7. Before The Court | Crooked Media
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September 27, 2021
This Land
7. Before The Court

In This Episode

As the case heads to the Fifth Circuit – the last stop before the Supreme Court – we go inside the courtroom to hear the arguments and the decision. 


Show Notes





Rebecca Nagle: Just a note before we get started. The stories we’re sharing this season touch on different kinds of trauma. Please take care of yourself while you listen.


Fawn Sharp: I was in the courtroom for a period of about five minutes all alone. And so I sat there quietly before another soul entered the courtroom. And I just bowed my head and offered a prayer for not only the case, but for wisdom and guidance for our entire legal team and those that were in the audience.


Rebecca Nagle: This is Fawn Sharp. In January of 2020 she was sitting in the Fifth Circuit Court of Appeals, one step below the Supreme Court, waiting for oral arguments to start in the big federal lawsuit we’ve been following this season, Brackeen v Haaland. Sharp is the vice president of Quinault Indian Nation and the President of the National Congress of American Indians. But before the arguments got started, Sharp got in trouble.


Fawn Sharp: So I wear a traditional Quinault cedar hat. Cedar in the current language is chitum and it represents strength. It represents a sacred bond we have to our lands. Shortly before the justices came out, I was asked to remove my cedar hat and I told the staffer that I can’t do that. I simply just said I can’t. And then she proceeded to ask me if it was medically necessary to have my hat. And I told her again, looked at her squarely in the eyes and I said, I cannot remove this hat. And it is medicine, it is cedar, it is a part of who I am. And she at that point just said fine and walked away. But that was sort of a first impression before the justices even walked out into the courtroom, I was being challenged and asked to strip myself of my Quinault identity.


Rebecca Nagle: Sharp’s tribe, Quinault Indian Nation is actually part of the case. You’ll remember the lawsuit started as the Brackeens and Texas suing the federal government. Soon after other plaintiffs and states joined, and then tribes intervened. Navajo Nation because this case involves their children, and also Cherokee Nation, Oneida Nation, the Morongo Band of Mission Indians and Sharp’s Tribe.


Fawn Sharp: The Indian Child Welfare Act is incredibly important for the health and well-being of Quinault families because it serves as a foundational piece to our society to ensure that we’ll continue for generations.


Rebecca Nagle: So five tribes and the US federal government are defending ICWA, and three foster families, one birth mom, and three states are suing to strike it down. Back in district court, that Texas judge declared ICWA unconstitutional. But the tribes and U.S. federal government appealed to the Fifth Circuit, just one step below the Supreme Court. When Fawn Sharp was sitting in that courtroom in January of 2020, it wasn’t a regular hearing. It was this special thing called an en banc. That’s when all the judges on the circuit hear the case. Normally it’s just a few. These types of hearings are very rare so it was a big deal that it even happened. [background sounds of people] The courtroom was packed and tense. The people you’ve heard about so far this season, almost all of them were there. I was there, too. The room was split by an aisle down the center, on the left side that people who support ICWA: tribes sent delegations, national Native leaders flew in, and local tribes came to show their support. On the right side, sat the people who want to strike ICWA down. It was a much smaller group. They sat towards the back, behind a few rows of law clerks. Before the arguments started, they were chatting with each other. I saw Jennifer Brackeen point at me, but we didn’t speak. Sitting next to the Brackeens was Mark Fiddler, that adoption attorney who connected them to Gibson Dunn. I tried to get a comment from him as he left the courtroom.


[clip of Rebecca] Mark, can I get a quick comment?


[clip of Mark Fiddler] I really don’t us to talk. I’m sorry.


[clip of Rebecca] OK, you do mind telling me why?


[clip of Mark Fiddler] Matt’s handling all of our communications for the team.


Rebecca Nagle: Matt is Matthew McGill from Gibson Dunn, the plaintiff’s other lawyer. When it was McGill’s turn to speak, he told the same story he’s been telling about how the Indian Child Welfare Act is tearing families apart.


[clip of Matt McGill] Thank you, Chief Judge Owen, and may it please the court, Matthew McGill for the individual plaintiffs. My client opened their hearts and their homes to a child in need. That child is a part of their family. They are here because the Indian Child Welfare Act’s placement preferences turned their lives and their families upside down, solely because the child they took in is an Indian child, and they are not, and cannot be because of their race, Indian families.


Rebecca Nagle: During the hearing, people on both sides of the aisle were listening for one thing, whether or not this case would go to the Supreme Court. Tribal leaders don’t want this to happen because that’s where it could do the most damage. If the Supreme Court declares ICWA unconstitutional, it could impact generations of Native children, the legal status of tribes, and so much more.


Rebecca Nagle: You’re listening to This Land, a podcast about the present-day struggle for Native rights. From Crooked Media, I’m your host, Rebecca Nagle, [ᎪᎯᏂ ᏓᏆᏙᎠ. ᏣᎳᎩ ᎠᏰᎵ ᎨᎳ.] citizen of Cherokee Nation. This season, we’re following how a string of custody battles over Native children became a federal lawsuit that threatens everything from tribal sovereignty to civil rights.


Rebecca Nagle: When McGill got up to tell that story about how ICWA is tearing families apart, he didn’t focus on the little boy the Brackeen adopted, Antonio. He talked about another Native child, a child I haven’t told you about yet, Antonio’s little sister.


[clip of Matt McGill] Unbelievably, the Brackeens are living this nightmare now for a second time.


Rebecca Nagle: Her custody case is still pending. And while it’s heartbreaking that this toddler is stuck in limbo, that limbo actually helped the Brackeens in federal court. That story after the break.


Rebecca Nagle: In the summer of 2018, Antonio’s birth mother had another baby. Both the mom and baby tested positive for drugs. At two days old, the child was placed in foster care, but not with the Brackeens. We’ll call this baby, Yoselyn. When Yoselyn was about six months old, her great Alvetta found out that she had been born and she wanted to raise the baby. Navajo Nation and Texas social workers agreed she was the best placement. But before Yoselyn could go live with family, there was a court hearing where Chad and Jennifer Brackeen intervened, because Jennifer Brackeen had also found out about Yoselyn’s birth. Here’s what she wrote in her blog, read by an actor:


Actor as Jennifer Brackeen: My heart stopped. As we processed this news, I cried, a lot. I knew what the right thing to do was. I knew what God was asking our family to do, but I didn’t want to start over again. Babies are so much work and we’d been in the weeds with little kids for nine years at this point, we were getting excited about adventures with older kids when we were hit with this news. We started pursuing her within a few months of her birth. As is this case with us, nothing is easy.


Rebecca Nagle: So after crying at the news of Yoselyn’s birth, Jennifer decided she had to fight for custody of a child that she had not fostered, and over that child’s blood relative. At first, Chad and Jennifer Brackeen contacted the Texas Department of Family and Protective Services, but social workers wouldn’t give them information about the baby. So their lawyer, Matthew McGill, sent a letter to the Deputy Commissioner of Texas DFPS. But the department wouldn’t budge. They wouldn’t place Yoselyn with the Brackeens. So Jennifer tracked down Yoselyn’s mother in jail and got her to sign an affidavit that she wanted the Brackeens to adopt Yoselyn. Yoselyn’s caseworker would later testify the Brackeens got that affidavit by promising Yoselyn’s mom an open adoption, meaning she could always have contact with the baby. The caseworker said that was concerning. When we asked the Brackeens about this, they declined to comment. Chad and Jennifer used that affidavit to help get standing in Yoselyn’s case, in other words, to have a say in what happened. They showed up in family court with a legal arsenal. They had Gibson Dunn of course, and the Attorney General of Texas. During the trial, the Brackeens said they should be chosen because they had adopted Yoselyn’s brother and they wanted the siblings to grow up together. In the 10 months Yoselyn spent in Texas foster care, she had been to the Brackeens home eight times to visit her brother. Here are excerpts from Chad’s testimony read by an actor. Remember the Brackeens changed Antonios name.


Actor as Chad Brackeen: So our child, Luke, Yoselyn’s brother will ask about his quote unquote, “baby sister”—that’s how he refers to her, my baby sister—every day for like a week, week and a half after she visits. We explained that this baby that looks like him, that’s in this home is his sister.


Rebecca Nagle: Chad talked about wanting Antonio to grow up with a relative, with someone who looked like him. A lot of people want that for their children, which is why ICWA was created. Alvetta was one of the last people to take the stand. Aletta doesn’t have money like the Brackeens do, and she was asked about that, about the size of her house, about the fact that her adult children help support her financially. On the stand, most of her answers to these questions were one word, yes or no. Like Jennifer, Alvetta found out about Yoselyn’s birth by word of mouth, her reaction couldn’t have been more different. In court, she said, quote, “I love kids. And when I saw her picture, I started loving her.” The family court judge ruled that Yoselyn would live with the Brackeens. He added that every summer she would visit Alvetta on Navajo Nation. That decision was appealed by everyone: Navajo Nation, Texas DFPS, and the Brackeens, who objected to those summer visits. Yoselyn’s custody case, the question of who will raise her, is still under appeal at the Texas State Supreme Court. She’s three years old. And while that uncertainty isn’t good for Yoselyn, it actually helped the Brackeens in their big federal lawsuit. Here’s their lawyer, Matthew McGill, in the Fifth Circuit. He calls Yoselyn by her initials, WRJ.


[clip of Matt McGill] Once again, their family is at risk of being torn apart as the Navajo Nation has played the ICWA trump card in an effort to thwart the wishes of YRJ’s mother, that WRJ be placed with the Brackeens, something that the Navajo Nation can do only because WRJ’s mother is Navajo and WRJ has the requisite blood quantum.


Rebecca Nagle: Remember, the Brackeens adoption of Antonio is final, which makes it harder for them to prove that ICWA harmed them and that the law going away would fix that harm, two things they have to prove in order to have a case. But now they’re fighting for custody of Yoselyn and what will happen there is uncertain. So the Brackeens jumping through all those hoops, inserting themselves in her case, strengthened their federal lawsuit. When the Fifth Circuit judges looked at that question, do the Brackeens have a case? They said yes, because of Yoselyn. She wasn’t even born when the Brackeens filed this federal lawsuit, but her custody case helped keep it going. To argue that ICWA is based on race, McGill focused a lot on a concept that is really loaded” blood quantum.


[clip of Matt McGill] There’s nothing the Brackeens can do to join the Navajo Nation because they lack the requisite blood quantum. And that is what, in, so our central submission here is that when a classification operates in state affairs to the direct disadvantage of non-Indians, as ICWA does, in that context it’s racial.


Rebecca Nagle: Blood quantum was created by Congress a century ago with the stated goal of, quote, “getting rid of the Indian problem.” The idea being that once Native children were less than half or a quarter Native, they would no longer be Native. A century later, it’s still around. The US federal government assigns every enrolled Native person a fraction that measures how Native we all are. It’s like the paperwork that comes with bred dogs. At first, blood quantum was forced on tribes. Today, some use it, some don’t. It’s up to that tribe. Just like what determines citizenship in France or Mexico is up to those countries. Most non-Native people don’t know any of this, probably couldn’t even tell you what blood quantum is, but somehow they’re still obsessed with it. I can’t tell you how many times a white person has asked me what part Cherokee I am. And that weird combination of ignorance and obsession was on full display at the Fifth Circuit, and it came mostly from the judges. This is Paul Spruhan, Assistant Attorney General of Navajo Nation.


[clip of Paul Spruhan] Your honors, the Navajo Nation, a treaty tribe, is here to defend Indian Child Welfare Act as a statute that fulfills the federal government’s treaty obligations to sovereign tribal nations.


Rebecca Nagle: He’s trying to explain why ICWA is based on political, not racial, status. The Office of the Attorney General of Navajo Nation declined to speak with us directly.


[clip of Paul Spruhan] ICEA’s definitions are plainly purely political. They are directly connected to membership in a sovereign tribal nation, with a government to government relationship with the United States.


Rebecca Nagle: But the justices didn’t want to talk about treaties or the rights of sovereign Indigenous nations to determine their own citizenship, they wanted to talk about blood quantum. Again, Yoselyn was referred to by her initials WRJ.


[clip of Judge] And there’s one child in this case, I believe, WRJ, that was made eligible by, for the statute for—eligible as an Indian child through eligibility for the Navajo Nation. Is that eligibility in this case determined purely by the child’s blood?


[clip of Paul Spruhan] No, as we have suggested in our briefing, blood itself is insufficient. It is one element to be eligible to be part of the Navajo Nation and many other tribes.


[clip of Judge] The eligibility of WRJ for the Navajo tribe, eligibility, is determined by whether YRJ has a quarter quantum of Navajo blood?


[clip of Paul Spruhan] So to answer the question, in all cases, blood in and of itself is not the exclusive element for WRJ or others.


Rebecca Nagle: What’s ironic about how blood quantum is used in these cases is that it cuts both ways, it’s used when children have higher blood quantum to say ICWA is clearly race-based, but it’s also used when children have lower blood quantum.


[clip of Judge Owens] Am I not correct that one of the children here have 3/256ths Indian blood?


Rebecca Nagle: This is the Chief Judge of the Fifth Circuit. She’s not sure what child or even what case she’s talking about, but she remembers that specific fraction. You might remember it, too, because it’s from the Baby Girl Case, which we talked about a couple episodes ago. That case ended in 2013. I asked Sharp what she thought about the judge’s fixation on blood quantum:


Fawn Sharp: To even go to that place, to even think that they had a position of moral or legal authority to second guess and question a tribe’s ability to determine its own membership and its own citizenry was, was quite offensive and reflective of a misunderstanding of basic sovereignty.


Rebecca Nagle: During oral arguments in the Fifth Circuit, McGill did something that shocked some people: he read Yoselyn’s enrollment number in Navajo Nation.


[clip of Matt McGill] That is the document by which the Navajo Nation said that she was enrolled as a member number [beep] of the Navajo Nation.


Rebecca Nagle: That number is unique to Yoselyn. It’s like a driver’s license number or Social Security number. At the time, Yoselyn was two. Sharp entered the court that morning, resolute and hopeful, but by the time it was all over, she was deflated.


Fawn Sharp: As I walked out of the courtroom, I felt, I felt terrible


Rebecca Nagle: Because of a question Chief Judge Patricia Owens asked.


[clip of Judge Owens] This is purely hypothetical, not, not, not pejorative. Suppose Congress decided that Native Americans were particularly subject to alcohol abuse and that when they were off the reservation, they got into an excessive number of DUI cases and they were treated excessively harshly. Could Congress pass a law that, that enacted a new sentencing regime for, quote, Indians defined similar to this who would get into DUI?


Fawn Sharp: The last line of questioning by one of the judges related to drunk Indians and the question that was at the heart of what that justice was after, I think could have been asked in a way that was not as stereotypical of drunk Indians. To have that, those words be being spoken in a courtroom was truly offensive. But after I left the courtroom, I really started to reflect on the fact that we have so much work to do in educating others. And there’s still an incredibly large gap between a basic understanding of who we are as tribal people, as tribal nations, and those who are in a direct role of making decisions that directly affect our lives. The questions that they asked were just at such a fundamental level of misunderstanding. It was shocking.


Rebecca Nagle: That lack of understanding allowed the plaintiffs in this case to make some really radical arguments that went against centuries of law about the unique political status of tribes. Sharp remembers one argument in particular from Texas.


Fawn Sharp: He made a very bold declaration that we are, what did he say? Sub-sovereigns.


Rebecca Nagle: Here is what the former Solicitor General of Texas said. Side note: he now works at Gibson Dunn.


[clip of Kyle Hawkins] It’s giving a subordinate sovereign the power to write law that binds state judges in Texas.


Fawn Sharp: He has no idea that we’ve existed from when time began, that we have this unique relationship with the United States, that we predated the United States, we predated the state of Texas. But yet we’re somehow subservient and not on equal footing with any of these other sovereigns. It definitely is so much more than just the welfare of children. I think there’s a strategic and aggressive and intentional and a deliberate and a bold effort to undermine every bit of tribal sovereignty.


Rebecca Nagle: Tribal sovereignty isn’t something that the United States gave to tribes. We existed before the United States was even a country, before it was even an idea. And so our sovereignty, our right to self-determination over our land, our culture and our people, it’s inherent. Of course, centuries of colonization impacts how much of that sovereignty our tribes can exercise, but during those years of colonization, we fought back and protected important rights that Congress and the courts and even the Constitution recognized. And now people are saying that even those rights went too far and federal courts should take them away. There are big legal reasons why the battle over the Indian Child Welfare Act is about the future existence of tribes. But for Native leaders like Sharp, the well-being of Native children, of Quinault children, has always been about the future of her tribe.


Fawn Sharp: I think it’s very important for us to understand and recognize where we are as tribal nations in the continuum of our effort to heal, restore and recover from generations of genocide. This is such a critical time. We’ve come such a long way in a relatively short time of repatriating our lands, our cultures, and we are just getting to a place where it’s so important. And we’re starting to see the results. We’re starting to see another generation of Native citizens and children being born into societies where they can speak their language, where they know their songs, their dance, at a time when we are starting to make such tremendous strides, now more than ever, we need to protect and ensure every child that’s born into our communities and our tribal nations has a fair shot at not only joining us in advancing our tribal nations, but being part of that healing process, because we all have a role and a part in that.


Rebecca Nagle: What the Fifth Circuit decided after the break.


Rebecca Nagle: One Tuesday, last April, more than a year after we were all in that courtroom together, my phone started blowing up, the decision was out. I downloaded it, read what I could. And the next day I called up Matthew Fletcher.


Matthew Fletcher: I was sitting in my living room watching my son play video games.


Rebecca Nagle, narrating: We’ve heard from Matthew Fletcher before. He’s a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and law professor at Michigan State University.


Matthew Fletcher: I just walked over and said, well, this is going to be bad. And I prepped myself for the inevitable shit show. And I sat down and tried to download the 325-page opinion, which took a while.


Rebecca Nagle: When you started to read the opinion, what was your immediate gut reaction?


Matthew Fletcher: I was very deflated. My stomach sunk into the floor. My reaction was that this is everything that’s wrong with the American legal system. And as I read, I realized that law doesn’t matter to judges. That it’s all politics.


Rebecca Nagle: it’s hard to explain the decision because there basically wasn’t one. Remember when I said that the en banc was a panel of a bunch of judges? Well, that panel had an even number.


Matthew Fletcher: What I did not expect was that they would split eight to eight on crucially important questions of Indian law, constitutional law.


Rebecca Nagle, narrating: There were a few narrow parts of the law, basically sentences, where a majority agreed ICWA is unconstitutional, and then a few other parts of the law were a different majority agreed ICWA is constitutional. But for the most part, they couldn’t make up their minds.


Matthew Fletcher: Basically, I’m wavering back and forth between trying to think that this whole thing is a giant nothing burger. And I’m also trying to say, think that this is how close the end of Indian law is. That 8 out of 16 judges in the Fifth Circuit would throw the whole thing out the window in a heartbeat right now.


Rebecca Nagle, narrating: The split decision seems like it would be a disappointment for both sides, but if your goal is getting this case to the Supreme Court, it’s perfect because it’s a complete mess.


Rebecca Nagle: The image I had and I don’t know anything about sports, I don’t know why this came to my mind, but it’s sort of like the guy who holds the football before someone makes the field goal.


Matthew Fletcher: I think that’s right. More like taking the football and just as the person is coming to kick it, throwing it, hitting him in the face with it. It’s scary because the Supreme Court is the next stage and there’s a bunch of different things that can happen. It’s scary because we don’t know what those things are. But I strongly suspect what will happen is that the Supreme Court will take this case and they’ll take it in the broadest way possible, all issues around the table, all of federal Indian law is on the table, all of the Indian Child Welfare Act is on the table—and they’ll just say, let’s hash it all out right now, once and for all. And they don’t have to do that. That’s not what the Supreme Court does. This is not the role of the judiciary. And the reason my stomach sank onto the floor was because it’s Indian law and I know they’re going to do the worst possible thing.


Rebecca Nagle, narrating: At the end of the day, whether or not ICWA stands comes down to nine people, the future of tribal sovereignty quite literally is in their hands. Now it’s just math. The Supreme Court currently has six conservative justices and three liberal justices. One of the conservative justices has often sided with tribes and one of the liberal justices voted against ICWA the last time it was in front of the court. Three of the justices are adoptive parents, including the Chief Justice. So what now? We’re still waiting on word from the Supreme Court, and the stakes are really high. There are so many people and groups involved in this sprawling lawsuit, it’s hard to keep track of. But at the end of the day, the people who will be most impacted by what happens next are Native families and Native children. Next time, on this season’s final episode of This Land.


[clip of Sandy White Hawk] We were that generation yet to come when our ancestors prayed for us. They wanted us to know who we are. They knew many of us were going to be taken far away and they prayed for us. So not, as adoptees, we’re not looking to be pitied. We’re not looking, we’re not victims. We’re your relatives who have been stolen and we made our path back.


[singing and drum music]


Rebecca Nagle: This Land is reported, written, and hosted by me, Rebecca Nagle [speaks in Cherokee] citizen of Cherokee Nation. Additional reporting this season from Maddie Stone, Martha Troian, citizen of Obishikokaang Lac Sul First Nation, and Amy Westervelt. From Crooked Media, our executive producers are Jon Favreau, Sarah Geismer, Lyra Smith, and Katie Long, with special thanks to Alison Falzetta from Critical Frequency. Our managing producer is Amy Westervelt. Our senior producer is Sarah Ventre and our story editor is Rekha Murthy. Additional editing from Martha Troian and Pauly Denetclaw, who is Dine. Sound design by Lyra Smith, Marc Bush, and Charlotte Landes. Original score composed by Jarod Tate, citizen of Chickasaw Nation. Our outro song is an honor song for adoptees, written and sung by Jerry Dearly, who is Oglala Lakota. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaten, founder of the First Amendment Project. Podcast art by Keli Gonzalez, citizen of Cherokee Nation. Jennifer Brackeen’s blog was read by voice actor Alissa Sia.


If you’re enjoying the show, please rate, review and subscribe. It helps more people find us. And please share it with your friends. If you have a tip or information to share related to our reporting, you can do that securely and anonymously through our secure drop. You can find a link in the show notes. To see a timeline of WRJ’s case and the documents we dug up, visit the show’s website.


This season of This Land touches on different forms of family, childhood, and racial trauma. If you feel like you could use support, please check our show notes or website, ThisLandPodcast dot com to find resources for adoptees and survivors of childhood trauma, abuse, foster care, and boarding schools.


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