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U.S. Supreme Court building, credit: wikimedia commons
In this episode, we revisit two stories concerning indigenous rights we’ve covered in the past. In the first half, Rebecca Nagle joins us to discuss the Supreme Court decision to uphold the Indian Child Welfare Act and why the legitimacy of the law is so important to tribal sovereignty. We also talk about the right’s legal strategy in the last few decades and what that means for decisions at the Supreme Court.
In the second half we hear from the Chairman of the Amah Mutsun tribal band, Valentin Lopez, about the most recent developments in their fight to protect the sacred site Juristac. The site was slated to be developed into a mine, but the tribe has continued to gain support from environmental organizations and activists. We talk about next steps and how you can get involved.
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Featuring
Credits Making Contact Team:
TRANSCRIPT
Salima Hamirani: I’m Salimah Hamirani, and on today’s Making Contact,
Rebecca Nagle: For a very, very, very long time, removing Native children has been a tool of colonization in the United States.
Salima Hamirani: We talk to Rebecca Nagel about the Supreme Court decision on the Indian Child Welfare Act and what it means for tribal sovereignty. And,
Valentin Lopez: One thing that was told to us was that the only way that we would stop it is with overwhelming public support and that’s why we have a huge outreach effort tied to Eurostat
Salima Hamirani: We hear from Valentin Lopez, a tribal leader for the Amah Mutsun, about their ongoing campaign to prevent the construction of a gravel mine on their ancestral lands in Santa Cruz. All that and more, stay tuned.
Salima Hamirani: Welcome to Making Contact. Today, we’re updating two issues that we’ve covered recently, and to start, we sat down with Rebecca Nagel to talk about the Supreme Court decision on the Indian Child Welfare Act, or ICWA.
news clips: We begin today’s show with a major victory at the Supreme Court in a case that could have [00:01:00] gutted Native American sovereignty.
news clips: In a 7 2 decision on Thursday, the Supreme Court upheld a law that protects Native American families looking to foster or adopt Native children. The Indian Child Welfare Act
news clips: In a 7 2 decision by Justice Amy Coney Barrett, the court upheld the Indian Child Welfare Act of 1978, a landmark law that gives Native American families priority in the adoption of Native children.
Salima Hamirani: and for a little background for our listeners, ICWA was passed in 1978 as a way to keep Native children within their families. So, for example, if a Native child enters the adoption system or the welfare system, the law requires a social worker’s contact and place the child within their extended family or tribal networks first.
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 percent, so about a third, of all Native children had been removed from their family.
Salima Hamirani: The law was challenged by white families saying that they were being discriminated against because they were not given equal consideration in the adoption of native children.
Salima Hamirani: And that case made it all the way to the Supreme Court.
Supreme Court Clip: We will hear argument this morning in case 21 376, Holland v. Brackeen and the consolidated cases.
Salima Hamirani: But the Supreme Court upheld ICWA in June of 2023. And to talk to us about the meaning of the Supreme Court decision, here’s Rebecca Nagle, journalist and host of the podcast This Land.
Salima Hamirani: Rebecca, to start, can you explain the Supreme Court’s ruling on the Indian Child Welfare Act? What was their final decision?
Rebecca Nagle: Yeah, so… Just for a little bit of background, , some individual plaintiffs in the state of Texas were trying to get the Supreme Court to strike down the Indian Child Welfare Act or ICWA for short, entirely. So they were trying to get the court to say the law is unconstitutional and it should go away.
And they had a bunch of different reasons why they thought the Supreme Court should strike ICWA down, and they lost on every ground. On some of the issues, the Supreme Court just straight up disagreed with them, and they lost on what’s called the merits. And on other issues, they lost on standing, which means they didn’t have the legal right to bring the lawsuit in the first place.
So one of the first big arguments that the plaintiffs had, was that ICWA violates the equal protection clause of the 14th amendment and is racial discrimination. And so the lawsuit was brought by nonnative foster parents who had fostered native kids and wanted to adopt them.
What is ironic about the lawsuit is that for the most part, those people actually won custody, but they sued the federal government and federal officials saying that ICWA violated their unconstitutional rights because it wouldn’t let them adopt. Native kids just because they weren’t Native and that that was racial discrimination. And what they did is instead of, you know, taking an adoption case where in state court they lost custody and then appealing that case all the way up to the Supreme Court, , They just filed a preemptive federal lawsuit where they’re suing federal officials saying that they don’t like ICWA, and basically the Supreme Court told them that you can’t do that. You know, you kind of can’t, , have an abstract political dispute that you ask the courts to settle. You have to have a real live controversy, , which the plaintiffs didn’t have in this case.
And then there’s sort of also some sort of like in the weeds technical stuff of sort of the federal officials that they’re suing. Aren’t the ones who are carrying out ICWA and they started the case in federal court, which don’t have jurisdiction over state courts and stuff like that. But basically the long and short of that, is the Supreme Court said, you know, they don’t have the legal right to bring the case, and why that’s important is because courts are supposed to settle real live, controversies and are not the theater or the venue for abstract political debates
Salima Hamirani: Were you surprised by this ruling?
Rebecca Nagle: Oh, yeah. I was not expecting a victory. I mean, I think, you know, cases that impact tribes and tribal sovereignty, going to the Supreme Court is always a pretty precarious situation. You know, the Supreme Court. has just been a place where there have been some very large setbacks for tribes in the past 50 years. I think this court on other issues has shown that it’s not afraid to overturn what a lot of people considered subtle precedent or kind of go out on a limb. And so, even though a lot of the arguments that the plaintiffs were making were pretty radical in terms of both Supreme Court precedent and congressional laws, I think you could even say it’s radical in terms of, you know, the text of the United States constitution.
I think there was widespread concern, especially among Native leaders that you know, the Supreme Court would accept the invitation and would radically not only strike down this one law, , that impacts. of Native families, but radically sort of reset what the legal landscape of tribal sovereignty in the United States looks like.
Salima Hamirani: You know, Rebecca, I was reading through some of the opinions from the Supreme Court, and I was surprised to read that even some of the really conservative judges talked a lot about the history of child removal in the U. S. and why ICWA was important. Can you talk a little bit about the judges opinions?
Rebecca Nagle: Yeah, so, you know, the, the opinion itself, the majority opinion written by Justice Amy Coney Barrett was pretty short. It was like 34 pages. But then there’s about another 100 pages of other justices adding their own two cents, so to speak. And one of those justices is justice Gorsuch and he wrote a concurring opinion.
And so that happens basically when a justice like agrees with the majority, but they want to add sort of their own take. So justice Gorsuch, his concurring opinion gives a very long and detailed history of, , the removal of native children. You know, really since the beginning of the country and, , you know, I think the reason that that is relevant is that, you know, for a very, very, very long time, removing Native children has been a tool of colonization in the United States. , and there’s a reason that the removal of the children of a racial or ethnic group is an internationally recognized form of genocide by the UN, you know, because without children, you know, a nation and a people can’t have a future.
You know, I think what Gorsuch did in that opinion that was important is adding to the historical record. . Not only why ICWA is an important law, but why it’s not only absurd, but a little cruel for the United States to have, you know, intervened in the lives of indigenous children, indigenous families for all these centuries, for people to come along and now say, Oh, well, like now, now that there’s a law that actually protects native children, Congress doesn’t have this authority. And so I think that that history lesson was really important.
Salima Hamirani: And what would have happened if ICWA had been struck down? Because this wasn’t just a case about white couples being able to adopt Native children.
Rebecca Nagle: Yeah, well, what was at stake in this case? I mean, it is… not possible to overstate, and so not only was it important for ICWA to stay in place so that, our tribes and our families don’t lose our children.
But those arguments that they were making around equal protection and, , congressional authority and states’ rights have really, really broad implications, for a whole host of laws that literally go back to the 1790s, , impacting tribes and tribal sovereignty, so if ICWA is racial discrimination because it treats nonnative people differently than it does native people, well what about the clinic where I get my health care? Like, why can’t it treat me and other tribal citizens but not nonnatives, you know? If you know, Native people are just a racial group and we’re not a political group. And those differences don’t come from treaty rights. Well, then what racial group in the United States has its own government, its own elections, its own police forces, its own land base, its own environmental regulations, and water rights?
And if Congress doesn’t have the authority. To pass laws protecting native children. Well, does Congress have the authority to pass the laws that it’s passed protecting, you know, the graves of our ancestors or our ability to regulate pollution on our land. And so I think that the fear with this case was that it was going to be almost kind of like the first domino in a row. And if that they could topple ICWA, it would sort of start the process of all of those other laws falling after it. And so, thankfully it didn’t happen.
Salima Hamirani: But what if it’s not a child welfare case the next time? Because ICWA wasn’t really about kids, it was about tribal sovereignty. Could there be other cases that threaten…
Rebecca Nagle: Yeah, that’s a very good question. So the law firm that worked for the Bracken’s pro bono, and their lawyer, Matthew McGill, filed another case. It’s actually already been dismissed, but making basically the same arguments around congressional authority and state’s rights and equal protection. But in that case, the issue wasn’t about children. It was about casinos. And so, you know, having been sort of shot down in the ICWA context, it is possible that folks might try different avenues. I think part of the strategy that I think why people chose the ICWA is because it’s the story of a child caught up in a custody dispute, of a child in foster care. I mean, all of these stories and everything that these little kids who were at the center of the case went through is heartbreaking. And I think that those stories kind of really distracted from the broader threat to tribal sovereignty.
And it was a way for people to bring these cases almost like a Trojan horse that, you know, when you’re challenging the legality of tribal gaming so that non tribal gaming companies can make more money, it’s a little bit more naked, what your motives are.
You know, throughout U.S. history, there have always been efforts to undermine the existence of tribes, the land base that tribes have. And so, you know, obviously this victory doesn’t mean that any of that is going to go away but I do think that this case was one of the biggest threats to tribal sovereignty that we’ve seen in a while. And so I think there is a, a moment of relief at least, , in it not being successful.
Salima Hamirani: Rebecca, to end, I’m curious to know your thoughts about where this fight for ICWA fits into the broader strategy the right has developed in the courts that has brought us to this moment in the U. S.
Rebecca Nagle: Yeah. Yeah. I mean, it’s a strategy that people have been building towards for decades. I mean, one of the document troves that we went through was the leak of documents from this family foundation called the Bradley Foundation. And so they gave one of the conservative think tanks who really helped get the attack on ICWA off the ground the seed money to do that.
And when you look at what the Bradley Foundation was funding at that time, it was part of this much bigger conservative strategy where conservatives were sort of looking at…. You know, I think people don’t want to say this out loud, but they’re like, they’re not the majority anymore in the United States, you know and so if you’re not going to win presidential elections, or it’s less likely that you’re going to win presidential elections, and it’s less likely that you’re going to have control over Congress, how do you still maintain the power?
And the strategy that people came up with, which Bradley Foundation was a part of, was about controlling the courts and controlling state legislatures. And so that’s like, this is the moment that we’re living in now where, you can have a policy like cancelling student debt that is popular. That somebody campaigned on, got elected, enacted, and then struck down by the Supreme Court. I think one thing where I think there is a lot of alignment with tribal interests and other political issues right now when it comes to the Supreme Court is basically the power grab that is happening right now at the Supreme Court and this bigger question of what is the role of the Supreme Court, you know, if the Supreme Court had struck ICWA down, I think there would be a big argument to make.
And I, I think that they did this in Kashuv. They did it in Alfa. I mean, they’ve done it in all sorts of decisions where instead of deferring to Congress and deferring to other branches of the government, the Supreme Court comes in and says, we’re going to make our own rules. You know, we’re going to, we’re going to take on more power and amass more power as an institution in the balance of American democracy.
And that trend in the Supreme Court, which doesn’t happen in every case, but has happened in many cases, has been really harmful to tribal sovereignty. And I think, there is a broader and growing understanding of why that is a concern, I think, among the broader American public, I think we’re really starting to have, in this post row world, more conversations about it.
Salima Hamirani: Absolutely. And hopefully we’ll also be having more conversations about the Supreme Court here at Making Contact in the next year. So thank you for joining us today, Rebecca.
Rebecca Nagle: Yeah. Thank you so much for having me
Salima Hamirani: That was Rebecca Nagel, journalist and host of the podcast, This Land, which you can find a link to on our website. We’ll be right back with an update from the fight for Juristac, where the Amah Mutsen tribal band continues to push to protect their sacred site near the Santa Cruz Mountains.
Salima Hamirani: All that, right after the break.
Salima Break: We’re just jumping in to remind you that you’re listening to Making Contact. If you liked today’s show or want more information please visit us online at radioproject.org. And now, back to today’s show.
Salima Hamirani: Welcome back to Making Contact in part two of today’s show. We are revisiting an organizing struggle we featured back in the early part of 2022. And that story was about the Amah Mutsun tribe who have been trying to stop the development of a mining pit on their ancestral lands, which is also a sacred site. The native name for this site is Juristac, and we wanted to check back in to see how the campaign is going. Here’s Robert Raymond, a producer with the podcast, The Response, and the reporter for the original piece we aired about Juristac, talking to tribal leader Valentin Lopez.
Robert Raymond: so, Chairman Lopez. It is really great to talk to you again
Valentin Lopez: thank you, Robert. It’s very nice talking to you again.
Robert Raymond: Absolutely. And we have spoken to you in the past about some of the ongoing issues that the uh, are facing. And I would love it. If you could maybe introduce yourself for our listeners and also just, yeah, maybe give us a little background and talk a little bit about how you came to the position that you’re in
Valentin Lopez: well, my name is Valentin Lopez. I’m the chairman of the Amah Mutsun Tribal Band. Our tribe is comprised of the descendants of the indigenous peoples that were taken to mission in San Juan Bautista and Santa Cruz along the central coast of California. I was elected chair in 2003. in 2006 the elders came to the tribal council and they said our tribal creation story tells us that we have the responsibility to take care of Mother Earth and all living things and that we have to find a way to get back to it. And that was really a directive from the elders that was really hard to understand. Because our tribe at that time, was very poor. many of our members lived at or below poverty. We could not afford to live in our territory because real estate along the central coast extremely expensive.
But because the elders asked, we had to. find a way to do that, and so we prayed and we asked Creator to help us find a way. And it wasn’t long after that that we got invited by Pinnacles National Park to go on in and meet with them and talk to them about how we could have a role and how to co-manage that park, how we could take care of the basketry grasses that were growing there. There was about 100 acres of native grasslands. And so we started participating in that. And then they had the condor program. And so we started talking to them a lot about the condor. And, other people, such as State Parks, the Bureau of Land Management, and Open Space Districts, Land Trust, etc. They started hearing about our relationship with Pinnacles, and they started contacting us and said they wanted the same thing. , that led us to develop the Amah Mutsun Land Trust in 2012. And so since that time, we’ve been working hard to get back to our lands. And to do a lot of restoration efforts there.
So, that’s kind of, um, the background that lead us to where we are today.
Robert Raymond: Great. Yeah. Thank you so much for that. Just for folks out there who may not have any idea about what’s going on can you maybe just sort of orient us, give us a background on sort of what and where Juristac is, its significance to the Amah Mutsen tribe, and the proposed gravel mine?
Valentin Lopez: Yes, Juristac is a term that our tribe uses. for this 6, 500 acre property that is located at the very southern end of Gilroy, California, it is at the very bottom, southernmost point of the Santa Cruz Mountains. It’s known, in today’s terms as Sergeant Ranch, it got that name in the 1950s when a person by the name of Sergeant acquired that land. Juristac translates to the place of the big head and big head refers to the regalia that we wear during our Big Head Ceremonies. And our Big Head Ceremonies were the most important and most sacred ceremonies that our tribe would hold. People would come from great distances to attend, our Juristac dances.
Now, these dances were held for thousands of years. But, whenever the colonizers came, our people were quickly removed from Juristac and forced to live under slave conditions at Mission San Juan Bautista. If we jump to today, Sergeant Ranch, went into bankruptcy in about 2014. While it was in bankruptcy, I got a call from a company called Distressed Acquisition Corporation of America and it was explained to me that what they do is they buy distressed properties and look for ways to monetize it, make the most money that they can off of, um, out of it and then to sell it as quickly as possible. And so their intent for Juristac was to get a sand and gravel mining permit. And with that permit alone, they would be able to sell Juristac at three or four times what they bought it for. And they were hoping to do that in a matter of years.
When we learned about the efforts to develop that sand and gravel mining quarry there, we objected immediately. One thing that was told to us was that the only way that we would stop it is with Overwhelming public support and that’s why we have a huge outreach effort tied to Eurostat what we did on our end is we started making a lot of, connections and, and collaborations. Mostly with people in the conservation area. And explain to them about Juristac, what it means to us from a sacred standpoint, but also talked about the cultural values and the cultural importance of Juristac. There’s a number of endangered species there, the red legged frog, there’s a salamander there. They have badgers on this property. They have golden eagles on this property. There’s a number of other really significant species that are, that are so important. There’s also a lot of native plants here, and that’s important to us, because those plants represent our foods, our medicines, our basketry, our materials for women’s care, for baby care, housing, clothing, etc.
I believe we have all the conservation organizations in the Greater Bay Area supporting our efforts at Juristac. We are also reaching out to many others at the same time. We contacted all of the spiritual leaders there to explain to them the spiritual importance of Juristac to the Amah Mutsun. And we asked them to recognize that if this was a sacred site of their church and stuff like that, how it would be protected by the laws. But because we’re a Native American tribe, we do not have those protections, all the church organizations in Morgan Hill and Gilroy and others w rote letters and signed letters of support for the position that Amah Mutsen has on this mining permit.
Today, we have a petition to protect Juristac and we have nearly 25, 000 signatures on that petition. Whenever the county released the draft environmental impact report when it goes out, it’s open to the public to provide comment. was open for a 60 day period, and during that 60 day period, the county received over 7, 000 comments. With that information, what the county has to do is write a response to all of the comments. And, uh, the county is in that process now. So, um, we anticipate that the county won’t be done until the very end of this year or early next year. At that point, what they do is they develop a final environmental impact report. And then they will vote to accept the recommendations or to not accept the recommendations. that is our next big effort. For that public hearing. And so that’s where we are now. We’re, we’re still waiting for that final environmental impact report to be published.
Robert Raymond: So the Amah Mutsun are not a federally recognized tribe. And I’m wondering if you can talk about the context surrounding why that’s important to know and what difference that could make in terms of the struggles and challenges that you are facing today.
Valentin Lopez: I’m very glad you asked that question. Thank you. You know, a lot of people know that we are federally unrecognized, and they think that that means because we’re not Indian enough, we’re not true Indians. But, our tribe signed a treaty with the federal government in 1851. That right there was the California Indian Treaties. And many California Indian tribes signed that treaty in 1851. And that right there was to relocate the Indians to 18 different reservations, north to south in the central parts of California. After the treaties were signed, they were then signed by the treaty commissioners and sent to Washington, D. C. to be ratified. California did not want those treaties. They did not want reservations. California had said earlier that they wanted extermination of California Indians. And so they passed a resolution asking the federal government to not ratify the treaties. And there they sent a delegation to Washington, DC asking them to not ratify the treaties.
With that, the president of the United States then ordered that those treaties be sealed for 50 years, and as a result of that, those treaties were never ratified. that’s why we’re not recognized today. they developed a process for being recognized but it’s nearly impossible, nearly impossible criteria to meet. Only one California tribe has successfully gone through that process, and that was in 1984. In nearly 40 years, no other tribe has been recognized. The federal government does not want any more tribes. It may be that someday we’ll be federally recognized, but we cannot live just for that today. You know, we have to fulfill our obligation to Creator to take care of Mother Earth and all living things. And that’s why we work so hard on our land trust.
Robert Raymond: To close out, how can people get involved? If somebody is listening to this, they’re, they want to help, they want to support, they want to show their solidarity. Not only the fight to save your stock, but you mentioned the land trust, like maybe volunteering or getting involved in, in other ways.
Valentin Lopez: Well, we have three websites that provide a lot of information in different areas. First of all, Amahmutsun.org website gives a lot of information on the history of the Amah Mutsun and who we are and our experiences during those three periods of colonization and where we are today. And then we have the Amahmutsunlandtrust.org And that talks about our land trust and our ways of traditional stewardship of the land. For example, the use of fires, the way that we would collect shellfish, the way that we would, take care of native plants and the importance of native plants. The way that we, we stewarded the rivers and and had ceremonies for salmon and, you know, and how we maintained the land as being, Mother Earth as being sacred. And then finally, for Juristac, we have a website very specific to Juristac. It’s at protectjuristac.org. And Juristac is spelled J U R I S T A C. So, if people wanted to learn about Juristac and how to get involved, you can go there.
Salima Hamirani: That, again, was Robert Raymond interviewing Valentin Lopez about the battle over the indigenous sacred site called Juristac, and that actually does it for today’s show. If you’d like to know more information about today’s show, please visit us online at www.radioproject. org. I’m Salima Hamirani. Thanks for listening to Making Contact.
EDITOR’S NOTE
The transcript of this story has been corrected since original publication. The original version incorrectly spelled Valentin Lopez’s name. We apologize for the error.
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