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In 'This Land,' A Custody Trial Over Native Children Heads To The Supreme Court

Parts of a federal law giving Native American families preference in the adoption of Native American children were effectively struck down Tuesday, April 6, 2021 by a sharply divided federal appeals court, a defeat for tribal leaders who said the 1978 law was important to protecting their families and culture. (AP Photo/Kevin McGill)
Parts of a federal law giving Native American families preference in the adoption of Native American children were effectively struck down Tuesday, April 6, 2021 by a sharply divided federal appeals court, a defeat for tribal leaders who said the 1978 law was important to protecting their families and culture. (AP Photo/Kevin McGill)

A custody trial in Texas involving a Native American child and white foster parents caught journalist Rebecca Nagle’s eye.

But every time she pulled at a thread, the story got bigger … then much bigger and more important.

“It was months of feeling like my head was exploding,” she says. “Every time I thought that we had gotten to the bottom of it, the bottom just got lower.”

Today, On Point: We hear what Rebecca Nagle uncovered. It’s a custody trial, now headed to the Supreme Court, that’s just the visible tip of a nationwide effort to take land and resources away from Native tribes.


Rebecca Nagle, Cherokee writer and activist. Host of the podcast This Land. (@rebeccanagle)

Interview Highlights

When you started looking at this custody case, did you have any inkling that it would be the doorway into a lawsuit that could change Indian country forever?

Rebecca Nagle: “I had suspicions. This law, the Indian Child Welfare Act, in the past decade has been challenged more times than the Affordable Care Act. And it’s a really odd group of people attacking it. It’s private adoption attorneys, corporate lawyers and this universe of right-wing money and operatives. And I wanted to know why. And so we put a team together, and we spent the past year investigating. We talked to over 100 people. We submitted 60 FOIA requests. We went through thousands and thousands of pages of court documents. And I thought I was prepared for what we would [find]. But it turns out that I wasn’t.”

On a history of the Indian Child Welfare Act

Rebecca Nagle: “One important historical context is that generations of Native children have been systematically removed from their families and tribes by the U.S. government. And so, you know, it started in the late 1800’s and early 1900’s with government run boarding schools, where children were beaten for speaking their languages. Where many children died.

“During that era, an estimated third of Native children were forced to go to those schools. And then in the ’50s and ’60s, the government had a new program that purposely adopted Native children out and placed them with white families. And in the late ’60s, a national survey found that 25% to 35% of all Native children had been removed from their family and tribes.

“And so in 1978, Congress passed the Indian Child Welfare Act, also often called ICWA. And what it does is it’s basically a set of protections for Native parents, for tribes, and especially for Native children. To make sure that Native kids who are either in the foster care system or in an adoption situation stay with family, stay with their tribe and stay connected to their community.

“And what’s really important about ICWA is that what it lays out is actually what’s best for all foster children. Research has shown that all foster children do better when they stay with family, and when they stay in their community.”

The Indian Child Welfare Act was designed to protect the welfare of Native children. Was it effective in doing that?

Rebecca Nagle: “We don’t have actually good national data. That’s one of the things that needs to happen with ICWA, is that there needs to be better tracking and compliance. But the Casey Family Programs have collected pockets of data from ICWA courts. So there’s actually some family courts that are set up that just do ICWA cases. And where there’s good compliance with ICWA, we see good outcomes.

“So kids are more likely to be raised by relatives. And actually less likely to age out of foster care. Which is when children turn 18, and haven’t been adopted by anyone. And so we do see some really good outcomes with ICWA. A few things that the law does is that it actually gives tribes a say in what happens in family court, when those court cases involve their children. It also lets tribes move the cases to tribal court. And it also sets out placement preferences of where Native kids should go.

“And so the first preference is family members. The second preference is other members or other citizens of their tribe, and the last preference is other Native homes. And what’s interesting is ICWA was kind of ahead of its time. It was passed in the late ’70s. And what we’ve seen in the decades since then is that other child welfare policy has caught up to it. And so it’s not only ICWA that says that kids should go with family members, but child welfare policies now across the board.”

Will the ICWA got struck down?

Rebecca Nagle: “Let’s look at what’s already happened with the case. So a U.S. federal district judge did exactly that. He … a radical conservative judge in Texas. And he took the Indian Child Welfare Act and he checked it out the window and said that it was racial discrimination. And so if the Supreme Court ruled the way he did, it would have that domino effect. It then went to an appeals court, the 5th Circuit Court of Appeals, a half step below the Supreme Court. And it was a 16 judge panel. And they were evenly split.

“They strike down a few narrow parts of the law, but that 16 judge panel was evenly split on whether basically the foundation of the legal status of tribes is constitutional. And so that’s how close we are to a scary result in this case. And I think that we’ll have to see what the Supreme Court will do. But it’s terrifying to think that the Supreme Court is going to take it up and all federal Indian law is on the table.”

You’re a member of Cherokee Nation. How did reporting this story impact you?

Rebecca Nagle: “I’ve reported on a lot of hard things. Violence against Native women, missing and murdered indigenous women. What’s happening with coronavirus in our communities. And I would say that this is the most demoralizing thing that I’ve ever looked into — what happened to these children. But I think also really what got me was talking to the family members who didn’t  win custody, and the loss that those families are living with. It’s a heartbreaking case. And I would also say that the media has really, for the most part, gotten this story wrong. Because they didn’t do the investigating that we did. And so there are facts in major papers that are just inaccurate. And so I think that people really need to start asking the hard questions about this case that we asked.”

This article was originally published on WBUR.org.

Copyright 2021 NPR. To see more, visit https://www.npr.org.