Editor's Note: Allison Herrera did some reporting for the This Land podcast.
Before you dive into the second season of Rebecca Nagle's This Land podcast, it's probably a good idea to learn a little bit of history.
The opening scene of the first episode of the podcast describes Nagle's trip to one of the most infamous boarding schools in the country: The United States Indian Industrial School, located in Carlisle, Pennsylvania. The school, commonly known as Carlisle, was the creation of Colonel Henry Pratt whose infamous and terrible phrase "Kill the Indian, Save the Man" defined what Carlisle was: a place to erase Native identity.
You've probably heard about the hundreds of graves that were discovered at the site of Canadian boarding schools. But, the U.S. had just as big of a system. The government and churches operated places where Native children were forced to go. At these "schools," including some in Oklahoma, children would be separated from their families, culture and language.
"So, they're really a tool of genocide with the idea of once you did that to enough Native children, there wouldn't be Native people anymore," said Nagle, talking about the philosophy behind the boarding school system.
For decades starting in the 1870s, thousands of Indigenous children were taken from their homes. It continued even after boarding schools closed, through a program called the Indian Adoption Project.
But, in 1978, the Indian Child Welfare Act, also known as ICWA, was passed. The goal of the new law was to keep Native children from being separated from their homes and communities. It's often referred to as the "gold standard" of adoption policies.
"You actually see a lot of other child welfare policies start to look more and more like ICWA," said Nagle. "There's a ton of research that children who are in foster care do much better when they're placed with relatives."
The point that Nagle is making in this podcast is that custody cases involving Native children are now being used to attack Indigenous rights and advance other agendas that have nothing to do with children.
The podcast starts with a Texas case. Four years ago, Jennifer and Chad Brackeen, a white couple living in the suburbs of Fort Worth, Texas, wanted to adopt a child who is Cherokee and Navajo.
"They fought for custody of the child in state court, and then they simultaneously filed this federal lawsuit," explained Nagle. That case is called Brackeen v. Haaland.
The Brackeens had been fostering the child for about a year, until the Navajo Nation identified a Navajo home for him. Because ICWA prioritizes Native children being adopted by Native families, that’s where the boy was headed.
But the Brackeens fought the adoption in state court, claiming it violated their civil rights. They brought in high-powered attorneys who represent corporate clients and won the case. At the same time, they are suing to strike down ICWA in federal court.
"I think what we found was a system...that still has a lot of bias against Native family members and against tribes," said Nagle.
Nagle argues that what's at stake isn't just the legality of the Indian Child Welfare Act. She says that some of the players fighting to undo the law, including the Goldwater Institute, have an ulterior motive to undo the legal status of tribes.
"I think a lot of people see it as this knife in the Achilles heel of tribal sovereignty," said Nagle of the Brackeen case. "If they can win this case, it's like pulling a thread on a sweater. It could unravel the legal structure defending the rights of tribes."
In April of this year, the Fifth Circuit Court of Appeals published its decision inBrackeen v. Haaland. The Protect ICWA Campaign, which is part of the National Indian Child Welfare Association, applauded part of the decision which recognized that ICWA is within Congress's authority. However, they say there is a lack of understanding about the relationship between tribes and the United States.
Season 2 of This Land about the Indian Child Welfare Act is a production of Crooked Media. New episodes drop every Monday and can be found wherever you get your podcasts.
