Janine Jackson interviewed Crushing Colonialism’s Jen Deerinwater about efforts to overturn the Indian Child Welfare Act for the December 9, 2022, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: On November 9, the Supreme Court heard the case Haaland v. Brackeen. You might not have seen much about it; media coverage has been spotty. I will drop us into the center of it with the lead of our guest’s recent piece for Truthout.org:
Anywhere colonizers have invaded, Indigenous children have been separated from their communities. Whether through boarding or residential schools, child protective services, or outright murder, the theft of Indigenous children destroys tribal nations—which is what’s at stake in the U.S. Supreme Court case Haaland v. Brackeen.
Nominal plaintiffs in the case, Chad and Jennifer Brackeen, fostered a Native child whom they subsequently adopted, but were upset that they might not be able to as easily adopt his half-sister.
But, as with many Supreme Court cases, their story is not the story, which extends far beyond them. It requires critical, thoughtful, human rights—centered storytelling to untangle an intentionally snarled story, to explain what—and who, really—are truly at stake.
Jen Deerinwater: Hi. Thank you for having me on.
JJ: Let me ask you to begin with why ICWA, the Indian Child Welfare Act of 1978, why was it demanded and passed? What does it do?
JD: So this nonpartisan act was passed because it was found, prior to ICWA, that 25% to 35% of all Native children were being removed from their homes by state welfare and private adoption agencies. And of those, 85% of those children were being placed with non-Native families, overwhelmingly white Christian families, even when there were good homes with relatives and tribal members available.
So the point of ICWA, this nonpartisan act, is to help keep Native children with our tribal communities. As you read in the intro, a crucial part of colonization, of the genocide of Indigenous people, is taking our children. If you take away our future generations, then we cease to exist as Indigenous people and as sovereign nations, which is really a lot of what this case is about.
Even with ICWA in place—which is called the gold standard of child welfare policy, just so listeners know that—we’re still finding that Native children are still being removed at a rate of two to three times that of white children, and they’re rarely placed with relatives, and Native and tribal families, and community members.
Native families are the most likely to have children removed from their home as a first resort, and are the least likely to be offered any sort of family support interventions to help keep their children.
So that’s the importance of ICWA and where it’s coming from, and why it’s so important.
But now the way that it works, it’s also different than how one might think. So this doesn’t apply to all Native American children. It applies to Native children who are either enrolled in a federally recognized tribe, or are eligible for enrollment in a federally recognized tribe. So that’s really important, and that is something that non-Native press has often gotten wrong about this.
They have not used that distinction, which is very important, because what’s so much at the heart of this, beyond just the genocide issue, is tribal sovereignty, and the potential overturning of tribes as sovereign nations, and really trying to turn us into nothing more than a race of people. And if you say that we are just a race of people, then something like ICWA becomes illegal under race-based discrimination laws in the country.
But really, what the other side wants is the overturning of tribal sovereignty. You know, they say that this is about protecting Native children, but that’s not what it is. It’s about overturning our sovereignty, so that non-Native interests like casinos and oil and gas can take our resources. And they’re just willing to use our children as the fodder in order to do that.
JJ: As you say, the repercussions are huge, and I don’t know that folks just sort of skimming the issue would understand that this isn’t Chad and Jennifer, this is Gibson Dunn, right, the law firm.
JJ: Gibson Dunn and their clientele have a much bigger picture in mind than Chad and Jennifer, which is what you’re telling us. But if we could start at the epicenter, which you’ve started to say, what could be unleashed by the dismantling of ICWA, first of all, on Native people and Native rights. Just talk a little more about that.
JD: Yeah, so I see this as an ushering in of the Termination Era, which I wrote a bit about in my piece for Truthout.
So just as a bit of a brief background, in the 1950s, the federal government, Congress—Congress is the only one who has any legal authority over federally recognized tribes, which is also part of what’s at stake, the argument within this case.
But the Termination Era of the 1950s, the U.S. government came in and basically terminated its sovereign nation-to-nation relationship with many tribes.
The numbers that I have found vary a bit, but over 13,000 tribal members lost their recognition status. Several tribes in Oregon and California lost their status, which was also based on taking the lands in Oregon and California, and selling them off to non-Native interests.
There were also changes to criminal jurisdiction. Native people were relocated heavily to urban centers. There was a relocation program that came during this era, that the federal government came in and said, “You know what? You can get good education, jobs. We’ll get you housing, all these things if you move to cities.”
And, as they have always done to us, they broke their promises. Our people got to cities and were put in the worst neighborhoods, kept in destitution, no good jobs, no good healthcare.
But suddenly, you’re away from your Native community. You’re away from your tribe, and you’re not—it’s very interesting the way it works in this country. You know, my tribal citizenship for the Cherokee Nation of Oklahoma doesn’t end when I leave my reservation, any more than my U.S. citizenship ends if I leave the so-called U.S.
But a lot of my trust and treaty rights, they diminish, you know? I live in Washington, DC. I have a trust and treaty right for the Indian Health Services. However, there are no IHS services anywhere near where I live.
So by relocating us, even though we’re still citizens and members of sovereign nations, we still have these trust and treaty rights, it was a way of breaking up our communities, and taking away our ability to exercise these rights.
Now with this case, Haaland v. Brackeen, I really see that as ushering in another Termination Era. Quinault Nation vice president and president of the National Congress of American Indians Fawn Sharp told me in an interview that she really saw us as already being in a Termination Era, and that this case could just move it along even further.
So I sat in the Court. It was an over three-hour hearing and it was, I’m not going to lie, it was quite difficult to sit through. There was a lot of really insulting things being thrown around in there.
But one of the questions that kept coming up is tribal citizenship: Is it being a citizen of a sovereign nation, or is it simply being a race of people?
JJ: That seems to be at the core of it, yeah.
JD: Right. And what’s so infuriating, which I don’t believe I’ve ever seen this talked about in any non-Native press ever, but: You don’t have to know anything about Indian law in order to graduate from law school, to pass the bar, to serve as a judge, to serve on the Supreme Court.
And Indian law is part of constitutional law, it’s part of federal law. We have people graduating, becoming lawyers, becoming judges, that know absolutely nothing about this. And this is very scary for Native tribes, as so much of our very ability to exist goes through the Court.
So it was just really scary. The only person on the Supreme Court who has any experience with Indian case law is Justice Gorsuch. The rest of them have no experience, and it was very clear that they knew very little about us.
Even the justices that I know will rule on the side of tribes, still some of what they said, it was just so clear they don’t even understand who and what tribes are, and how it’s different than being a race.
JJ: Yeah. Maybe explain that a little bit. Maybe tell folks, it’s not the same thing.
JD: Yeah. So one, I want to say that race is a social construct. Race is something made up. Ethnicity is real. Culture is real. So I want to say that, first of all, I believe that race is just a construct in general for everyone.
But for Native people, you know, I’ll use my tribe as an example. I want to point out, Cherokee Nation is the largest federally recognized tribe in the country. We have more resources than a lot of other tribes, so not all tribal nations are in the same circumstances. I want to make that very clear.
But my tribe, for example, just passed a $3.5 billion fiscal year budget for 2023. Our principal chief—if you want to have some comparison to the U.S. system, which our U.S. federal government system was actually based on the Haudenosaunee Confederacy’s tribal system—our principal chief is our president.
Our Tribal Council is our Congress. We have a Supreme Court, we have a marshal service, we have a healthcare service. Forbes just named us one of the top 10 employers in the state of Oklahoma. We are not a race that you just check on a box.
I vote in tribal elections. I see this as, my citizenship to Cherokee Nation is no different than my rights as a citizen to the U.S.
But, I think, one, there’s a level of ignorance on the part of the justices and the lawyers, everyone, that just don’t understand what tribal sovereignty is. But I think it’s also very intentional. Matthew McGill, who argues for the Brackeen family, also argued for Energy Transfer Partners’ Dakota Access Pipeline, which was very fiercely fought by Native people from around the world.
But McGill actually said during the hearing, “Citizenship is a proxy for race.” Well, citizenship is not race. It was very frustrating.
There’s a level of ignorance, but there’s also a level of intention that it’s very clear they know what they’re doing, they know what they’re arguing, and they know how all of these cases move together. Gibson Dunn, the law firm representing the Brackeens, they actually went looking for the Brackeen family; the Brackeens didn’t go to them. They actually represent, I believe, two of the world’s largest casinos. They just filed a casino-related lawsuit in Washington state.
They know what they’re doing. They know, and the states know too.
JJ: That’s exactly it. Gibson Dunn has filed a complaint that tribal gaming is unconstitutional. They’re using the exact same argument that they’re using in Brackeen, and so we’re looking for journalists to zoom out and connect those dots. Like, why is it in their interest to abolish tribal rights, and what will ensue as a result of that?
But I wanted to talk about media in the sense that, again, coming back to tribal rights— Standing Rock and NoDAPL introduced a lot of media coverage for folks, and a lot of it was good, but I was struck by a New York Times article that was talking about the Dakota Access Pipeline, and they counterposed it, they describe the opposition as tribes who
viewed the project as a wounding intrusion onto lands where generations of their ancestors hunted bison, gathered water and were born and buried, long before treaties and fences stamped a different order onto the Plains.
To me, this is corporate media doing Native Americans as, like, a Pinterest page, but also talking about treaties as something that are just in a misty past, and certainly not a legal reality.
I just wonder what you make of media coverage in general of this set of issues.
JD: I think non-Native media coverage of pretty much all Native issues is pretty deplorable.
I feel like even when I read things written by non-Natives, and I can tell that they’re friendly to Native people, Native issues, still their ignorance comes through.
You know, not properly citing people: I was interviewed by Mother Jones a few years back, and I told them, you need to say that I’m a citizen of the Cherokee Nation of Oklahoma. If you don’t say that, it’s wrong. And they still just listed me as Cherokee. Well, that’s not accurate, you know?
But with the New York Times, for example—we’ll go with the more egregious example —the New York Times doesn’t have a single Native journalist. Not one. In fact, I believe it was in this last year, they even published what we would call a pretendian, which is a non-Native who was faking Native identity.
So they have a long history of doing really horrible things to us, but their coverage of Haaland v. Brackeen and ICWA in general—because ICWA has actually been legally challenged more times than the Affordable Care Act, so this is all very, very complex—but their coverage of it has been pretty awful.
I read the article that they wrote right before the court hearing and right after the court hearing, and there was a lot of racism in there. There was a lot of factually incomplete reporting. For example, they actually said in one of those articles that before the Supreme Court hearing, the Brackeens kept a “low profile.”
But they actually didn’t. Jennifer Brackeen had a whole blog where she talked about the entire process of stealing these Native children from their families. She also says that they knew that they weren’t legally going to be the first option for adopting a Native child as well.
New York Times didn’t talk about how the Brackeens have still been allowed to adopt at least one of these Native children. They didn’t talk about that. How can the Brackeens assert that they’ve been racially discriminated against when they still got what they wanted?
JJ: Exactly. And you know, I was frankly irked by a Times story that started off saying that the case “primarily pits the Brackeens in Texas against the U.S. Department of the Interior and five tribes.”
JJ: And then later they say, oh, well actually, a brief on the case was endorsed by 497 tribes, and they were signed by 87 members of Congress and 23 states and the District of Columbia, and the American Academy of Pediatrics and the AMA and the APA all said that ICWA helps redress physical and psychological trauma, and yet the headline is like, “families against the state.” It’s such a misrepresentation.
JD: I read that article. I remember that. When I read that, I went, “Huh, well this is off to a bad start.”
And it was either that article or another, this was also something that’s been very upsetting that I’ve seen across non-Native press on the ICWA case, is that they don’t often talk about how many of the children who are removed from their homes are not being removed because of abuse.
It’s generally a welfare issue, sometimes even poverty. Some of these people who are arguing to overturn ICWA are saying that these families that want to adopt these children have money and resources, so they’re a better fit for raising Native children than Native people are.
The New York Times didn’t mention that, but they did mention that both mothers in this Brackeen case, the Native mothers, had tested positive for methamphetamine.
So they have no problems portraying us as all being drug addicts and bad parents. But they don’t actually talk about the reality of the system, and they don’t talk about, as was pointed out by Chairman Tehassi Hill of the Oneida Tribe in Wisconsin, and that I said earlier: in data, Native families are the least likely to get any sort of family support to help them so that they can be reunified in issues of, we’ll say, drug use or other traumas.
Also the New York Times didn’t acknowledge the fact that we Natives, we are still facing genocide. We are all struggling with trauma, but there’s a reason for it, you know?
There’s just so much that was left out and that was just done so poorly. They also, when they talked about Navajo Nation, because the Navajo Nation is involved in this case, because both of the children the Brackeens are, after all, Navajo Nation, as well as one is Cherokee Nation.
But the New York Times, every time they talk about Navajo Nation tribes, they just say “the Navajo,” which is a little confusing and also a little insulting. They’re a tribe, they’re a government. They’re not showing that. They’re not actually putting forward what this story really is.
I’m not sure whether to say it’s just sloppy, poor journalism, or if it’s purposely misleading. I’m not sure which one it is.
JJ: I hear that. The way that elite media talk about tribes and tribal law makes it sound as though we’re supposed to think it’s kind of a joke. “That’s not for real! What if we want the resources that are underneath them on their land? I mean, obviously we don’t need to honor anything that existed from the beginning of this country.”
I just feel there’s an unseriousness with which elite news media address Indigenous issues.
JD: They do. Absolutely. And there’s also a reason for that, beyond the fact that we’re not employed by them. But also, even Native media has issues reporting sometimes, because of access to government.
I’ve learned from a Native journalist friend of mine, who works for an established news organization, that they’ve been denied a press pass for Congress, for hearings, because they’re owned by a tribal government.
Well, much of our Native press is owned by tribal governments, because we wouldn’t have press otherwise, but the congressional press people say that that means they’re a foreign agent, so they can’t have access to press passes for Congress, which is just wild.
So, which is it, U.S. government? Are we foreign agents? Are we sovereign nations, or are we just a race of people? Make up your mind. And the fact that this just gets left out of reporting is just maddening.
JJ: I’m going to end it right there, but just for today. We’ve been speaking with Jen Deerinwater, executive director at CrushingColonialism.org.
You can find Jen’s work there, as well as at Truthout.org and other outlets. Jen is the co-editor of Sacred and Subversive, and you can also find her work in the anthologies Disability Visibility and Two-Spirits Belong Here.
Thank you so much, Jen Deerinwater, for joining us this week on CounterSpin.
JD: Thank you for having me on.