A treaty or law not honored by the United States? It's more likely than you think! In a rare child custody case, the Supreme Court rules on the Indian Child Welfare Act, and finds that when you squint your eyes and look at the law kinda sideways in the dark, Congress must not have meant for the law to actually keep Native families together. Land back.
A podcast where we dissect and analyze the Supreme Court cases that have caused our civil rights to fade out of view, like a dying star in the night sky
0:00:00.0 S?: We'll hear argument first this morning in case 12-399, Adoptive Couple v. Baby Girl.
0:00:09.0 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about a case called Adoptive Couple v. Baby Girl. On its face, it's a custody dispute between a biological father and a couple who adopted his child, but because the father was a member of the Cherokee Nation, the case had broader implications for the legal protections granted to Native Americans. The relevant statute at play was the Indian Child Welfare Act of 1978, ICWA for short, which was designed to address bias against Native Americans in the child welfare system. The petitioners in the case were a pair of adoptive parents who argued that the biological father of the anonymous Baby Girl did not legally qualify as a parent.
0:00:55.3 S?: This is not the case that Congress had in mind when it passed the Act to halt the depletion of the tribal population, this involves accretion and conscripting other people's children to grow the tribal population based solely on a biological link.
0:01:09.5 Leon: In a 5-4 holding, the Supreme Court ruled in favor of the adoptive parents. According to the majority, this was meant to avoid setting a precedent of Native American parents playing "the ICWA trump card." This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:33.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to fade out of view like a dying star in the night sky. I am Peter. I'm here with Michael.
0:01:45.5 Michael: Hey, everybody.
0:01:48.6 Peter: And Rhiannon.
0:01:49.4 Rhiannon: Hello.
0:01:50.2 Peter: I don't really think that dying stars fade out of view in the night sky... I mean, it takes millions of years, but that sounded more poetic than whatever they run out of, nuclear fuel.
0:01:57.7 Michael: If they go supernova, they get super bright, actually. Brighter than galaxies.
0:02:01.9 Peter: You got your red giant, then it goes white dwarf, I think.
0:02:07.1 Rhiannon: Okay, flexing scientific knowledge.
0:02:09.1 Peter: I don't remember what happens after that.
0:02:12.5 Michael: I took three astronomy courses in college.
0:02:17.7 Peter: I did a... I was a geology guy. You know what I mean? You know. Alright, today's case is Adoptive Couple v. Baby Girl, the kind of case name that lets you know this one is spicy.
0:02:31.8 Rhiannon: That's right.
0:02:32.9 Peter: And frankly, more than a little bit tragic. There was a girl born to a single mother and immediately given up for adoption to a family of the mother's choosing. About four months later, the biological father, who had originally signed away his rights to the child, sought custody. Normally, custody cases do not make it to the Supreme Court, but here there is a twist: The biological father is a member of the Cherokee Nation, and there is a law from the late 1970s that makes it more difficult to take children away from Native families than it would from any other family.
0:03:09.6 Peter: The reason for that is that there was at the time very strong evidence of a systemic effort to remove Native children from their homes and place them with non-Native families. Because of this law, a South Carolina court granted custody to the biological father, and the girl was taken from the adoptive family she had been with at the time for two years. There was media outrage, this baby being stripped from the only family she knew and handed over to a father who only recently seemed to show any interest in custody, all because he is Native American. That was the sort of media narrative.
0:03:41.1 Peter: This struck a lot of chords and some of the outrage, I would say, was at least understandable, although as we'll talk about, probably not warranted. The Court channeled some of that outrage in a 5-4 decision, where Justice Breyer was once again a deciding vote. Justice Sam Alito wrote for the majority that the child should be returned to the adoptive couple. This is an ugly case with a child caught between two sides, but the import of this case is bigger than one custody battle. This is a story of a horrific injustice imposed upon Native American communities and how the Court inverted the meaning of a law meant to protect those communities, so, Rhi, let's talk background here.
0:04:27.3 Rhiannon: Yeah, so let's talk about this law passed back in the late 1970s, like Peter said. This law is called ICWA, the Indian Child Welfare Act. So this is a federal law passed back in 1978, which governs jurisdiction over the removal of Native American children from their families in custody, foster care and adoption cases. Okay, so broadly, what ICWA establishes is that tribal governments have jurisdiction over Native American children in those kinds of cases, as opposed to a state government, although sometimes that jurisdiction is shared with a state court system.
0:05:07.0 Rhiannon: So what this means is that when there's a custody, foster care or adoption question involving a Native American child, the court that handles that case is a tribal court, and built into ICWA also a series of procedural rules that establish a preference for Native American children staying with Native American families. So just a quick example of this kind of procedural rule that ICWA was sets up, so in a case involving foster care placement or the termination of parental rights for a Native American child, under ICWA the tribe or the Indian custodian of the child have an unqualified right to intervene in that case at any time, not just at the beginning of the proceedings.
0:05:54.7 Rhiannon: So contrast that in a state family court, for example, where there might be strict rules about when a party can intervene, say the first 10 days of a case being filed, and note again, that it gives the tribe a right to intervene, not just a biological or adoptive parent.
0:06:15.6 Peter: Right, I think it's safe to say that what the law does procedurally is make it just a little bit harder to take a Native child away from its family in adoption proceedings, and makes it a little bit easier for someone, either the parents or the tribe, to step in and stop an adoption or whatever from actually happening, right?
0:06:38.1 Rhiannon: Right, yeah, yeah, exactly. And there was... There was a lot of evidence and a lot of need for ICWA, that was established by Congress back in the '70s. So, I assume listeners of this podcast understand, at least in the abstract, that there's a long history of violent dispossession, exclusion, ethnic cleansing of Native American tribes and individuals in the United States, all of which happened and continue to happen under color of law.
0:07:07.0 Rhiannon: So the passage of ICWA in 1978 represents a small, very late, small but real attempt at addressing some of these historical harms. So after decades of organizing and advocacy among Native American tribes, in the 1970s it was made obvious to the federal government, to Congress, that Native American children faced disproportionately high rates of forced removal from their tribal homes and from their cultures. Before ICWA was enacted, it was found that anywhere from 25% to 35% of all Indian children were being forcibly removed from their families and placed in predominantly non-Native American homes, which had no relation or connection to Native American cultures.
0:08:00.6 Peter: Say that statistic again. 25% to 35% of all Native children were being removed from their homes.
0:08:07.8 Michael: It is legitimately shocking.
0:08:09.2 Rhiannon: We're talking 1 in 3.
0:08:10.7 Michael: When I read that, I was like floored.
0:08:15.7 Peter: To come up with a statistic that makes me surprised as to how brutal this country has been towards Native Americans, to be brutal even by our standards, it's unreal.
0:08:28.7 Rhiannon: Yeah, yeah, yeah, and the per capita rate of Indian children in foster care before ICWA was nearly 16 times higher than the rate for non-Indian children. So not only is this massive tragedy kind of falling on children and their families from Native American communities, but Congress recognizes in passing ICWA that maybe 1 out of every 3 Native American children being stolen from their family is acutely destabilizing for tribes as a whole. So ICWA was a sign of a shift in federal law, at least a small sign that there was a real need to right the wrongs of the past, because this was amounting to actual existential threat for tribal communities.
0:09:15.7 Michael: Yeah, it's nice to know in the '70s, you could get some sort of consensus that like, hey, ethnic cleansing, we shouldn't do that, shouldn't do that.
0:09:25.0 Rhiannon: Yeah, no, but really...
0:09:26.4 Michael: Yeah, seriously, that is literally like...
0:09:32.5 Rhiannon: That is absolutely what it was. In the congressional findings, there was lots of evidence about the systemic historical patterns that had led to this massive rate of forced removal of Native American children. So turning to this specific case, so we have the ICWA, that's the legal background that's operating here, but the parties involved in this case, let's talk about Baby Girl and where Baby Girl comes from. Baby Girl, as she is identified in the case, because a lot of times children are left anonymous in court proceedings, Baby Girl is the biological child of a man named Dusten Brown and a woman named Christina Maldonado.
0:10:13.6 Rhiannon: The father, Mr. Brown, is a citizen of Cherokee Nation, like Peter said, and Ms. Maldonado is a non-Indian. Now, Brown and Maldonado were engaged in early 2009 when they found out that they were expecting a baby, but the mom, Maldonado, broke off the engagement in May of that year, and she cut off all communications with Mr. Brown.
0:10:35.3 Peter: Ugh, women.
0:10:36.5 Rhiannon: I thought you were like leaning in, I thought you were going to add something good.
0:10:43.2 Peter: I did.
0:10:47.1 Rhiannon: Now, in June, Maldonado sent a text message to Brown asking if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he would relinquish his parental rights. Now, important note here that whether a Native American or not, parental rights cannot be terminated by a text message. Okay, this part of the story is useful, I think, not to establish whether or not Brown is going to be or would be a good father, but just to establish, this is the information the parties had at the time.
0:11:21.2 Rhiannon: Okay, so meanwhile, unbeknownst to Brown, Maldonado, the biological mom, started working with an adoption attorney to place the baby with Matthew and Melanie Capobianco in South Carolina. Even though state law required that an Indian tribe be informed if an Indian child is to be adopted, because of a clerical error, the Cherokee Nation was not notified about this proposed adoption, and also Mr. Brown doesn't know that this is happening either, right, Maldonado has not told him.
0:11:51.0 Michael: The clerical error is that they contacted Cherokee Nation to confirm that Dusten Brown was a citizen, they misspelled his name and got his birthday wrong, right.
0:12:03.5 Rhiannon: That's right, yeah.
0:12:05.3 Michael: Which Dusten Brown, I guess it's with an E, Dusten, not Dustin, but still, I mean, Dusten Brown, Dusten Brown is not the most crazy name.
0:12:14.3 Peter: When you get that many things wrong, if you're like, hey, is this person a citizen of your tribe, and you get the name and birthdate wrong...
0:12:22.6 Michael: Have you really done your due diligence here, yeah.
0:12:25.5 Rhiannon: Yeah, exactly. So Mr. Brown doesn't know that this adoption is happening, the Cherokee Nation does not know that this adoption is happening, right. So the Capobiancos therefore take custody of Baby Girl and they move to South Carolina. When Baby Girl is four months old, though, Brown was finally served with the notice of the proposed adoption, except at the time, he thought the paperwork was for relinquishing his parental rights to Maldonado, the biological mom. Brown at this time was just a few days away from deploying to Iraq and signed the papers quickly, but as soon as he realized that he had signed to approve the adoption, he tried to get that document back, and then he contacted the US Army JAG Corps on his army base.
0:13:12.2 Rhiannon: So there was an immediate stay of the adoption proceedings and Mr. Brown deployed to Iraq. So it wasn't until a couple of years later that the adoption trial actually finally happened. Brown contested the adoption, as did Cherokee Nation, remember the tribe has the right to intervene as a party under ICWA. And under ICWA, the trial court ruled in favor of Brown based on this federal law, and the Capobiancos appealed to the Supreme Court of South Carolina.
0:13:42.2 Rhiannon: Now, even the Supreme Court of South Carolina ruled in favor of Brown, and they said that even though South Carolina state law had certain rules about how a father can establish paternity rights, ICWA preempts state law and applied in this case, so Brown wins and can terminate those adoption proceedings. The Capobiancos turned around and appealed to the Supreme Court of the United States, and that's how we get this case.
0:14:08.9 Peter: That's how you know they're white, they're like, we're going to take this to the Supreme Court. Alright, let's talk about the law here. The majority bases its opinion on a very strained reading of ICWA. They say that the statute does not apply in situations where the Native parent never had custody of the child. To support this, they cite what is essentially just a couple of very brief references in the statute to the phrase "continued custody of the child." They say, well, you can't continue your custody if you never had it, so this can't apply to the father here, he never had custody.
0:14:45.6 Peter: This is a very awkward reading of the statute, but we will spare you the textual arguments here. We did a sort of textualism episode last week with the eviction moratorium, and I just can't subject our listeners to it more than once. So if you want a detailed breakdown of the textualist analysis, both Sotomayor and Scalia filed dissents that laid them out pretty cleanly. They both said, look, continued custody does not necessarily mean that someone had prior custody, it can easily refer to custody in the future, and Sotomayor lays out an additional legal realist point saying, look, even if you don't read it that way, we don't need to let ourselves be strangled by literalism, the purpose of the statute is to protect Native families.
0:15:30.7 Peter: So it's weird to say that, well, if you take the baby away from the Native parent before they have a chance to have custody, that's technically okay, the statute doesn't apply. Under the Court's ruling, you can take a Native child away, you just have to do it quickly, right, before their parents have custody. That very clearly contravenes the purpose of the law. And to give you a good sense of how poorly reasoned the majority is, both Thomas and Breyer join the majority, but write their own concurrences to sort of distance themselves from the majority in different ways.
0:16:01.9 Peter: Thomas is doing classic Thomas, he wants the whole law tossed out as unconstitutional, and Breyer on the other hand essentially says, well, this should be limited to this one situation, because he's afraid of the consequences of the majority's reasoning, which is a good sign that maybe you shouldn't have signed on to the majority's reasoning. The majority does some very telling, very gross shit in this opinion. In the first sentence, Alito references the percentage of Cherokee DNA the child has. He leads off the opinion by saying the girl is 1.2% Cherokee.
0:16:42.5 Peter: Now, the thing is, as Elizabeth Warren learned just a little bit too late, your membership in the Cherokee Nation is not dictated by how much Cherokee DNA you have, so it is irrelevant to this case. So why does Alito mention it several times? Well, obviously, because he's trying to make the point that she's not really Cherokee, so that he can cast doubt on the question of whether this law should even apply to this child at all, right. He's just doing blood test racism on the baby.
0:17:14.9 Rhiannon: Yeah, exactly, and this doesn't just come out of nowhere in Alito's racist tiny pea brain. Blood quantum laws, also known as Indian blood laws, are laws in the United States that date back to the 13 colonies. And these are laws that define Native American status by percentage or fraction of Native American ancestry. These laws have been used historically to racially define Native American groups and limit the civil rights of Native Americans, but it's important to note that many tribes, including Cherokee Nation, do not use this kind of criteria to define who is a member or who is a citizen. We think of tribal groups as racial groups, but that's really a United States, an American definition, right. There is an incredible podcast that I've been listening to called This Land, hosted by a citizen of Cherokee Nation, Rebecca Nagle, and she says...
0:18:10.2 Peter: Rachel, can you edit this out?
0:18:12.7 Rachel: No, I won't.
0:18:14.6 Peter: We're advertising for other podcasts now? Are they paying us?
0:18:17.2 Rachel: Rebecca Nagle gave me $50, so...
0:18:19.0 Peter: I want my 50.
0:18:23.2 Rhiannon: She says a more helpful way to think about tribal sovereigns is like any other country, as a political group rather than racial, they define citizenship not by blood lines, but by kinship family ties, where you're born, right, all of that stuff. And so just making a note that Alito not only is doing his own little individual blood test racism on this Baby Girl, but also sort of extending and perpetuating racist laws that are defining Native American groups in ways that they don't even define themselves.
0:19:00.1 Michael: Right. And another point I want to make, maybe a little bit more academic, is like we talk a lot about the tension between textualism and purpose-driven ways of reading statutes, and usually textualism is sort of overly literal, like looking at the text of the statute without any context, where purpose-driven interpretation is looking at what Congress wanted to do and what the drafting legislators said about the bill and things like that. Sometimes those things aren't nearly as in tension as it sounds, like in this case, where Congress also passes into law as part of the law, its legislative fact-finding and purpose, and in this case, that's part of the law is literally, okay, there was ethnic cleansing going on, and the purpose of this law is to prevent that, to keep Indian children with Indian Nations, that's what we're doing here, that's what this law is about.
0:20:07.8 Michael: And so it's not a surprise that this ended up in Alito's hands, because Alito is more willing than anyone to do overt racism and to ignore the text or do strange readings of the purpose and selectively quotes from the legislative history and do real hack interpretation, and that's what the opinion is just like, it's awful. It's so awful. And so, like an example of the hackishness is that on more than one occasion, Alito says, 'cause he's more than happy to talk about policy implications, is that the way the dissent is reading the law would make it harder to place Indian children with fit, good adoptive parents who are not Indian. But that's the fucking purpose of the law, that's the point.
0:21:03.8 Peter: Entire purpose.
0:21:06.7 Michael: The entire purpose of the law. He's like, this is going to discourage white people from wanting to adopt Indian children, the point of the law, so that fewer white people adopt Indian children. That is what it's doing.
0:21:20.4 Peter: One-third of Indian children were being removed from their homes, so yeah, the whole point of the law was to make it harder to do that. Is that really that complicated?
0:21:28.9 Michael: Yeah, it's fucking wild. The Court is basically saying like, look, we just disagree.
0:21:32.2 Peter: We don't agree with the law.
0:21:34.0 Michael: So we're really supposed to rip this quote unquote Indian child from her loving adoptive parents to this deadbeat dad or whatever, which they also go a long way to intimate that they think this guy is just a real piece of shit, omitting that he's a troop, which they would usually love, and like that there's actually no indication that he'd be a bad father.
0:22:00.0 Peter: No, and in fact, a lower court found that he was a good and loving father, that was part of the finding in the court below.
0:22:06.4 Michael: And as a result of the lower court rulings, he did have custody for 18 months, and by all indications was a great father in that, alright. At the very least, a sufficiently good father that you didn't need to be ripping custody away from him to protect the child.
0:22:22.4 Rhiannon: Absolutely, yeah, yeah. You know, something that has framed my thinking about this case and preparing this episode was something that I heard on that podcast again, it's called...
0:22:33.8 Peter: Son of a bitch.
0:22:33.9 Rhiannon: It's called This Land with Rebecca Nagle, and she says early on in the first season that as long as the United States has been making laws about Indian tribes, they have been breaking those laws. ICWA was passed with intention, with tons of evidence, with tons of congressional findings about systemic and historic injustices that were falling on Native American communities, and here you have Alito making an ass of himself, really showing how, in general, the Supreme Court Justices are not learning Indian law, they're not learning this history and their letting ignorance and those stereotypes sort of color their reasoning in these decisions.
0:23:17.8 Michael: When we say Indian law, what we're talking about, that's sort of like a legal term of art that refers to when the federal government legislates regarding the relationship between governments and the Indian nations.
0:23:32.2 Rhiannon: Exactly, and another thing to note that people should have on their radar in terms of ICWA, in terms of federal Indian Law, is that a case challenging the constitutionality of ICWA is up at the Supreme Court this coming term. I think that it's called Brackeen. And this case is brought also by a white adoptive couple who are looking for their adoption of a Navajo child to be made permanent. They are backed by the state of Texas as well as many conservative think-tank groups and, yeah, this is a challenge to ICWA, arguing that it is unconstitutional because it favors Native American groups based on their race, that ICWA sets up unconstitutional racial preferences by preferring Native Americans over, say, white families.
0:24:26.9 Peter: Again, despite the fact that it's not actually a racial category in the eyes of the tribes themselves, but whatever.
0:24:33.5 Rhiannon: In fact, Chuck Hoskin Jr., who is the principal Chief of the Cherokee Nation, he told Vox some months ago when interviewed about this case that's going up to the Supreme Court, he said "the core of their argument," the white family's argument, "the core of their argument is that it's an unfair racial preference and that we should have a color-blind system." What that misses is what's bedrock of federal Indian law in this country, which is that tribes are sovereign, not distinguished as a race, but as a special political designation, that's a critical underpinning of not just ICWA, but many laws that relate to housing and healthcare and education and employment.
0:25:13.7 Rhiannon: For that to be eroded by a successful attack on ICWA, that would have broad implications on all of these. So really just highlighting that the legitimacy of ICWA, the continuation of ICWA as sort of a bedrock of federal Indian law is really at stake in this coming term, and you have Roberts and Alito really primed for these kinds of very ignorant racialized arguments that they'll be kind of all too ready to endorse.
0:25:43.7 Michael: Yeah, that's right. And you know, Justice Gorsuch is the rare, I think, the only Justice, at least in modern times, that came up in the West Coast judicial circuits and is very familiar with Indian law and is good on it. We've talked about... He wrote a great opinion. The problem is, now that Ginsburg been replaced with Amy Coney Barrett, Gorsuch plus the liberals is not enough to cobble together a majority. So how Barrett is on these issues is a big unknown, but I'm not bullish on her breaking ranks. Maybe over-ruling ICWA would be a bridge too far for them, but Thomas has already indicated that he thinks it's unconstitutional on other grounds, not related to unfair affirmative action-style arguments, so he thinks it's too broad a reading of the Indian Commerce Clause, which is what gives Congress the power to regulate the relationship between the federal government, the state governments and the tribes.
0:26:44.6 Peter: So I think when you hear about this case, it may well seem unjust in a vacuum, you had this couple who did what appears to be their best to work with a mother to adopt a child, custody gets taken away from them at about two years old, you know, those are tough facts.
0:27:03.8 Michael: They were like, they supported her during pregnancy, they were there at the birth, right.
0:27:07.2 Peter: One of them cut the umbilical cord, which is just... What the fuck, are you kidding?
0:27:13.6 Rhiannon: That's pretty common in adoption.
0:27:15.4 Peter: I doubt it. Don't fucking lie to me. I'm not going to go on with my day believing that that happens all the time, I refuse. Okay, I think it would be helpful to point out that the majority's reading may well lead to the very sort of discrete injustices that they are ostensibly trying to avoid. The Court is holding that the provisions of this law only protect Native parents who have custody, but as Sotomayor points out in dissent, there are plenty of non-custodial parents who are still active in their children's lives, and this decision would deprive them of the protection of the law.
0:27:48.8 Peter: So if there's a Native couple who had a child together, but have since separated and one parent has custody, the majority is holding that the protections of this law would not apply to the other parent, despite the fact that the parent could very well be a loving and active parent who is ready and willing to take on custody.
0:28:03.8 Rhiannon: Of course, yeah.
0:28:05.6 Peter: What's pretty clearly happening here is that the majority is letting their feelings concerning this particular situation dictate their position, and the result is that they are creating a haphazard rule that doesn't really stand on its own.
0:28:15.9 Michael: That's right. And you know, there's a legal axiom that hard cases make bad law, and just about everyone will hear that at some point in law school or throughout their legal careers, which, fittingly enough, originated in a custody case in the 1830s, so...
0:28:36.3 Rhiannon: On point.
0:28:36.9 Michael: But the idea is that there are always going to be edge cases, and a good rule that comes out in just scenarios in 99% of the time might have those 1% cases that are tough, that for one reason another, they have a sympathetic defendant or whatever. You know, you don't like how it comes out, but that doesn't necessarily mean you need to work around those scenarios. And in fact, doing so is often to the detriment of the law altogether, like if you don't believe in the death penalty, and there are a lot of great reasons not to believe in the death penalty, there's always going to be some asshole who's like, "Yeah, but what about a guy who kills and rapes children or whatever," and we have him on video and he's saying...
0:29:27.8 Rhiannon: "I love killing children... "
0:29:28.9 Michael: "And I have no remorse, like what about that guy?" Again, hard cases make bad law. Like, we shouldn't torture people. What about if there's an atomic bomb about go off in LA? And so what the axiom is saying more than anything, is that as jurists, as lawyers, as people with responsibilities to the law in the country, you have to have the courage sometimes to accept a tough outcome in the name of a just system. And I just want to highlight that, because Breyer's opinion in particular is an example of precisely this sort of cowardice that this axiom is targeted at, where he knows, he knows that this is bad law, he knows that this will make the law less just overall, but he's just too afraid to take a stand.
0:30:30.2 Michael: And in this case, as I mentioned, there's no textual real ground to stand on. And so the most committed textualist of them all, Scalia, as Peter noted, dissented, which means there were four dissenters, three liberals plus Scalia, and Breyer's cowardice is the reason why this went the other way. He could have won and not joined the majority opinion, and just if he really thought that kid needed to go with the adoptive parents, written a separate opinion concurring in judgment only and narrowed the ruling, making it a plurality. Or he could have just fucking had some balls and dissented and said, it's tough, it's unfortunate, and sometimes there are tragedies and they're unavoidable. Like this was totally avoidable if they'd got this guy's fucking birthday right.
0:31:21.6 Rhiannon: Right, yeah, right, exactly.
0:31:24.1 Peter: And also, I would like to point out before we move on that conservatives often revel in the idea that the correct application of the law might lead to certain unfortunate outcomes. And here, when that unfortunate outcome is some nice white couple not being able to adopt a kid, they cannot tolerate it. That's a bridge too far for them. I think it's very telling. So let's get a little bit bigger picture here. We've used the term ethnic cleansing a couple of times, and I would like to give a defense of using that terminology in this context, because I think that when it comes to the effort to remove Native children from their families, the project to remove Native children from their families, especially in the mid-century, it's best viewed as an evolution of American policy towards Native populations.
0:32:16.0 Peter: For the first century or so after America's founding, policy towards the tribes was pretty obviously one of just violent extermination. Pick a fight, kill a lot of people, sign a peace treaty, violate the treaty in the name of manifest destiny, rinse and repeat. At the turn of the 20th century, the status of the tribes moving forward felt in some ways very unclear. They had been largely defeated from a military point of view, there weren't significant military conflicts to come; for the most part their territory had been reduced to a small number of reservations, they were stricken with widespread poverty, culture had been forcibly erased, and many people in government felt what needed to happen was a final push towards cultural assimilation for the tribes. And the government funded schools for Native children designed to sort of give them a European American education and all that.
0:33:08.7 Peter: And starting in the 1940s, the official policy of the United States towards Native populations was called the termination policy. It began with efforts by several states to shift jurisdiction over certain criminal offenses from the tribes to the states themselves. It hits its crescendo in 1953 when Congress passed a resolution to terminate a large number of tribes across several states, and the goal of termination was to forcibly assimilate the remaining Native populations into the United States. When I say termination policy, what that's referring to is the termination of the special status, the special legal status of the tribes.
0:33:48.1 Peter: That means reservations would be dissolved, handed over to the states or the federal government, any federal aid or services would be cut off. In 1956 the Indian Relocation Act passed, which encouraged Native Americans to emigrate to large urban areas with the hope that they would assimilate there, and it was only after a large campaign by Native activists in the 1960s that this policy came to a halt and the federal government informally rolled it back and began to allow for the recognition, re-recognition of tribes that were terminated, and many dissolved tribes were able to win back their recognition in the coming decades, although not all of them, it should be pointed out.
0:34:26.4 Peter: So the discovery of a massive effort, coordinated or not, to displace Native children from their families comes on the tail end of all of this, right. So I do not think that it's an exaggeration in the slightest to describe this as part of a campaign of ethnic cleansing. It is very literally the continuation of a series of policies and practices that began with outright war and sort of softened over time into a series of efforts to forcibly remove any ethnic and cultural remnants of Native populations that might still exist in America.
0:35:02.3 Peter: And I bring this up because that's what's on the other end of the scale of justice here. This isn't a custody battle, this is about a massive injustice being delivered to Native populations and the types of laws that are necessary to fight against it.
0:35:19.6 Michael: Right, and in the face of that, I think the majority can be read as sort of callously implying that they don't think Native tribes should get any favorable treatment at all.
0:35:30.5 Rhiannon: That's right, yeah.
0:35:31.7 Michael: That they know what Congress's better judgment was in this case, and they know what the policy was, and they just disagree, they don't like it, they don't care. It's such, just like a indifference to this long history of racial or ethnic violence. Total disregard for Native peoples. Yeah, it's truly disgusting. I had to stop reading this opinion multiple times 'cause I was so upset.
0:36:05.0 Peter: Talking a little more generally about custody proceedings, the predominant factor in child custody cases is what's called the best interests of the child, and the idea is very simply that when deciding who receives custody, the child's interests are prioritized. Makes a good amount of sense, of course. I think in and of itself it's not very controversial. The problem is that a judge's perception of what's in the best interests of a child is very frequently tinged with class and racial and other biases, so it's not unusual for a judge to believe that living with a wealthier parent is better for a child. It's often a simple fact that wealthier parents can provide in certain material ways a better life for a child and can impact anything from the clothes they wear to the social activities they have access to, to the quality of education, all of which are sort of very real aspects of a child's upbringing.
0:36:51.8 Peter: So it's very tempting to simply think, well, what's in the best interests of the child is giving custody to the wealthy parent or the wealthy couple, right, and Scalia touches on this in his dissent, and he's a conservative, of course, so he frames it in terms of individual rights. He says look, parents have rights too, you can't just terminate a parent's right to custody because someone else might have more resources or could theoretically provide a little more for a child in a material sense. And I think that's not without merit, but I think the left critique is moreover that we should be wary of accepting and reinforcing structural divisions in our society in the name of some very narrow notion of the best interests of the child.
0:37:28.1 Peter: This entire law, ICWA, stems from an era where Native families were frequently deemed inadequate and white families were just deemed superior, generally speaking. And in nearly every discrete case viewed individually, there was likely a real argument that what was being done was in fact the best thing you could do for the child, but if you zoomed out, you could see this campaign of state-sponsored social engineering that was sort of steadily eradicating an ethnic and cultural heritage.
0:37:56.1 Peter: So the Court is talking very narrowly about the best interests of the child, but what about the interests of the community, what about the other children in those communities, how much damage is being done to those communities and those children by the removal of up to a third of all Native children from their homes? And that's the risk of being too myopic in these cases. There was public and media outrage in this case that's hard to divorce from the culture and class of those involved. The adoptive family was, I think, a relatively well-off white family living in what was presented by the media as a very idyllic little life, and the biological father, who I think pretty much everyone can admit, was not particularly well-educated or well-off, was portrayed as a deadbeat, despite the fact that a court had found him to be a very capable and loving father.
0:38:43.3 Peter: So I think the outrage comes from people who think that this case is simple. Dr. Phil didn't have this couple on his fucking show to talk about the complexity and nuance of the situation, right, he wanted to present it as transparently unjust. And the real story is one of a man who didn't understand his rights vis-a-vis his child, who was arguably strong-armed in surrendering his claim to custody, and a people and a culture that had been systematically separated from their land and their families for centuries.
0:39:10.6 Rhiannon: That's right.
0:39:11.9 Peter: So it's understandable to prioritize the well-being of the child in a custody case, but you cannot just dispose of all that context and the rights of all those other people as if they don't matter.
0:39:21.4 Michael: Right. I'm not going to go to the mat that this is the best father, and he seemed totally uninterested in being in the kid's life when he thought that the biological mother was going to raise the kids, but there's every indication that the second, like within 24 hours of being on notice that she wanted to put the kid up for adoption, he started fighting for custody, he wanted custody. And from that perspective, it's like, who cares about ICWA? How are we so callous about a biological father's rights? Was it Sotomayor's dissent makes the point that like... There are I think at least 15 states with laws that, just their own adoption laws, he would have been winning, on those grounds that didn't need ICWA, right. There's a men's rights activist angle to this too, which I think there's a little bit of... You can see a little bit of that in Scalia's dissent, like, hey, you know, fathers have rights too.
0:40:16.2 Michael: It's not an easy case, right, I don't think there are easy answers here, but I think the big picture answer is clear, which is the problem that Congress was addressing and its solution should have dictated the outcome here.
0:40:29.5 Peter: Right, yeah, it's not the type of case you can sort of just tie up in a bow and feel great about, but that said, I do think that the outcome you need to arrive at is clear.
0:40:42.1 Michael: That's right, that's right.
0:40:44.1 Rhiannon: Yeah, you know, while we're talking about custody, I think it's worth bringing up the way child welfare legal systems across all of the states, not just in terms of Indian law and forced removal of Indian children, but across the country, how these systems are used in this kind of social engineering function in furtherance, really, of white supremacy in the US. One of the major problems contributing to the forced removal of Native American children that Congress identified when it was passing ICWA back in 1978 was the role of mostly white social workers who misunderstood Native American culture, Native American families, the role of extended families in raising children in many Native American tribes, and you see that sort of systemic misunderstanding being used in terms of violence on families of color, even in non-Native American communities.
0:41:43.3 Rhiannon: Data shows that today, shockingly, 53% of Black children's homes are investigated by child welfare officials.
0:41:53.3 Michael: That's wild.
0:41:53.4 Rhiannon: This is not just benign social work or benign welfare procedures on the part of the state into poor communities, this is the routine kind of breaking apart of families, in particular families of color across the country. And you see how all these systems lay on top of each other. First it's the child welfare system, then it's the education system, then it's the criminal punishment system, right. And all of these layer on top of each other to degrade these community and cultural ties, and what ends up happening is that white people and white systems are making the decisions for these communities, and as a result, what gets reified is white supremacy.
0:42:39.4 Peter: Yeah, 53%, it's just another one of those statistics where I'm like, even for this country that is fucking egregious. So to wrap up here, I think the tragedy that has befallen Native communities is sort of over the past like two centuries and change, is difficult to comprehend, it's so vast that you become overwhelmed by the scale of it, and it's easy to forget that it is composed of these sort of smaller discrete injustices. And if you want to build a legal framework that protects against the encroachment of those injustices, this law, ICWA, is what that might look like.
0:43:18.4 Peter: It's not always clean and perfect around the edges, but it is necessary. Congress saw a gross injustice being delivered upon a marginalized community and passed a law that granted them just a little bit of extra protection. This case is the Court taking some of that protection away almost explicitly because they just don't think it's needed. A lot of the reactionary project involves just pretending that the gross injustices of the past are too distant and irrelevant to concern ourselves with any more, they are not pertinent to the current moment. But I think that this case is important because of exactly how clearly you can see the line between the open warfare and violence of the 19th century to the formal and informal policies of ethnic cleansing directed at Native populations that arose in the mid-20th century and beyond.
0:44:09.1 Peter: What conservatives would have you believe is that what has changed in this country since then, since the '60s and '70s when this law was necessary, is the country's moral center, we don't need these laws anymore, because everyone has accepted that these policies were unjust, and we've all learned our lesson, it's okay now. If you believe that you are an absolute sucker, we need laws like ICWA just like We need anti-discrimination laws, because under no circumstances can you trust this rotten country to uphold the humanity and dignity of everyone in it. And maybe that's a little bit dramatic, but I just spent several days reading about this country's treatment of Native Americans, so I don't give a shit. That's how we're wrapping. We'll see you in a couple of weeks.
0:45:00.4 Peter: Next week, we are taking off, something very important came up, I want to go to the beach, so no episode next week, but the week after, we are coming back with Nieves v. Bartlett, a case about retaliatory arrest, a cop's ability to arrest you for doing speech that they don't like. Follow us on Twitter @fivefourpod and support us on Patreon, patreon.com/fivefourpod, all spelled out. We will see you in a couple of weeks.