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In a major win for tribal sovereignty, Supreme Court upholds Indian Child Welfare Act


Today, in a 7-2 vote, the Supreme Court upheld the Indian Child Welfare Act. The law gives priority to tribes when Native children are adopted. Writing for the majority, Justice Amy Coney Barrett said, quote, "the bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing." Rebecca Nagle is a member of the Cherokee Nation who hosted an investigative podcast about the case called "This Land" - good to have you back on ALL THINGS CONSIDERED.

REBECCA NAGLE: Thank you so much for having me.

SHAPIRO: Like many experts, you said before this case was decided that you thought the justices would go the other way and strike down the law. So as you read this unexpected ruling upholding the Indian Child Welfare Act, what stands out to you?

NAGLE: You know, I think that it's a win not just for Native nations and Native families but for our democracy and the rule of law. A lot of the arguments that were forwarded in this case were really radical, you know, went against foundational constitutional principles, laws that have been passed literally since the founding that have given Congress a lot of authority over Indian affairs. And so, you know, it's not great that we weren't expecting a win. But I think it's a huge victory not just for tribes but for U.S. democracy.

SHAPIRO: In addition to the majority opinion by Justice Amy Coney Barrett, you've also been calling attention to a concurring opinion that Justice Neil Gorsuch wrote. Why?

NAGLE: In his concurring opinion, Justice Neil Gorsuch spends a lot of time on history. And so for generations, the U.S. has systematically separated Native children from their families and tribes. And Justice Gorsuch spent a lot of time detailing that history and why the Indian Child Welfare Act was created in the first place. And I think it's really important for people to know that history in the context of this case because for generations, Native children have been used as the tip of the spear in broader attacks on tribal sovereignty. And for tribes, keeping our children is also about preserving and protecting our future, and I think Gorsuch really spoke to that.

SHAPIRO: Well, let's talk about those broader attacks because in your podcast, you document the way this case fits into a wider pattern. As you characterize it, special interest groups have used the Indian Child Welfare Act as a vehicle for these broader attacks on Indigenous nations. So what do you think today's decision says about that broader pattern?

NAGLE: That it was unsuccessful. You know, we have had generational moments where the U.S. government has leaned towards diminishing or getting rid of tribes entirely. We no longer live in a democracy where that is possible. But special interest groups are trying to get it done in the courts and using ICWA as sort of a vehicle or a Trojan horse to get that done. And I think the Supreme Court both saw it for what it was, saw the extremely broad implications of the arguments that they were making and rejected it.

SHAPIRO: And so its case closed on this case. Is it case closed on the broader issue, or are there other challenges coming that give you reason for concern?

NAGLE: So we know that, you know, the special interests, like the corporate law firm Gibson Dunn that is behind this case, is already trying to mount other cases to challenge the constitutionality of ICWA. We'll see with this defeat - how much effort they put into it. But it's probably not the end of the line.

SHAPIRO: You've said before that when it comes to federal courts, there's a lot of misunderstanding about how tribal sovereignty works. Does this ruling make you feel differently?

NAGLE: You know, we have been on a roller coaster with the Supreme Court the past few years. You know, we've had some very strongly worded victories. And we've had some opinions where I would say the court really went off the rails in terms of congressional statute and precedent. But I think what we have now that is different is a really strongly coordinated campaign from organizations like the Native American Rights Fund and the National Congress of American Indians that have been working on this case since it was in the federal district court. There was this really strong briefing. There was really strong arguments. And I think you also see, maybe for the first time, a plurality of justices that understand those bedrock principles of federal Indian law. So it makes it harder to get away with some of the radical arguments the plaintiffs were making.

SHAPIRO: So in just a couple sentences, can you give us a sense of what the conversation has been like today among Native people, among the folks who are watching this really closely?

NAGLE: You know, it's just a huge relief. You know, what was on the line was not just the future of tribal sovereignty but the future of our children, the well-being of our families. And so for that to be upheld by the Supreme Court today is a huge victory.

SHAPIRO: That's Rebecca Nagle. She is host of the podcast "This Land" - always good to talk to you. Thank you.

NAGLE: Thank you so much. Transcript provided by NPR, Copyright NPR.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.