kids, before they turn 18, will enter foster care, and Native babies, one in 10 Native babies will enter foster care before their first birthday. For white babies that age, the rate is one in a hundred.

The majority of these kids are not being removed for allegations of abuse, the underlying things are neglect. This nebulous category of neglect is sweeping up disproportionate numbers of children who come from families that are poor and families of color.

Melissa Harris-Perry Neglect is often kind of just a catch-all phrase for meaning poverty.

Rebecca Nagle: Exactly, exactly. You can really see it in the stories that we tell this season, we go in-depth in some of those stories that happened that precipitated this case, but like in one custody case, a grandma had to fight the child welfare system for three years and then fight the white foster family that had her grandchild for about a year and a half for another three years to finally be able to adopt her grandchild. The circumstances that led to her grandchild going into foster care in the first place was just that the family became homeless. You can look at their story and see if that had never happened, that child probably would not have spent all that time in the system.

Melissa Harris-Perry It does feel like, again, if we're talking about litigants who are able to successfully adopt in their individual case, that there still might be something going on here about presumptions of some kinds of families, maybe heterosexual, two parents married, middle income or higher families as being inherently better for children. Do we actually know anything about what is inherently better for children relative to their life outcomes?

Rebecca Nagle: Yes, all the data shows that all children do better when they stay with family. Children in foster care who are in what people call a kinship placement are less likely actually to experience abuse and neglect while they're in the system. Even studies have traced them, followed those children into adulthood, and those children have better outcomes. ICWA, which was passed in 1978 which is actually really ahead of its time because it prioritizes first placing children with family, then placing children with other tribal members, and then placing children in other Native homes, and child welfare policy across the board has really started to look more and more and more like ICWA.

I would say that there is a deep class bias and you can find out-- I spent hours going through the transcripts of the actual underlying custody cases behind this federal lawsuit. One of the foster fathers made an argument that he was a better home for a child because he had more bedrooms in his house. He was worried that her aunt had too small of a house and she wouldn't have privacy.

Another foster dad in one of these cases said that the grandmother shouldn't have custody because since the child had moved in with her grandmother, she looked heavier. He talked about the body size of a seven-year-old as a reason why he should have custody. All those messages around class are deeply embedded in these cases.

Melissa Harris-Perry How is it that you found these stories in order to follow them and I actually have an image of you in my head of sitting here reading, poring through these cases and these arguments, but what was the initial spark? How'd you find them?

Rebecca Nagle: Well, this case threatens the legal structure defending tribal sovereignty. In the lawsuit, they're not just arguing that the Indian Child Welfare Act, this piece of legislation that's really important for Native families, they're not just arguing that that should go away. It's this kind of tricky legal argument but they're basically saying that ICWA is based on race and therefore it discriminates, it's a disadvantage to these white foster parents. It's not fair to the Native kid and it should go away because it discriminates based on race.

There are a ton of laws, everything from healthcare to tribal self-governance to Indian gaming, where tribal nations, Indigenous nations, and tribal citizens are treated differently, not based on race but because of our unique political status and our treaty relationship with the United States government. The scary thing about this federal lawsuit is if ICWA is unconstitutional because it's based on race, well, what about the hospital where I'm going to go this afternoon for a doctor's appointment? If you went to that hospital if you're not enrolled in a few tribes that are here in Northeastern Oklahoma, they would turn you away. How is it ICWA racial discrimination but that hospital constitutional?

Melissa Harris-Perry: You suspect, or the podcast suspects that maybe that's the ultimate goal here?

Rebecca Nagle: Yes, I think that we need to look at these cases like we would look at any other federal lawsuit. If there was a federal lawsuit threatening, say, reproductive rights and Roe v. Wade, we wouldn't pick apart the details of one abortion case, we would see it as a threat to Roe v. Wade. What journalists and what the media and I would say even sometimes the courts have failed to do with these lawsuits is just look at the legal arguments that are being made and what are the implications of those legal arguments? We can even look at the lawyers behind this case and see where else they've made it.

They've made the same argument to try and stop tribal casinos from opening, the exact same argument. Without giving too much of what we get into in this season for them this season is that we found economic ties between the lawyers who are bringing these lawsuits and we also through FOIAs, and actually through a hack that was very convenient for our journalism, a paper trail of people behind these cases talking about how they're for the benefit of states rights and building conservative power.

Melissa Harris-Perry: Rebecca, now, I feel like we're about to go into this whole other land which is, can the courts ever bring justice, right? Because the courts are always right, it's that individual story. It's how do I rule in this case? It is this micro-focus when, of course, it is happening within this broader network but that's almost like why we need legislation rather than courts making a decision like this. It makes me a bit nervous just knowing, again, the fundamental, narrow individual way that courts typically tend to adjudicate cases.

Rebecca Nagle: I think this case and the story of this case, and what we found in our investigation touches on these big questions about our democracy. In this case, the majority of US states and the District of Columbia came out publicly supporting ICWA, the overwhelming majority of Native nations support this law. There's basically a handful of adoption attorneys, corporate lawyers, and right-wing organizations and operatives, and six non-Native foster parents who've decided that it should go away. If that argument was decided democratically, they wouldn't even get a vote. [chuckles] They don't have the support and the base, but because they're using the federal court system, they're dangerously close to overturning a 40-year-old law. I think we need to be talking about as a society is, is this really the role of the courts or is it corrosive to our democracy?

Melissa Harris-Perry: Although it might seem almost obvious, I just want you to walk us through it for a moment. What difference does it make if tribal sovereignty is either lost or eroded?

Rebecca Nagle: Yes, there's a whole host of laws that treat people differently because they're citizens of a tribe, or treat tribal nations differently. That goes all the way back to the beginning of the United States. Tribes are sovereign nations, we predate the United States. That sovereignty isn't something that the US granted us, it's something that's actually inherent. Our right to govern our citizens, our land, our languages, our culture, we need to be able to exercise that sovereignty if we're going to protect those things for future generations.

That's what's scary about this case is that it could have a domino effect where this case is the first thread that's pulled on a sweater that really undermines the legal structure defending tribes. I think it's an easy thread for people to pull because most people don't really know what a federally recognized tribe is. They don't really understand the law behind treaties and they don't know what ICWA is or NAGPRA or the Indian Gaming Regulatory Act, all of these things are new concepts for a lot of people. You can make a lot of radical arguments about tribes and tribal sovereignty and people don't realize how radical they are.

Melissa Harris-Perry: Given the nature of the sovereignty, could tribal courts simply rule differently? Is that basically a declaration of war? I'm not trying to be silly here, I'm trying to really think through the obvious challenges of sovereignty, and of course, because the title is This Land, it is sovereignty but also it is this adjacent and internal land space which makes nationhood and state-building quite difficult.

Rebecca Nagle: Yes, this was how I think of tribal sovereignty. Like I said, it's inherent, but of course, it's been impacted by colonization. It's something that generations of Native people, we've had to advocate, negotiate, and carve out spaces for our tribes to still have rights and to still exist. We're not supposed to be here, we're here because we pushed back. I think that's one of the other things that people who don't like the Indian Child Welfare Act don't like because it gives tribes the right to intervene and child welfare cases. Just like, I live here in Cherokee County in Oklahoma and if I were a child, the state of Oklahoma or my county could have a say in how a child welfare case goes.

Well, tribes also have an invested interest in our children and that's one thing that ICWA opponents really don't like is that tribes can have a say in child welfare and adoption proceedings. There is this I think fundamental lack of understanding of tribal sovereignty and then also respect for tribal sovereignty, and a recognition that tribes, just like a state or just like a county, should be able to have a say in what's happening to their citizens.

Melissa Harris-Perry: I have so many more questions. We could be here all afternoon, but apparently, I'm not allowed to do that. Rebecca Nagel, journalist and host of This Land, the award-winning documentary podcast. Rebecca is also a citizen of Cherokee Nation. Thank you for joining us.

Rebecca Nagle: Thank you so much for having me.

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