The Supreme Court Case that Could Upend Tribal Sovereignty

CHRISTIANE AMANPOUR, HOST: Now, turning to the U.S. Supreme Court as the Indian Child Welfare Act is at risk of being overturned. It was created to prevent family separation in Native American communities. And this is the first time the constitutionality of the law is being challenged. Mary Kathryn Nagle is Cherokee and an attorney, and she helps the National Indigenous Women’s Resource Center. She joins Hari Sreenivasan to discuss the significance of this case and how it impacts tribal sovereignty.

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HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Mary Kathryn Nagle, thanks so much for joining us. So, you know, just to get our audience up to speed, help us understand how what looks like an adoption case stands to threaten tribal sovereignty. I mean, tell us a little bit about the law that is at the center of this. This has been on the books since 1978, the Indian Child Welfare Act. What is the legal challenge here?

MARY KATHRYN NAGLE, NATIVE RIGHTS ATTORNEY AND CITIZEN OF CHEROKEE NATION: Well, the Indian Child Welfare Act is a law that was passed unanimously in Congress, bipartisan support, right, not a single voter who voted against it just 44 years ago, and the goal of the law is to affirm and recognize the inherent sovereignty of tribal nations to protect their own children. And it sets gold standards. Of course, it doesn’t dictate outcomes in these sorts of custody proceedings or adoption cases, but it simply says that if an Indian child is going to be taken from his or her home, the very first place we should look to place that child should be with his or her family. And if you talk to any child welfare advocate, that is the gold standard for any child. But it’s critically important for Indian children because when Congress passed this law in the 1970s, our children were being removed from our families and our nations at alarmingly high rates. Higher than any other population in the entire United States. In some cases, up to 40 or almost 50 percent. And so, really, it was just another round and continues to be today of attempting to end tribal nations by taking our children from us. And so, the Indian Child Welfare Act affirms the inherent right of our tribes to protect our own citizens and our own children.

SREENIVASAN: So, because it preferences that Native American children be placed with family members or a foster agency that is approved by the tribe, where is the legal challenge here? The parents who are in this lawsuit say that this is racial discrimination.

NAGLE: Right. That is their claim. And when you look at this case in particular, you’ve got three parents, two of those three have fully and legally adopted the Indian children they claim ECOA prohibits them from adopting on the account — on the basis of race. And that last couple, the Cliffords (ph), are trying to take a child away from her grandmother. And their claim is that somehow, they have some constitutional right to raise this child instead of her grandmother. That’s what’s so absurd about the facts of this case. But legally, if you look at the arguments they are making, it is in line with a lot of other cases that have been coming up or trickling up to the Supreme Court, with huge funding, huge resources behind them. And so, what’s really at the heart of this case isn’t whether certain children are going to be placed with certain non-Indian people who really want to purchase them and adopt them and raise them. It’s really, at the end of the day, is the 14th Amendment, can it ever be used, how can it be used, and for what purposes? And they are really trying to rewrite the 14th Amendment, which never applied to Indian people in the first place.

SREENIVASAN: OK. First, I guess, stepping back a second, the idea of what is a Native American, is it a race, as these people say it is? Because I fill out forms all the time for my health care and other documents and I see a check box. Oh, are you this race? Is it a race as we think of it or is it a political designation that has been kind of imposed on groups of people by the United States government?

NAGLE: Yes and no. So, it can be a race, it’s also a political classification when Congress uses it and calls us Indians, which signifies citizens of tribal nations that predate the United States. Now, it’s not a term imposed on us by the United States because we as — I’m a citizen of the Cherokee nation. My ancestors were citizens of the Cherokee nation long before that United States came into existence. The fact the United States came into existence does not change that. And in fact, the constitution itself calls us Indian tribes, and gives Congress the exclusive duty and obligation of effectuating the promises the United States has made to our tribal nations in the hundreds of treaties signed with tribes. But if Congress can’t use the word Indian to identify who is a citizen of those tribal nations, Congress will never be able to fulfill its constitutional duty and obligation to honor the promises made to our nations and our nations’ citizens, in the hundreds of treaties that created the United States today. But that’s exactly what the plaintiffs want in this case. And specifically, the oil and gas industry, that’s funding their efforts.

SREENIVASAN: So, these parents are essentially saying that this is a racial discrimination, because they will never be citizens of a tribal nation, that they will never be Native American, and they are being prohibited on the basis of race from adopting a child that they want to give a better home to.

NAGLE: Yes, it’s pretty outrageous to think that if you are a white couple, that you should have some sort of constitutional right to take a child from her home and from her family or from her grandmother. But that is exactly their argument. And they are really trying to conflate race and the political classification, which, by the way, the Supreme Court has consistently held for hundreds of years that when Congress uses the word Indian to signify citizen of a tribal nation, that it is a political and not a racial classification. But they are playing on the misunderstandings of that and the general public and a lot of other messaging that they have used. When at the end of the day, if a child is racially Native American but not a citizen in a federally recognized tribe, and — you know, and if their parents are not a citizen of that tribal nation, then that child is not an Indian child under the act. The act simply does not apply.

SREENIVASAN: If this — if the Supreme Court decides that this has something to do with race, then what is the effect on the sovereignty of native tribes? I mean, what does that take away or is there a domino effect that you are concerned about?

NAGLE: Yes. So, for instance, in 1978, the U.S. Supreme Court issued a decision saying tribes could no longer exercise criminal jurisdiction over non-Indians who come onto our lands and rape and kill and murder our children. Today, our women and children face the highest rates of violence in the entire United States. And the Department of Justice reports that the majority of those violent crimes are committed by non-Indians. The Supreme Court use this Indian non-Indian classification to take jurisdiction away from us. If that classification becomes unconstitutional, which is what the (INAUDIBLE) attorneys are arguing for, and if Congress cannot use that classification as it always has for hundreds of years since the United States came into existence as a political classification, then all of a sudden, the ability of Congress to restore the tribal criminal jurisdiction that the court took away, that Congress has been restoring in reauthorizations of the Violence Against Women Act becomes jeopardized and is called into question. And that’s the real risk here. Congress every day passes laws calling us Indians, because we are Indians, right? And that’s a political classification, and it recognizes that sovereign relationship between my tribal nation and the hundreds of other tribal nations and United States. And if Congress can’t pass those laws anymore, then we are really — we’re in big, big trouble. But it also opens up, you know, that at this point in time, native nations in United States only control about 2 percent of the lands in the United States. But underneath those lands are an estimated 1.5 trillion dollars’ worth of untapped fossil fuels. There’s a reason that oil and gas companies want to destroy tribal sovereignty and erase the authority of our tribal nations or the ability of Congress to pass laws recognizing the authority of our nations. They’re trying to make that unconstitutional.

SREENIVASAN: So, do you think that this is a pattern that has been repeated in the past? Sort of having a conversation about children where really there is more at stake?

NAGLE: If you look back at the boarding school era, and that time, General Richard Henry Pratt, who was the architect of the horrific boarding schools that killed thousands of Indian children in the late 1800s and early 1900s, he had just lost on the battlefield against many tribal nations. General Custer had been killed by Lakota, Cheyenne warriors. He told Congress, it’s going to be more cost-effective to take their children from them under the guise of civilization and education than fighting them on the battlefield. If we take your children and wipe out their language, their culture and the sovereignty of their nations, that they will no longer have nations to govern. They will no longer have lands to govern. And then, we won’t have to fight these expensive wars in the West. And so, Congress said, yes, and that’s how boarding schools came to be. Now, to us, we were told, this is to help you. You are not civilized. This is to help your children. This is about to the Indian children we are trying to help. We are trying to give them a good home, a better future, access to a good college, right? All of these resources that come with affluent white families. And so, that’s the real repetition of history that is happening right now. And we know what it means to be told that this is in the best interest of our children. We’ve been told that before.

SREENIVASAN: You heard the oral arguments that have been in front of the court. Is there something that you heard? Because oftentimes, the justices, in the phrasing of their questions, give you have an indication as to what it is that they are thinking or what’s the key question that’s important to them before they weigh in on a decision. Anything that you heard concern you?

NAGLE: Several things that I heard concern me. I will say, I was very relieved to hear that several justices understand not only what’s at stake but what the constitution says in very plain language. Calling us Indian tribes, which can’t be unconstitutional if the framers put it in the constitution as the bedrock principle of our democracy. But there were questions that were concerning. Such as, Justice Kavanaugh asking how there can be a federal law that prioritize the placement of Indian children with Indian families of other tribal nations if those tribal nations, at one point in time, had conflicts and used to fight wars against each other? Which, I think is a question that comes out of ignorance. Yes, our tribes fought — had conflicts and fought wars against each other, it’s true. Most of those wars, you will find, postdate the arrival of white Europeans, who tried to pit us against one another and encouraged us and almost forced us to fight each other for survival during genocide. Now, it’s not to say we didn’t have conflicts before the arrival of white Europeans. Certainly, we did. But we had a lot better means to work those conflicts out, and to say that, you know, Congress that has this constitutional duty to protect our children and the sovereignty of our nations can’t make that judgment call, that an Indian child is going to be better off with Indian parents from another tribal nation is really concerning, and I think the thing that Justice Kavanaugh doesn’t understand is that that, yes, our tribes are very different and very unique with cultures, but we have a lot of similarities. And, you know, Indian parents will know the value of — even if they are members of separate tribal nation, taking that child they’ve adopted to ceremony, to learn their language, to meet their extended family in that tribe, to keep that kid connected to who he or she is. And that’s going to prevent that child from suffering further trauma when they become an adult and they to spend years searching for their identity, which is what happens to a lot of our children that are adopted out of our nation. And so, you know, complete lack of understanding of not just with the plain language in the constitution says, but also Congress’s role in understanding Indian affairs as the exclusive branch of the federal government with constitutional authority to govern over Indian affairs.

SREENIVASAN: One of the arguments that the lawyers are making in this case is that the children inside tribal nations are not having the same access to opportunity, to services, and so forth that a white family in Texas might be able to give that child. And that somewhere, by design, there is an inequity here and why shouldn’t parents from outside the tribe be able to give these children equal opportunities?

NAGLE: I mean, this is really — this is the underpinnings of this case. I think a lot of nonnatives look at this and say, well, I’ve read a lot about the poverty on reservations and I want my children to have a chance to be raised in affluent homes. But this undermines everything we stand for in terms of our democracy as a nation. If that’s really the standard, then we have millions of children living in lower class homes right now that apparently can just be scooped up and taken from their loving parents where they’re not — I’m not talking about homes where there is abuse or drug abuse or alcohol abuse. Obviously, children need to be taken out of those homes. And ECOA requires that as well, right? ECOA doesn’t preclude that. But we are talking about this age-old narrative of, well, don’t we, as rich, affluent people, just know what’s better for poor children living in a lower socioeconomic class? And I think that narrative does more harm than good, and I think there’s a lot more to unpack there. But it is exactly the stereotypical thought that, unfortunately, a lot of well to do Americans have. And they think, they have this belief, that they are here to save poor children. And it’s inherently problematic.

SREENIVASAN: You’re a member the Cherokee nation, you have represented families in custody matters for a long time. Why does this case matter so much? If the decision comes down that this law is unconstitutional, how will it change what you do?

NAGLE: Well, if you think about it, when my grandmother was born, she was not a citizen of United States. She was born in 1912. She didn’t become a citizen until 1924, when Congress passed the Indian Citizenship Act. If plaintiffs win in this case and Indian becomes an unconstitutional race based on classification, the very law that gives us U.S. citizenship will become unconstitutional. And that’s because the 14th Amendment had no application to Indians when it was passed. It was debated, and the senators who drafted and passed that amendment and said, no, Indians are — that’s a political classification, it’s not a racial classification, they are citizens of separate tribal nations. When a citizen of the Omaha Tribe tried to vote in Nebraska in the late 1800s, his case went all the way to the Supreme Court. And the Supreme Court said no, you’re a citizen of a separate nation. Indian is a political classification. The 14th Amendment doesn’t apply to you. You can’t vote. We had to fight in Congress for that right to vote, and we got that right in 1924. In a law that labels us as Indians. Everything we had we have fought for in Congress in laws that label us is Indians because that means you are a citizen of a tribal nation that predates the United States. If Congress can’t use the word Indian anymore, the vast majority of the laws that protect our nations, our children, our lands, our sovereignty, they are all at risk and they are all up for grabs. So, this case is everything for Native Americans/Indians, Native Americans, people who have native ancestry. But Indians, people who are politically citizens of tribal nations that predates United States today.

SREENIVASAN: Mary Kathryn Nagle, thanks so much for your time.

NAGLE: Thanks much for having me.