At Liberty Podcast: Is SCOTUS Coming for Indigenous Children?

At the center of Brackeen v. Haaland is the future of Indigenous rights and tribal sovereignty.

On November 9th, the Supreme Court will hear oral arguments in the case of Brackeen v. Haaland.

At the center of the case are the future of Indigenous rights and tribal sovereignty.

The case involves the Indian Child Welfare Act, otherwise known as ICWA, an act that was passed in the 1970s to protect native children from removal from their community and culture and to keep families together.

Texas, together with individual plaintiffs, allege that ICWA is unconstitutional because they say it violates the Equal Protection Clause and discriminates against non-native families looking to adopt native children. But honoring tribal sovereignty isn’t about discrimination or race. That’s a fundamental misunderstanding of Indigenous rights.

To learn more about the case, the threat to Indigenous rights and the reasons that ICWA was enacted in the first place, we spoke with Jamie Nelson, a Choinumni Yokuts man and a survivor of pre-ICWA separation abuse, and Stephanie Amiotte, Legal Director for the ACLU of South Dakota, North Dakota, and Wyoming.

Catch the episode





[00:00:01] From the ACLU. This is at Liberty. I’m Kendall Ciesemier, your host.

On November 9th, the Supreme Court will hear oral arguments in the case of Brackeen versus Haaland. At the center of the case are the future of Indigenous rights and tribal sovereignty. The case involves the Indian Child Welfare Act, otherwise known as ICWA for short, an act that was passed in the seventies to protect native children from removal from their community and culture and to keep families together. Texas, together with individual plaintiffs, allege that ICWA is unconstitutional because they say it violates the equal protection clause and discriminates against non-native families looking to adopt native children. But honoring tribal sovereignty isn’t about discrimination or race. That’s a fundamental misunderstanding of Indigenous rights. To learn more about the case, the threat to Indigenous rights and the reasons that Equal was enacted in the first place. I spoke with Jamie Nelson and Stephanie Amiotte. Here are their stories.

JAMIE NELSON [00:01:24] My name is Jamie Nelson. I am a Choinumni Yokuts man from Fresno, California. I am alive. I am here. And I’m ready to tell my story.

KENDALL [00:01:35] Jamie was separated from his family, tribe and culture when he was a small child. He was adopted by a white family, and his siblings were adopted by other non-native families. He calls himself a survivor of pre Indian Child Welfare Act abuses. His removal was deeply traumatic and left him with both terror and confusion.

JAMIE [00:02:00] There’s a lot of muddy water in there. I know that it happened at a very young age in the late seventies. My biological parents, they were, my mom was either addicted to drugs, my dad was a pretty bad dude. But it didn’t mean that they had to take us away from our native family. Our native family wanted to keep us, but the courts indicated, essentially that there’s nothing you can do about it. They specifically told my grandmother that there’s nothing that you can do about it. And from what I understand, from what I was told, it destroyed her that she was not able to keep us in the home. I don’t have very many memories of my of my time in the foster care system or any of the sort of lead up to the adoption. What I do have, I have physical reminders of my introduction into the system. I have a tracheotomy scar on my neck and on my sides from apparently when I was abused, like immediately after being taken from my native family. Like it was like the the abuse started immediately. And those are the things that I sort of carried with me early on into my younger, formidable years as a child, where I just sort of developed a massive confusion right away about life, about everything around me. Every single aspect of life became this confusing, incredibly, painfully hard journey for me to get through. I knew there was something larger afoot that I needed to kind of discover in my adult years.

KENDALL [00:03:24] And when did you come to that point where you were starting to learn things about your background and your family? When did you start putting some of these pieces together for yourself?

JAMIE [00:03:37] So to try to make this somewhat relatable. If you have ever grown up in a home where it was said that you were a Christian family but you didn’t really go to church, it was sort of like that with my native understanding. Like my parents always told me, You’re Mono Indian and because I found out that I was Choinumni Yokuts later in life. But I’m also Mono, which is another tribe located in the central California area. But they would always say, your mono Indian, you’re my little Indian boy, those kinds of things. But like there was no real sort of religious understanding of Native American culture. But the pivotal moment in my life was when I was in school at Fresno City College. Dr. Benard Navarro, the head of the Native American Studies program there. I met with him in his tight, cramped little office, and we talked about my journey. And I specifically mentioned the adoption and losing my sister and my brother to this process. And he slowed me down because I tend to be a little frantic and a little anxious. And he specifically told me that, you know, your journey is not unique. And he said that in the most loving way possible. And he kind of spelled out for me that there are thousands of you that are coming home. And when he said that phrase to me, it really rocked me because that’s what it felt like I was trying to do, was just trying to find my way home. And I had no idea how to get there because I was never raised around native people. I was always terrified of the idea of approaching anyone with anything because I never really fit in any circles.

KENDALL [00:05:11] Has there been any kind of solace in this process?

JAMIE [00:05:15] It’s been an incredibly powerful experience for me, especially as someone who kind of perpetually thinks that I’m an outsider. I just I can’t I can’t find a way to feel comfortable in many spaces. I’m probably still like a little bit of an emotional character when I go to things like a powwow or something where it’s just everyone’s having fun. And then I’ll go, I got to go behind the bleachers for a second and have like a moment because like when you’re detached from it the way that we have been detached from it, you don’t feel part of it, but you yearn for it, you long for it. Like, yeah, it really affects me in that way where it’s just, it’s such it’s such a complex thing.

KENDALL [00:05:56] As you said, your experience is similar to what other native children went through before the Indian Child Welfare Act was enacted. Now we have the Supreme Court case of Brackeen versus Hollande challenging the constitutionality of ICWA. How does it make you feel to see this legislation that has had such an impact on the native community be challenged in this way?

JAMIE [00:06:26] We’re being threatened by a sort of colonial idea right now that Supreme Court is ready to move on this thing. And it’s something that it’s it is not tantamount to. It is exactly cultural genocide. I was not a victim of some, you know, odd set of circumstances where I lost my sister and my brother. It was an intentional act built around Kill the Indian, Save the Man. And that’s a genocidal act. It always has been and always will be. So if that’s happening to our babies, if that’s happening to native people, to Indigenous people, I have to do something because there cannot be another Jamie, there cannot be another child that is taken away because of some archaic, just genocidal, bigoted ideas. It’s unbelievable. It’s unconscionable to me that we still have to go through these hurdles, but we do.

KENDALL [00:07:21] Jamie says the removal from his family left him with a lack of language, culture, sacred tradition and attachment to others. The trauma he endured is just one example of the systematic degradation, removal and violence that has ravaged tribal communities since the colonization of America. Stories like Jamie’s remind us of ICWA’s importance. To learn more about acquire and the protections that keep Native children in their community. I spoke with Stephanie Amiotte, legal director for the ACLU of South Dakota, North Dakota and Wyoming, and an enrolled member of the Oglala Lakota Tribe in Pine Ridge, South Dakota. These protections are at stake in Brackeen versus Haaland.

STEPHANIE AMIOTTE [00:08:14] ICWA, which is what the Indian Child Welfare Act stands for, was passed specifically because of significant disparities throughout the United States for removal of Indigenous children from their families. For example, at the time, ICWA was proposed as legislation to Congress for 25 to 35% of all American Indian children had been placed in adoptive homes, foster homes or institutions, and around 90% of Indigenous children were being raised by non-Indians, and many would never see their biological families ever again. Historically, at the federal level, beginning with the boarding school programs, the government’s position and policy has been to remove Indian children from their families in an attempt to assimilate Indigenous peoples to white dominant culture. You know, they are happening at such a disproportionate rate than non-Indigenous children. It is something that actually threatens the very existence of future tribes and Indigenous peoples as a population.

KENDALL [00:09:28] Even under ICWA, what are the outcomes of removal from Indigenous communities? Has it entirely fixed the issue? Where are we with this policy in place?

STEPHANIE [00:09:42] Well, when it was actually utilized properly by courts and by the states, we do see reduced levels of placements of Indigenous children in non Indigenous families or settings. But if it’s not utilized correctly, then oftentimes we see children continuing to be placed outside of the placement preferences that it requires.

KENDALL [00:10:11] One of the things that Jamie talked extensively about to us was the loss of really understanding his place in the world and his place in his family, his place in his community just perpetually feeling like an outsider. I think that in a lot of like dominant white culture per se and dominant, you know, I think now normative American culture, quote unquote. There is, I think, a real lack of understanding of the kind of depth of cultural tradition and practice that is so important and sacred about an Indigenous community. I wonder like what your reflections are on that coming from your own experience, but also understanding this broader context.

STEPHANIE [00:11:08] What was being described is this phenomenon of being invisible as a human being within the United States culture. And there’s been this concerted effort by the government throughout history, even to the present day, to suppress and oppress the presence of Indigenous voices, Indigenous peoples, Indigenous cultures, Indigenous language. And unfortunately, it all stems from the colonialism that took place when settlers first arrived to the United States. You know, this westward expansion of of settlers really first very violently effected that oppression and genocide of Indigenous communities. And throughout time it has progressed now to a state of discrimination by invisibility or denial.

KENDALL [00:12:13] Mm hmm. Erasure. Right.

STEPHANIE [00:12:14] Right, exactly. So it’s this denial of the presence of the culture. The denial. Of the presence of, you know, the languages and of Indigenous peoples as a whole that continues to contribute to that feeling of being lost. And, you know, I can speak from a personal perspective. I attended a public school and 92% of Indigenous students do attend public schools in the US. And there is a concerted lack of presence of Indigenous culture, languages, history, you know, innovations by Indigenous leaders that would contribute to Indigenous students feeling seen, heard and appreciated. And without that, you know, it’s really difficult to see levels of success by Indigenous students within an academic setting that white counterparts experience.

KENDALL [00:13:11] And I think this relates to a lot of what we talk about when we are working against education, gag orders that are operating across the country. If you are not being reflected in the people around you and the subject matter that you’re learning, the outcomes are are not favorable. And, you know, I think that there is this backlash that’s happening currently to to really threaten the existence and appreciation of the true diversity of our country and also the true history of our country. I want to talk about this case in particular, Brackeen versus Holland stemmed from the Brackeen family, a white upper middle class family in Texas, claiming that ICWA discriminated against them by not allowing them to adopt a native child. They won that case, in a family court, and were able to adopt a boy and then later his sister. But now this case has been consolidated with three others that are questioning the constitutionality of ICWA, and it’s headed to the Supreme Court. Why do you think that this case has progressed as far as it has? You know, why do you think that the Supreme Court would even agree to take up this case? And why do you think the Brackeens’ didn’t just stop after family court?

STEPHANIE [00:14:43] Well, there is definitely, I think, a political agenda that’s also involved in this case. You know, what a lot of people don’t probably realize is that this case was originally filed pro bono by the Gibson Dunn law firm, and they are a law firm that has traditionally fought tribal nations in both casino cases and other cases that for their big oil interests. Gibson Dunn is also the law firm that represents energy transfer, the pipeline company behind the Dakota Access pipeline that Indigenous people have protested in Standing Rock. So there are a lot of these political agendas that also appear to be underlying why this case is moved as far as it has.

KENDALL [00:15:33] And why do you think that the Supreme Court is taking it up now?

STEPHANIE [00:15:36] Well, we would hope it so that the Supreme Court would confirm congressional intent, which is to recognize that, you know, tribes have tribal sovereignty that is expressly recognized under ICWA. And the term Indian child refers to their unique political status under federal law, but not as a racial classification. It was decided by the Supreme Court in the case of Mancari back in the seventies, and that is still good law. So we are hopeful that the Supreme Court will accept this as an opportunity to reaffirm what the congressional intent is behind ICWA hopefully put these allegations to rest once and for all.

KENDALL [00:16:25] And to be clear, the plaintiffs are claiming that equal violates the equal protection clause under the U.S. Constitution and is discriminating against non-Native families that are looking to adopt native children. But as you mentioned, ICWA is not a race based categorization. Upon first understanding that this case is based on white families claiming racial discrimination, you know, I think that that can feel shocking to a lot of people. I mean, that just like flies in the face of everything that we understand about oppression and discrimination and racism. What was your first gut reaction upon understanding that this was a claim from an equal protection lens?

STEPHANIE [00:17:12] Well, my gut reaction is that in order for the Supreme Court to actually buy that argument, which is an absolutely ridiculous argument to make, they will have to throw out provisions within the United States Constitution that recognize tribal sovereignty and recognize their unique political status. They will have to throw out an abundance of other federal legislation that carries that same recognition of tribal political sovereignty. And they’ll have to throw out a lot of their Supreme Court case law and do a complete reversal, which really seems farfetched and inconceivable for the Supreme Court to do that. But the bottom line is that Indian tribes and their unique political status and recognition as such within the United States, which predates the United States existence, has been affirmed and reaffirmed by the Supreme Court decisions for 200 years. It’s been recognized by Congress year after year after year in various forms of federal legislation. It’s been confirmed by the Constitution, local statutes and the treaties themselves that the United States has entered into tribes. So my gut reaction to that is there would be a huge, huge undermining of all this law that’s been established for, you know, decades and decades. But if we look at the Brackeens themselves, you know, they seem to be motivated by their religious beliefs. There are people that get into the foster care system and want to adopt children in order to indoctrinate them into their own religion. We see that repeatedly over and over. And the foster care system was designed purposefully to keep families together. Every state statute regarding the child welfare system was we’ll say that. But instead there has been this movement by some people to use the child welfare system or the family regulation system as a means to further a very different agenda. And it’s not to keep families together, but to tear them apart and indoctrinate them into other ways of living and thinking. It’s truly harmful.

KENDALL [00:19:43] Absolutely. You know, I want to pick up on one of the things that you mentioned in one of the threads of this case that, you know, as we said, these are ridiculous claims of discrimination that there would even be levying an equal protection complaint is almost silly. But I think for a lot of people who might not have the same kind of context or understanding that we do, it would be understandable to consider Indigenous Americans as a racial category as opposed to a political group or a political class. But if you look back in history, Indigenous people, through their respective nations, formed at the very beginning, as you mentioned, a government to government kind of relationship. Can you just break some of this down for us?

STEPHANIE [00:20:35] Well, I sort of compare this to any number of our government. Let’s say theoretically the United States government mission to someplace like Geneva, Switzerland. You know, we have plenty of diplomatic offices and regulatory departments that are represented within other countries. And to break it down to its simplest form, because tribal nations are their own sovereign entities or sovereign nations, you can sort of compare it to that. You know, their governments that are operating within the United States. They have been recognized as such throughout the signing of the treaties. And for decades now, they have been recognized as having their own sovereignty with. In the United States. So it’s certainly not a racial classification, but it would be comparable to the United States having a government office in another country and having that country say, well, you are now a particular race and we have certain laws that we think need to be imposed upon you. You know, that just flies in the face of logic and makes no sense whatsoever.

KENDALL [00:21:52] It sounds like a fundamental misunderstanding and almost misconstruing of history and a complete lack of respect for treaties and sovereignty that had been granted so long and far before even ICWA itself. And so really, the stakes in this case, it’s more than adoption rights at stake here. Reducing Indigenous identity to mere race puts in jeopardy all of the granted privileges and programs provided by the federal government. So can you elaborate and I know you touched on this a little bit before, but how this would affect the entire body of Indian law and tribal sovereignty as we know it. What other privileges could be challenged beyond ICWA?

STEPHANIE [00:22:40] Well, it could extend to a number of other programs that operate exclusively within the Department of the Interior and Bureau of Indian Affairs. You know, there are a number of programs and grants and benefits that are provided to tribal governments by the United States simply because the government has agreed to provide certain protections and benefits and services to tribes. But beyond that, the very existence of the lands that have been set aside for reservations is at stake. Once you start whittling away the promises that were made through the treaties and start whittling away the laws that were enacted for the protection of tribes. It really threatens the very existence of even tribal jurisdiction and the lands in which they have been promised by the government to be able to reside on and operate as their tribal nation.

KENDALL [00:23:53] So really, it sounds like the future of tribal sovereignty, the future of tribal nations in the US that’s at stake, really, like the entire entities themselves.

STEPHANIE [00:24:05] Absolutely. You know, the Indigenous children are the future of of the tribes, you know. They are the future of the culture and of the very existence for tribes in the future. And if they’re removed and assimilated into the white dominant culture, they lose those connections and they lose those ties. And it’s a long road back.

KENDALL [00:24:33] What more can we do for folks who are, you know, not just supporters of the ACLU, but beyond that, want to spread awareness or learn more? Where can you point people who might be hearing of this for the first time and and want to be supportive and attentive to what’s happening here?

STEPHANIE [00:24:56] Well, they can definitely reach out to their local tribal communities. And many tribes have their own Native American adoption programs, and they have a lot of resources for individuals. I mean, obviously, they can go to the ACLU Web sites. We have plenty of information and materials that educate people about why it is so incredibly important. The Native American Rights Fund, they’re also another valuable organization that can provide significant information regarding acquire and the importance of keeping Indigenous families together and keeping Indigenous children connected with their tribes. There are a lot of resources available and I think that as people gain more knowledge regarding Indigenous tribes and the culture, the heritage, the language, the history, they get a sense of why it is so necessary that they continue to exist within the United States. You know, there’s just been a very long history of brutality during colonization, and it’s really unfortunate that more people aren’t educated. So those who want to be educated, there’s no shortage of resources available.

KENDALL [00:26:29] I think there’s also something to be said about pushing for this kind of education access in schools. It seems like so much of what is happening here in this case specifically is due to a fundamental lack of understanding of a history, a culture and a people that just doesn’t have to be true. And so I also just, I guess, challenge people to take this up as their fight and to take it up as something that you push for in your local communities to not just learn this history yourself, but but make systemic change that could actually impact a variety of different people who who are in your community, who need to hear this and understand this and learn this history.

STEPHANIE [00:27:21] You’re 100% right. So 72% of Americans rarely encounter or receive information about Native Americans.

KENDALL [00:27:31] I believe it. I do.

STEPHANIE [00:27:33] Or even have access to information concerning Native Americans. And all of that leads to the lack of visibility of Native American issues, culture and needs within the US. So it is a widespread, persistent problem and it does nothing more than fuel harmful biases generation after generation, because Americans grow up learning a false, distorted narrative about Native Americans. And it’s shameful that our country would do this because it’s it serves nobody’s purpose other than, you know, trying to form this class of society where everybody looks alike or just this idea that you shouldn’t respect other cultures. And that’s not what our country was founded upon.

KENDALL [00:28:31] Our country may have been founded on ideas of equal rights and liberty for all. But we know that we’ve never seen the full embodiment of those values and the lived experience of so many Americans. That’s why Jamie continues to share his experience, because he believes that in order to build a better future, we have to be honest and confront the truth of our past.

JAMIE [00:28:55] There’s just parts of that little boy that never made it out. Like I still see me as a child and all of the destruction that I faced as a very young child and trying to figure that out as I fell into a 20 year depression and the identity issues that came with that and just trying to figure out how to get out of it. And I don’t want any more children to have to go through that. And I don’t know what impact this is going to have on the ultimately on the decision, but it’s just something that’s deeply important to me that I put myself out there. I don’t get to take breaks, you know, like there are no breaks. Like we can pause and I can take a drink of water and I can go in another room and breathe. But those things are still with me. And I think people need to see that with the survivors of of pre-Indian Child Welfare Act laws, frankly, just as Native people, Indigenous people surviving in a colonial country whose entire design is still built around capitalizing on native resources, we are still not fully seen as as full people, as human beings, as people who matter. We know this we from from pipelines on to children being taken. You know, there’s still things that are being threatened. The sacred land that we have that is being threatened by blood quantum, things of that nature, it’s really complex. It’s not just equal. It there’s so many things that are happening to our people. So, like, I don’t get to take a break from that, you know, it’s constant. So I think the viewers need to see that this is something that Native people struggle with daily, and this is a part of that process. If it’s ugly and it’s emotional for people, look at it, look at that pain and recognize it, that we’re human beings and, you know, we can’t have our babies taken from us anymore. It’s that important to us that we will stand here and gut ourselves because we cannot have our babies taken from us.

KENDALL [00:30:57] It’s so important and it’s so powerful to have you here with us, Jamie, and to to learn more about what you’ve experienced and to understand the real damage that this country has caused. We can’t move forward until we do that. So I just want to thank you again for for coming on and for talking with me today.

JAMIE [00:31:21] Absolutely. Thank you for having me.

KENDALL [00:31:27] Thanks so much to Jamie Nelson and Stephanie Amiotte for joining us. And thanks to you for listening. There are many ways to learn more. But I want to tell you about one in particular. The ACLU of Northern California has a new episode of their California’s Gold Chains podcast. This episode connects the dots between the history of forced separation of native children from their communities in California all the way up to the present day Brackeen Supreme Court case. The episode tells the story of Indigenous Californians at the time of California’s founding in 1850, so likely some of Jamie’s ancestors. If we learn our history, we can fight for a better future. The episode drops November 1st. Please listen wherever you get your podcasts. That’s the Gold Chains podcast from the ACLU of Northern California. Okay. Until next week, stay strong.