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It’s a lesser-known case in the docket for the Supreme Court, but if The Indian Child Welfare Act is overturned, it could have massive implications for the laws that govern Indigenous sovereignty in the United States. We talk with author and activist Rebecca Nagle about the case of Baby O and the Librettis and how their story led to Halaand v. Brakeen. But, we also investigate the money and interests behind the lawsuit. There’s a lot at stake. Maybe even the very nature of tribal laws, which were enshrined in the constitution itself. Though there are real Native children at the heart of the lawsuit, the overturning of ICWA is not just a custody battle.
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Music Credits: Making Contact Team
Making Contact Team
Salima Hamirani: I’m Salima Hamirani, and on today’s Making Contact, we’re going be looking at a truly landmark case that the Supreme Court is currently considering and it’s one that I honestly hadn’t heard much about before I started working on this piece.
Supreme Court Hearing on ICWA: We will hear argument this morning in case 21376 Haaland versus Brackeen and the consolidated cases. Mr. McGill.
Salima Hamirani: In November of 2022, the Supreme Court heard oral arguments about the Indian Child Welfare Act or ICWA.
Supreme Court Hearing on ICWA: (fade in)…recognized and not lightly taken away because of the huge numbers of Indian children who are being taken away from their families, from their extended families, from their tribes, from their kin, from their community. And that was damaging the long-term interest of, of tribes. Last, last question…
Salima Hamirani: The case is super important if the Indian Child Welfare Act is overturned, more and more native children could be taken from their families, which is one of the things the law was trying to prevent in the first place.
Rebecca Nagle: So, when Congress passed the Indian Child Welfare Act in 1978 there had been a big national survey, actually about a decade prior, that had found that 25 to 35%, so about a third, of all native children had been removed from their family.
Salima Hamirani: That’s Rebecca Nagle. She’s been reporting on the aase for the Nation and on her podcast, This Land, And yeah, she just said that in 1978, a third of all native children had been removed from their families.
Rebecca Nagle: And so a couple things were going on. There was literally a federal program called Indian Adoption Project where the Bureau of Indian Affairs gave the Child Welfare League of America money to take native children and put them in white homes with the very racist thinking that they were better off there.
And then what was actually happening in much higher numbers was that state child welfare agencies were taking native children mainly just because their families were poor. And instead of getting those, giving those families resources or support, it was actually less expensive for them to place those children in white and middle class foster homes.
And so, Congress passed ICWA in 1978. The law does actually a ton of different stuff and I think the easiest way to think about ICWA is like a set of guardrails. And so that when a native kid is either entering foster care or in a private adoption proceeding, it’s harder to separate that child from their family and their tribe.
Salima Hamirani: So basically ICWA forces welfare agencies to try and place a child within their extended families before placing them in non-native homes. And even with ICWA in place, native children are still three times more likely to be removed from their families than other races, and over a half of them will be placed in non-native families.
That’s because of longstanding issues like racism against indigenous communities but also because there’s widespread non-compliance with the law.
And as stark as those numbers might seem it’s still an improvement from pre ICWA days. Back then, 85% of indigenous children removed from their homes were adopted into non-native families. And is this law, the Indian Child Welfare Act that could be overturned because of a lawsuit that made it all the way to the Supreme Court.
Rebecca Nagle: The big lawsuit is Haaland v Brackeen. And basically, the Librettis and their co-plaintiffs, who are two other foster families who wanted to adopt native children, they allege that ICWA discriminated against them.
Salima from interview: So discriminated how? can I ask you what the race is of the plaintiffs? because that seems to be at the heart of the lawsuit
Rebecca Nagle: Yeah, so, the Brackeens, Chad and Jennifer Brackeen are a white, upper middle class family that live in the suburbs of Fort Worth. Danielle and Jason Clifford live in Minneapolis. Interestingly, Danielle actually does have indigenous ancestry. Her father is first Nations from Canada. But she doesn’t identify herself as native or indigenous in any of her court filings. And her husband, Jason’s White and the Libettis are white. So those are, those are the plaintiffs.
Salima from interview: Okay, so just to be clear, they feel as if they’re being discriminated against because they’re white?
Rebecca Nagle: Because, only because they are not native. They weren’t chosen as the adoptive families for these kids, and that was unconstitutional racial discrimination that they experienced.
Salima Hamirani: The idea that ICWA is unfair for non-natives is the backbone of the argument for the opposition. Here’s part of the opening comments from Matthew d McGill on behalf of Everett Brackeen.
Supreme Court Hearing on ICWA: According to the federal government in 2020, there were over 11,000 Native American children in state foster care. The problem is, is that there are fewer than 2000 native American foster homes.
That means each year, hundreds, if not thousands of Indian children are placed in non-Indian foster homes, and sometimes there they bond with those families. Yet when those families try to adopt those children, ICWA rears its head for a second time, allowing tribes to play the proverbial ICWA Trump card at the 11th hour. This flouts the promise of equal justice under the law.
Salima Hamirani: So the plaintiffs are arguing that ICWA is racist, but that kind of falls apart if you look at any of the details of the case. Because if there’s racism in the child welfare system, then the story of the Librettis and Baby O shows us that is definitely not against white people.
Salima from interview: Okay. So Rebecca, can you talk to me about Baby O and how she came to meet the Librettis?
Rebecca Nagle: Yeah. So baby O was placed for adoption at birth. Her mother surrendered the baby under Nevada’s Safe Haven Law. Those were laws that were passed in response to high profile cases of children, you know, being left in a bathroom or in a dumpster. And they’re supposed to allow parents to abandon children, very young children in a moment of crisis without the fear of being prosecuted for abandonment.
When the baby was a few days old, she went home with a white couple who live in Sparks, Nevada named Heather and Nick Libretti. And a few weeks after she was in their home her father’s name was found on a lab slip. And he was contacted and he was interested in raising the child. And so, the case transitioned from being like a safe haven case to being a foster care case where the plan was reunification with the father.
The other thing that happened is that baby owes paternal grandmother was a citizen of the Ysleta del Sur Pueblo, which is a federally recognized tribe in El Paso, Texas, which meant that she was also eligible for citizenship. The case therefore fell under the Indian Child Welfare Act. So even if she couldn’t be reunited, with her dad, she would go to other family. And then if other family weren’t available under the law, what was supposed to happen was that she would go to the home of another tribal member.
Salima Hamirani: and there’s a reason that placing children with relatives is a good idea, even if the child isn’t indigenous.
Rebecca Nagle: So, in the decades that since ICWA was passed tons of research have shown that not just native children, but all children, in the foster care system do better when they’re placed with relatives. So, they’re less likely to age out of the foster care system. They’re less likely to reenter the foster care system. They’re less likely to have mental health or behavioral problems later.
Salima Hamirani: which is why ICWA is often called the gold standard of procedure in child welfare cases.
Rebecca Nagle: And I, I think it’s actually like, you know, we can look at what the research says, but I think it’s a pretty easy thing to understand. You know, just imagine a child in your life, and if something happened where their parents or their primary caregivers were no longer able to take care of them, would you want that child to go live with strangers or would you want that child to stay with you or another member of your family?
I mean, I think it’s something that a lot of us actually. Really do understand and doesn’t take a lot of explaining
Salima from interview: So were social workers supposed to reach out to Baby O’s family before they decided to let the Librettis keep her? Because, uh, you know, if ICWA is the gold standard for procedure in these kinds of child welfare cases, I’m, I’m curious to know what exactly happened in this situation.
Rebecca Nagle: Yeah. So one aspect of the law is what’s called placement preferences. And so what happens first in any case not just ICWA cases, is that social workers try to reunify the child with their parent. And so, in this case it was baby O’s father. he was struggling with a substance use disorder. And actually, one of the things to note was like he was trying to get access to treatment and social workers referred him to a treatment center that had a pretty steep intake fee. And when he told them he couldn’t afford the fee, they didn’t offer to write him a waiver. And so, there’s just like all of these little things where the case kind of just went off track.
Salima from interview: and, and then outside of the father they were, there were other family members?
Rebecca Nagle: Yeah, so there was a paternal grandmother that came forward and also a paternal uncle. They both started the paperwork and then both changed their minds. After that happened, her tribe identified 39 family members that could be potential foster care placements. They handed that list over to social workers in Nevada and social workers in Nevada didn’t contact anyone on the list. The tribe actually had to get a judge to order the social worker to start making those calls.
Salima Hamirani: And we should add here that it’s not just ICWA that requires social workers to contact extended family. It’s actually part of Nevada state law as well
Rebecca Nagle: Social workers are not only required to try and place children with family wherever possible. They’re also supposed to diligently search for those family members. And what we can see in the case of Baby O, is that social workers did the opposite.
Salima from interview: Rebecca, I think I also remember reading in your article in the Nation that during your research you actually were able to find even more relatives and I mean, you’re not even the social worker on the case.
Rebecca Nagle: We found two relatives who when contacted were interested in fostering and adopting baby O and who actually started the process. One woman actually went all the way through the process got her foster care license and actually fostered other children.
Salima Hamirani: But then the Labrettis decided to fight for custody.
Rebecca Nagle: They hired lawyers. They had conversations with family members who are interested in adopting and fostering baby O about why they shouldn’t do that and why Baby O is in the best place. Um, And ultimately they won the. Sympathies of the social workers who were working on the case.
And ultimately Nevada Social Workers in Washoe County threatened to place the child back with her biological mother on paper. But she would actually still live with Heather and Nick Libretti, basically if the tribe wouldn’t agree to let Heather and Nick Loreti adopt the child. And so under that very extraordinary circumstance there was a settlement agreement and Heather and Nick Libretti won custody.
Salima Hamirani: The Librettis one, custody of Baby O, even though they were supposed to be fostering her, not just under ICWA, but in most foster cases, the end goal is not to adopt a child out of their family, but to help with something called reunification
Rebecca Nagle: You know, in the ideal situation, the foster parents actually is supporting that process. So they’re doing, people call it bridging, but you know, maybe they’re inviting the family over to their home. Maybe they’re helping with visitation. You know, they’re helping with phone calls or cards and helping keep that contact between that child and their family. And here the Librettis, you know, the exact opposite.
We found actually two instances where they signed legal forums that they understood that they would not be able to adopt baby O. I think actually the county told us that they have all of their foster to adopt parents sign a legal form understanding that a placement is not a guarantee for adoption. And there was actually a period of time where the child was removed from their home because of some of their behavior. And then when the child was returned to their home, they signed a form again, understanding that the case wasn’t gonna lead to adoption.
Salima from interview: Right. And so I guess I just wanna summarize this for the audience so far. So Baby O’s family, her indigenous family did come forward, but the state agencies didn’t try very hard to comply with ICWA, even though it’s a law. And on the other hand, this white family who was fostering her, who violated the terms of their own signed agreements with the welfare agencies, somehow, they still managed to get custody of Baby O and they adopted her.
Rebecca Nagle: And the adoption is finalized, and so the federal lawsuit that is ongoing won’t impact their adoption. It’s, it’s final. So she is, she’s being raised by them.
Salima from interview: So that makes me wanna ask, with all of this background, how did the case make it all the way to the Supreme Court? If despite the law and everything that happened that the, the white couple still has custody of the child?
Rebecca Nagle: Yeah, the facts on the ground really do not line up with the case that the individual plaintiffs have made in front of the Supreme Court. And one of the ways that that’s legally relevant, is this question of whether or not the plaintiffs actually have standing?
Salima Hamirani: this part of the case is actually a huge deal because it’s a question of whether there should be a Supreme Court case at all. I’m gonna play you a little bit of the lawyers speaking on behalf of the tribal parties. It might sound like a lot of impenetrable legal jargon, but bear with us. We’ll explain.
Supreme Court Hearing on ICWA: you, um, and your opening statement, you said that this is a bad case to deal with this question because the individual plaintiffs don’t have standing.
Uh, your Honor. Thank you. So they don’t have standing for a number of reasons. First Redressability, right? This is a law review article. It does not bind a single state court judge that actually adjudicates a state court adoption proceeding. Second, there is no injury. In fact, there is not a single individual plaintiff who has had an adoption that existed from the time of the amended complaint through the Fifth Circuit judgment. And so there is no injury in fact.
Rebecca Nagle: So to fi to sue the federal government, to undo a big law like ICWA, you have to have, you have to meet certain criteria. You know, you can’t just file a lawsuit because you feel like it, I mean, you can, but like courts will throw it out. And some of that criteria is that you have to show that you were harmed by the law. And so maybe you can point to some harm. It’s weak, but maybe it’s there.
But then there’s this other thing that’s called redressability. And that means that when this law goes away, if ICWA is declared unconstitutional, the harm that you experience will be repaired, it’ll be redressed. And that doesn’t exist in any of the underlying cases because all of the underlying custody cases have been settled. They’re final, it’s over. And so even the one case where the Cliffords did not win custody an Ojibwe grandma won custody of her granddaughter. That adoption is finalized and ICWA being declared unconstitutional doesn’t allow the Cliffords to go back and open that case back up.
And so, yeah, there’s a real question about how this lawsuit’s still moving forward and how it even made its way to the Supreme Court.
Supreme Court Hearing on ICWA: the, the court has been crystal clear that standing these, that standing needs to be established in the lower court, that every case would have standing, there would be no advisory opinion.
This, is because, of course, what this court says binds everybody. And so the fact that that, uh, it’s made it this far through a erroneous standing ruling does not cure the, the standing problem that existed at the start.
Rebecca Nagle: I mean, it’s not talked about this way, but I think stripped down to its bones. It’s a reverse racism case, and I think what makes it kind of incredible is that it’s a reverse racism case where for the most part, the white plaintiffs actually got what they wanted.
Salima Hamirani: Stay tuned. We’re about to head into our very quick break, but coming up as we promised, this isn’t just a custody case. Challenging ICWA is really about dismantling the basis of indigenous political sovereignty. And we’ll explain how right after the break.
Amy Gastelum: Hi, I’m Amy Gastelum and I am jumping in to remind you that you are listening to Making Contact.
If you’re enjoying today’s show, leave us a comment. We wanna hear from you. Find us online at radioproject.org, and on Twitter we Making underscore Contact. Okay, now back to the show.
Salima Hamirani: Welcome back to Making Contact. Today we’re looking at a lawsuit at the Supreme Court that could overturn the Indian Child Welfare Act or ICWA. And the second half of today’s show, we’re gonna talk about how this lawsuit could dismantle indigenous political sovereignty. And that’s because the legal arguments at the Supreme Court have very broad implications for what people call Federal Indian law.
Rebecca Nagle: which is basically the chunk of the US. Code that deals with tribes and tribal citizens.
Salima Hamirani: That’s journalist Rebecca Nagle.
Rebecca Nagle: And within that chunk of the US code, there’s laws literally going back to the founding of the Republic that treat tribes and tribal citizens differently than other people in the United States. And that difference goes back to the treaty relationship that we have between our tribes and the federal government. So just like certain laws apply to me because I’m a citizen of the United States, or because I live in Oklahoma, or even because I live in, you know, Cherokee County, Oklahoma certain laws apply to me because I’m a citizen of Cherokee Nation.
And so the fear is, is if the Supreme Court, in this case rules that ICWA can’t treat tribes and tribal citizens differently, well then what about healthcare? What about gaming? And so this case could be kind of like a set of dominoes where if they can topple the first domino, if they can topple ICWA, everything else will go down with it.
Salima Hamirani: In the Supreme Court case, you can hear a lot of arguing back and forth about the parts of ICWA that treat indigenous people as political entities versus racial groups.
Supreme Court Hearing on ICWA: So, so to get to the heart of my concern about this, uh, you would agree, I think, but tell me if you disagree, that Congress couldn’t give a preference for white families, for white children, for black families, for black children, for Latino families, for Latino children, for Asian families for Asian children, yes. Do you agree with that?
Yes. Okay. That, that, that’s purely, uh, based on race. But this is, …
And, and this is different and cause, and I’ll let you explain, be
Because it has to do with Indian tribes,…
Including the third preference, which does not require be of the same tribe.
But it, but it, it is a tribe. It is a tribe with a political relationship to, uh, to the United States
Salima Hamirani: And I mean, for a case outstanding, the majority of the argument was about this single point. Is this a racial or a political law?
Rebecca Nagle: You know if we’re just a racial group that can be treated differently, what racial group has it own land base, its own environmental regulations, its own elections, its own police force, its own courts etc etc etc…
Salima Hamirani: But since ICWA was introduced, it’s never been challenged on whether or not it counts as racial discrimination.
Salima from interview: Who’s behind the ICWA litigation, who’s funding it, because the law existed for a long time, sort of without controversy, so why start attacking it now?
Rebecca Nagle: Yeah, that’s really, really important to note because you know, this case did not get to the Supreme Court by organically arising out of a custody case. And so the plaintiffs are represented by a law firm called Gibson Dunn. Um, It’s a big corporate law firm. It also represents like Walmart and Chevron. And Gibson Dunn is representing the plaintiffs for free. And the other folks who are involved, besides Gibson Dunn, you have the Attorney General of Texas. And then you also have a small group of right-wing organizations. And then a handful of private adoption attorneys and also a professional association representing private adoption attorneys. So that’s kind of the opposition to ICWA.
And what we found in terms of why these folks got involved in this law, you know, is kind of a, it’s a big question. You know, ICWA existed for 30 years without being the target of litigation like this, and then all of a sudden in the past decade it’s been challenged almost as many times as the Affordable Care Act and there’s a coordinated campaign to strike it down.
What we found in our reporting is that that big corporate law firm, and actually some other corporate lawyers who’ve taken on these cases pro bono, are making the exact, exact same arguments in cases going after tribal gaming and tribal casinos that they’re making in this ICWA case. And so, they’re literally just swapping out kids for casinos. And so that thinking is that, you know, okay, if they can win ICWA based on this new constitutional principle that you can’t treat tribes and tribal citizens differently, that’s racial discrimination. Then they can follow up with other lawsuits that would attack other areas of laws that treat tribes differently like healthcare gaming….
Salima Hamirani: So Rebecca Nagle is arguing that corporate interests and the firms that represent them want to attack ICWA because tribal sovereignty is keeping them from making money. So if they can remove the special protections of First Nations over issues like gaming, healthcare, and land, then they can open up a market that they’ve otherwise been unable to access.
Rebecca Nagle: I think the other thing to note about Gibson Dunn that’s doing all this anti ICWA work for free is that they also represent another industry that comes up against tribes and tribal sovereignty a lot, and that’s oil and gas. And they specifically represented the, the parent company behind the Dakota Access Pipeline and the fight over the pipeline at Standing Rock.
Salima Hamirani: but there’s another interest behind the ICWA fight.
Rebecca Nagle: The other thing that we found was we kind of investigated like, well, where these, like this little small group of right-wing organizations, like who is funding them? Like who is paying for them? And so what we found is that the Goldwater Institute got seed money from this right wing family foundation called the Bradley Foundation. That pot of funding wasn’t actually about like ICWA or tribes. It was about building what the Bradley Foundation called state conservative infrastructure
Salima Hamirani: So other than arguing extensively about whether ICWA is a racial or political law as it applies to native children, the lawyers on the anti ICWA side also spends a lot of time talking about state rights
Their basic argument is that the federal ICWA law requires state agencies to go out and find the relatives of indigenous children and spend money settling equal cases, and they believe that that impinges on state rights. That’s an argument that seems to surprise. Even the Supreme Court judges
Supreme Court Hearing on ICWA: Is there some irony in your position that you, you, you’re here to vindicate state’s rights? We have 23 states who’ve lined up on the other side, and we’ve never had a state court and near, as I can tell, in the 40 some years since ICWA was adopted, complaining about this arrangement.
Um, I don’t understand that to be correct, your Honor. I think there are state courts that have recognized, uh, that IWA has, uh, far exceeds Congress’ as any,…
Have state courts held that this is unconstitutional?
Uh, there’s the ca the cases that held that it, uh, under what was known as the existing Indian Family Doctrine, that said that it would be unconstitutional as applied to a child who had no connection to a tribe.
Right. Fair. But I’m not aware of anybody holding ICWA facially unconstitutional in the manner that you’re asking us to do.
Uh, no. I, I, I would concede that no state court has, has gone anywhere, done that.
Yeah. Okay. Thank
Rebecca Nagle: And I think the reason that ICWA fit into that is because it ticks off a couple boxes that I think are part of conservative ideologies. And then I think we’re seeing it now actually really in this session at the Supreme Court with some of the anti-affirmative action litigation that’s going on. There’s this idea among many conservatives that any legislation that tries to address systemic racism and correct it shouldn’t exist. And you know, even like things that we would think of being untouchable, like civil rights legislation, like fits into that category.
Salima Hamirani: And in that kind of worldview, a law like ICWA, which is attempting to redress centuries of racism against indigenous people by creating special protections for their children is a perfect target for litigation.
Salima from interview: And the fact that it has succeeded, that ICWA litigation has succeeded this time around. What do you think that says about the political makeup of the Supreme Court or, or the country where we are politically at this moment?
Rebecca Nagle: I mean, there’s a lot of high stakes litigation at the Supreme Court, thus term. And you know, the Brackeen case hasn’t yet become one of the blockbuster cases that everybody is following. But it absolutely should be because it’s a test for the Supreme Court. You know, it’s a test about, you know, our whole conversation about standing and whether or not the court is gonna, you know, follow the rules of civil procedure.
It’s a test of how wedded the court is to precedent. I mean, literally centuries of precedent going all the way back to the founding of the Republic and also the truth, you know, and just the facts on the ground. Or if all of that is irrelevant and we are really just at a stage where it’s about politics.
And so, we’ll, you know, we’ll see if the Supreme Court makes a ruling based on the law or if they make a ruling based on politics and conservative ideology.
Supreme Court Hearing on ICWA: This is a very, very difficult area of the law as the last two or three hours have shown . And, and to decide it on the basis of hypotheticals that never arise in the real world, and yet take away a statute that has made such a meaningful difference for so many children, it, it seems to me just like not the way this court should be deciding questions, deciding a facial challenge to a statute in a situation where there is no standing, seems to me like a very poor way to resolve major challenges to critical legislation
Salima Hamirani: That was Rebecca Nagle, a reporter from the Nation who’s been covering legal attempts to take down the Indian Child Welfare Act. We’ll be posting updates on the Indian Child Welfare Act whenever the Supreme Court makes his final decision at some point this year. And as always, you can find out a lot more information on our website about today’s show, thank you to Rebecca, Nigel, and the Nation. I’m your host, Salima Hamirani, and that does it for today’s making contact.