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In a surprise 7-2 ruling Thursday, the court upheld the 1978 Indian Child Welfare Act (ICWA), which protects Native children from being removed from their tribal communities for fostering or adoption in non-Native homes. The court rejected an argument from Republican-led states and white families who argued the system is based on race. Rebecca Nagle, a Cherokee writer and award-winning journalist, has  and her podcast, , and says the far right is attacking the Indian Child Welfare Act as part of a broader conservative agenda to destabilize federal Indian law. She calls the decision 鈥渞eally encouraging,鈥� noting it is 鈥済ood not just for Native nations and families, but for the rule of law.鈥�

The following is a transcript:

AMY GOODMAN: On Thursday, the court upheld the 1978 Indian Child Welfare Act, that protects Native children from being removed from their tribal communities for fostering or adoption in non-Native homes. Tribal leaders say the law helps to preserve their families, traditions, and cultures.

In a stunning 7-to-2 ruling, Justice Amy Coney Barrett rejected an argument from Republican-led states and white families who argued the system is based on race, writing, quote, 鈥淚n sum, Congress鈥檚 power to legislate with respect to Indians is well established and broad.鈥� Justice Neil Gorsuch wrote in a concurring opinion, 鈥淭he Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties.鈥�

Many are also taking note of the final paragraph of Justice Gorsuch鈥檚 opinion. It reads, 鈥淥ften, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the tribes a place鈥攁n enduring place鈥攊n the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.

鈥淚n adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.鈥� Gorsuch concluded, 鈥淎ll of that is in keeping with the Constitution鈥檚 original design.鈥�

Meanwhile, Justices Samuel Alito and Clarence Thomas both wrote dissents, with Thomas objecting to 鈥渞egulating state-court child custody proceedings of U.S. citizens, who may never have even set foot on Indian lands, merely because the child involved happens to be an Indian.鈥�

For more on all of this, we鈥檙e joined in Oklahoma by Rebecca Nagle, a Cherokee writer and award-winning journalist, who followed this case closely in a  for The Nation headlined 鈥淭he Story of Baby O鈥攁nd the Case That Could Gut Native Sovereignty.鈥� She鈥檚 also the host of The Land . In season two, she鈥檚 been reporting on how the far right is using Native children to attack American Indian tribes and advance a conservative agenda.

Rebecca, welcome back to Democracy Now! Please, first respond to this, what shocked many Native American tribes and communities, and also tell us the story of Baby O.

REBECCA NAGLE: Thank you, Amy, so much for having me and for covering this important issue.

Really, what happened with this case is that for the past decade, special interest groups have used this law, the Indian Child Welfare Act, as a vehicle to launch a broader attack on tribes and tribal sovereignty. And so, the arguments that they invited the Supreme Court to adopt would have not only gotten rid of the Indian Child Welfare Act, but it would have really destabilized the area of law a lot of people call federal Indian law. And instead of taking that invitation, the Supreme Court responded with a very, very strong 鈥渘o.鈥�

One of the ways that these special interest groups have advanced these cases is by really misrepresenting the facts on the ground and what happened when these non-Native foster parents tried to adopt Native children. So, it鈥檚 a complicated case. There鈥檚 multiple foster parents. One of those couples is a couple named the Librettis from Nevada. When a child was placed with them through Safe Haven, within a few weeks her father was identified. It was identified that her father was a descendant of a federally recognized tribe and that she was eligible for enrollment, and the process started for her to be placed with a family member.

And the Librettis鈥� response to that was extraordinary. I mean, they wrote a letter to that child鈥檚 grandmother asking her to disenroll so that ICWA would not apply. They managed to rope social workers into their plot, who either refused to call relatives who were possible placements, or, when they made those calls, tried to talk the relatives out. And basically, Nevada social workers strong-armed the tribe into entering a settlement. And we found, you know, stories like that in all of the underlying custody cases.

And so, what really happened in this case was, rather than non-Native foster parents being able to adopt鈥攂eing prevented from adopting Native kids, for the most part, they won custody. And the people who faced the real hurdles were the Native relatives who just wanted to keep their young relatives in their family.

GOODMAN: And so, what ultimately happened to Baby O? And how did this case make it to the Supreme Court?

NAGLE: So, Baby O, like many of the other children in the underlying custody cases鈥攁ll of the children in the underlying custody cases have been adopted, and those adoptions are final. And so, Baby O was adopted by the Librettis, and that鈥檚 who she鈥檚 being raised by, despite there being several blood relatives that came forward during her case who wanted to raise her.

And that was one of the things that I was relieved to see in the Supreme Court case. You know, this case has been on stilts since it was filed in federal court. All of the underlying adoptions have been long final. And normally, when that happens, a lawsuit is over. You know, there needs to be a controversy for a lawsuit to move forward. And I think one of the things that the Supreme Court signaled in this ruling is that it is more dedicated to the rule of the law and the rule of civil procedure than the politics of this case, because one of the things that the plaintiffs invited the Supreme Court to do was to ignore those things and, instead, to make a political decision, and they rejected that, which I think is good not just for Native nations and families, but for the rule of law.

GOODMAN: So, Rebecca Nagle, can you talk about the comments of Justice Neil Gorsuch, Amy Coney Barrett鈥攖hese are some of the most conservative members of the court鈥攁nd the fact that this shocked Native Americans around the country? And also talk about why would organizations like gambling casinos be very invested in this case. When you talk about, by the way, ICWA, that鈥檚 the Indian Child Welfare Act.

NAGLE: Yeah. So, the special interest groups that have been attacking ICWA for the past decade kind of fall into three buckets. So, it鈥檚 a handful of private adoption attorneys. And if you look at the private adoption industry, they鈥檝e fought basically any regulation that would result in there being less children who are available for adoption. There are some right-wing organizations, like the Goldwater Institute. We also found a lot of money flowing into the anti-ICWA campaign from the Bradley Foundation.

And then, who鈥檚 really spearheading the effort now is a law firm called Gibson Dunn and a lawyer there named Matthew McGill. And last January, the other shoe dropped, and so they actually鈥擥ibson Dunn and Matthew McGill filed a lawsuit on behalf of a casino developer saying that tribal gaming was racial discrimination against him because he could not make as much money as the tribes. And so, they鈥檝e basically used the exact same arguments that they鈥檙e making to attack ICWA to attack tribal gaming. And so, I think the hope for them was that if they won this case, they could sort of have the follow-up case to attack tribal gaming. And fortunately, they were unsuccessful.

You know, a lot of people are surprised by Gorsuch and Barrett. I鈥檓 not. I think that if you listened to oral arguments, Barrett was really positioning herself in the middle on this case. And so, when I saw that the opinion was authored by Barrett, I had a sigh of relief with that news, and then, as I continued reading, I was鈥攜ou know, I was even more relieved.

You know, we鈥檝e had a lot of liberal justices that have sat on the bench that have not been friendly to tribal sovereignty, because I think that they don鈥檛 understand it. You know, I think Justice Ginsburg is somebody that people point to a lot. And so, you know, I think it is good for tribes to have justices that really understand the law and how that law relates to the Constitution.

I think what Gorsuch did in his concurring opinion, that we almost never see鈥攖hat we almost never see鈥攚as that he talked about the long history of the U.S. government removing Native children from their families. And the reason that that is important is that he鈥檚 talking about why ICWA is important from the perspective of Native people. And I think that often our perspectives and our stories and our histories aren鈥檛 told at venues like the Supreme Court. So to see that coming from a justice is really powerful.

GOODMAN: And so, where does this case go from here, in terms of Native American law, U.S. law?

NAGLE: Yeah. So, you know, in the past decade, ICWA has been challenged almost as many times as the Affordable Care Act. This case is the closest and the furthest they have ever gotten in their effort to overturn ICWA. And they got a very, very strong rejection from the Supreme Court. And so I think time will tell whether or not they will bring other cases. Our reporting found other cases that are still sort of in family court, that these corporate lawyers are swooping in to represent non-Native families, so they鈥檒l continue to do that.

And, you know, what鈥檚 next for the Supreme Court is yet to be seen. You know, the past few years, we鈥檝e had some great decisions, we鈥檝e had some bad decisions. It鈥檚 been a bit of a roller coaster. But I think what鈥檚 important about this case is that we鈥檙e seeing not only the Supreme Court, but, I think, the public, show more of an interest and more of a knowledge about the Constitution and tribal sovereignty and how all of these things work. I think some of our biggest barriers at the Supreme Court has been ignorance. And I think seeing that knowledge come out in this Supreme Court opinion is really encouraging.

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