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- By Jenna Kunze
You might recognize Rebecca Nagle’s voice from Season 1 of her podcast This Land, produced by Crooked Media, where she told the story of a landmark court case—McGirt v. Oklahoma—that determined how much of Oklahoma is tribal land.
Two years later, Nagle is back with a second season of her podcast. This time it’s an investigation into how a custody battle over a Native toddler became a federal lawsuit that threatens everything from tribal sovereignty to civil rights.
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Native News Online interviewed Nagle on the far-reaching consequences of this federal court case, the takeaways uncovered in her reporting, and how the mainstream media has gotten it wrong. On the phone, Nagle’s voice comes through higher and faster than it does on her podcast, often punctuated with a booming laugh you don’t often hear in the series.
NNO: Could you summarize what Season 2 is about?
RN: So, we investigated how a string of custody battles over Native children turned into a federal lawsuit that's threatening everything from tribal sovereignty to civil rights. And so this lawsuit is about … the constitutionality of a law called the Indian Child Welfare Act (ICWA), which was created in the 1970s, after Congress found that about a third — 25 to 35 percent — of all Native kids had been removed from their families and tribes.
That law has been around for 40 years, but in the past decade, this small and kind of odd group of people decided that was a bad law and it should go away. They started bringing lawsuits to try and strike it down. In the past decade, ICWA has been challenged more times than the Affordable Care Act. So we investigate one of these lawsuits that is now waiting on the steps of the Supreme Court.
This is the Brackeen lawsuit, right?
The formal name of the lawsuit is Brackeen v. Haaland, and Brackeen is the name of the plaintiff, a white couple who live in the suburbs of Dallas. They were fostering a Native toddler and wanted to adopt him. But that toddler’s tribe, Navajo Nation, found a Navajo home (that wanted to adopt him), and a federal law said that that's where the child should go. And so the Brackeens sued. It would have been a normal adoption dispute, but then they got help from one of the most powerful corporate law firms in the United States and the Attorney General of Texas. Then the custody dispute blew up into this big federal lawsuit that is challenging the constitutionality of ICWA, but also has implications for tribal sovereignty and other important rights in this country.
What’s the connection between this lawsuit and dismantling tribal sovereignty?
(The plaintiffs) are arguing that ICWA is unconstitutional. They say that, it's basically racial discrimination, that you can't treat Native kids differently than non-Native kids and you can't treat non-Native foster parents differently than you would treat prospective Native foster parents or adoptive parents.
The problem with that is that the entire way that ICWA functions — like what children it applies to, what families it applies to, what adoptive parents it applies to — all has to do with tribal citizenship.
ICWA only applies to children who are either enrolled in a tribe or are eligible for enrollment. But the plaintiffs say that ICWA is about race. That's a very scary argument, because there are a lot of laws that treat Native people differently based on the unique political and legal status of tribes. So like if ICWA is unconstitutional because it's based on race, why is it constitutional for this group of people to have these specific land rights? Well, it's because we're a political entity, and those are based on a treaty.
You mention in the podcast that existing reporting on the Brackeen’s custody battle and the string of other cases that followed often failed to answer what you called basic questions a reporter should ask. Where did mainstream reporting fall short?
I think normally, when we look at a Supreme Court case, we look at ‘Okay, who is bringing this case? What are their politics? What are their motivations? What are the legal arguments that they're making? And what are the implications of those arguments?’
(Instead) basically what the media has done with these cases is they've acted as if this case is about a custody dispute, when of course it's not, because no Supreme Court case is about settling a family dispute. It's about big issues of constitutional law.
Especially...with this case, for the most part, the underlying custody disputes have been settled. So the actual outcome of the federal litigation actually won't impact, for the most part, where these kids are raised and who they live with. So it’s not about that, but that’s what the media coverage has made it about.
When the broader implications, and tribal sovereignty are brought up by the media, it's treated like it's like the opinion of Native Americans, and not something that you can look at constitutional law and see for yourself.
Do you think misrepresentation in the media is a symptom of ignorance?
Yeah, I think it's a symptom of ignorance. We need to stop talking about the lack of Native journalists and professionals and media organizations as a diversity problem, and start talking about it as a journalism problem, because the lack of baseline knowledge of tribes and tribal citizenship and federal Indian law and all these important things about tribal sovereignty and indigenous rights ... leads to inaccurate and bad coverage. And of course it does. If you don’t have a basic understanding of what you're covering, you're going to get it wrong.
Even The Atlantic published an article where they interviewed the Brackeens a couple of years ago, it came out early on in the case. There are some things that it appears that the Brackeens told The Atlantic, and The Atlantic was repeating the narrative of what happened in the case from their perspective. And if that reporter or that news outlet or the editor or the fact checker had found Jennifer's (Brackeen) blog like I did — which I found by using Google — they would have seen that the blog contradicted what they put in their article, sometimes very directly.
To me that's ignorance, but it's also laziness. Interviewing someone who has a stake in a case, and not fact checking what they tell you, and not making it very clear that you're just reporting based on their word is not a good standard of journalism. And that's what people keep doing.
You mentioned in your reporting some of the documents you and your team unearthed were never seen by the federal courts. Could you talk about what those findings showed, and the significance of them in determining the fate for ICWA?
The main thing that we found which I wasn't expecting was inaccuracies in … the narrative of the underlying adoption cases, as told in federal court.
Our big first finding was: The case starts with the story of Chad and Jennifer Brackeen, who had been fostering this Native toddler and they wanted to adopt him, but Navajo Nation had identified a Navajo home and, according to ICWA, that's where the child should go. (The Brackeens) felt like that would be horrible and disruptive and traumatic for the child, so they sued. But because of ICWA, they were going to lose.
(The Brackeens) did an interview with The Atlantic where they said they were blindsided by ICWA, and they had no idea. And then we got a hold of Jennifer's blog … and on her blog, she talks about how from the very beginning, they were told that they would never be able to adopt this child and they agreed to it.
The main (surprise) was that they won custody of the child—who we call Antonio in the podcast— relatively quickly, because they got extremely powerful legal help in the family court, which was also a really big surprise.
In family court, a law firm — which is one of the most powerful law firms in the country named Gibson Dunn — shows up, which is extraordinary. Then, what I think is even more extraordinary is that the Texas AG stoops down in family court to actually try and say that ICWA should be declared unconstitutional. Like, imagine if you were getting divorced and you were in a custody dispute with your ex or something like that, and you're going through that process. And then the Attorney General of your state is filing motions about what should happen in your divorce proceedings. It's very bizarre.
Then later in the season, really starting with episode four, we'll start to transition into digging into the people who are actually behind the attack on ICWA and what we found out about them.
Without giving too much away, what can you say about these people bringing suits against ICWA? What do they have in common with one another?
We found economic incentives tied to both the adoption industry and the legal status of tribes — basically, Indigenous rights — and economic incentives that were connected to the lawyers bringing these cases. The other thing that we found is a paper trail about how these cases are part of the bigger agenda to build conservative power.
How much is the knowledge of Indian boarding schools, that then led into the formation of ICWA, important in outlining this case in federal court?
Absolutely. I think when you look at federal Indian policy, you can see how, over the course of generations, Native children have been used in the project of genocide and assimilation, and have often been the tip of the spear in that project.
In my mind, you can draw a straight line from boarding schools to the Indian adoption project, that led to the passage of ICWA in the ‘50s and ‘60s, to what's happening in foster care and child welfare systems today, where Native children are still being removed from their families at alarming rates. And so I think that history is really important to learn.
I think it's not only important to learn to understand the trauma that Native families, Native children and Native communities have suffered, but how that trauma over the course of generations has consistently been justified. This idea that Native children are “better off” in white society or learning white ways or in white homes, and also this idea that people who are non-Native can come in and say, with good intentions or bad intentions, that they know what's best for Native children.
Who is your intended audience for the podcast? What can Native listeners learn from a story they may well know?
One of the big audiences I have in mind are Native people. These cases are very complicated and have really, really, really big impacts. I think there's a general awareness of ICWA … that there are these lawsuits challenging ICWA. I think it's really important that we understand this attack on ICWA because ICWA is important to our children and families, but also, because it is setting up a broader attack on indigenous rights. And I think it's important for people to understand the stakes of this case.
And then, you know, I think that most non Native people don't understand that much about tribes and tribal sovereignty and so I'm really passionate about helping that information be understood by more people.
How do you take care of yourself in doing this reporting, especially when it involves hard conversations with your own nation?
That's a really good question. Probably not as much as I should have. I have really amazing friends and family loved ones that have listened to me talk about this case. I think it's like the hardest thing I've ever reported. And I've reported on a lot of stuff that's hard material.
I think that it's really important to think about, like, we have a trigger warning at the beginning of that episode. And then at the end, we have a link to resources. And so we made like a resource page for when you're listening on Apple, and then it’s listed at the end and it's on the website. I, in my life, have survived trauma, and know that some content can trigger that trauma for me. And sometimes that actually can be something that is good and it can help me process something to hear about somebody who's experienced touches on that. But for me, it's really important that I can choose when and where and how I want that content.
What can listeners expect to learn in the remaining series?
So there are five episodes left. Starting with episode four, we start looking at the people who were behind the attack on ICWA, and the trajectory of how it all started and how we got to where we are today. We look at private adoption attorneys, corporate lawyers, and right wing organizations and funders. We really kind of pull back the curtain on not just what happened in these custody cases, but really who's behind this effort to overturn ICWA.
Interview conducted and condensed by Jenna Kunze. Photo courtesy of Rebecca Nagle.You can listen to Season 2 of This Land on Spotify, Apple Podcasts, Stitcher, or online at https://crooked.com/podcast-series/this-land/.
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