3. Grandma Versus The Foster Parents

This episode is supported by the FX Original Series, Reservation Dogs. From Sterling Harjo and Taika Waititi, this first-of-its-kind Indigenous creative team tells a story that invites audiences into a surprisingly familiar and funny world, Reservation Dogs, now streaming exclusively FX on Hulu. The stories we're sharing this season touch on different kinds of trauma. Please take care of yourself while you listen. Chad and Jennifer Brackeen are the lead plaintiffs in the big federal lawsuit we're following this season. But they're not the only ones. Because of where Chad and Jennifer live, they provided the perfect venue for the case. But their lawyer still needed the perfect plaintiffs, foster parents who, unlike the Brackeens, didn't have an easy time getting around Iqwa. And he found them in Danielle and Jason Clifford. Danielle and Jason met a dance class, a salsa dance class at their church. Before they even got married, they talked about adoption. So when they found out they couldn't have children of their own, it felt like God's way of telling them to adopt. Jason is white. Danielle has Indigenous ancestry from Canada, but doesn't identify herself as Indigenous in federal court documents. They knew about private and even international adoption, but they wanted to help children in their own community. So they decided to become foster to adopt parents where they lived in Hennepin County, Minnesota. Meaning they would foster children with the hope of adopting them. At the same time, a toddler, who we'll call Piper, was growing up in Minneapolis, the biggest city in Hennepin County. Piper was close with her mom and her dad, but the person really raising her was her grandma. My name is Robin. Robin is a citizen of White Earth Nation. We're just using her first name to protect her family's privacy. When she was first born, she came and lived with me and my daughter. And what was she like as a baby? She was bubbly, sweet, and funny. She was a good little girl. I used to chase her around the kitchen into the living room and back and forth and she would laugh so hard. It was the happiest time of my life. In the spring of 2014, they were all living together. Robin, Piper, Piper's mom, and sometimes dad. Some other relatives too who needed a place to stay, but they couldn't make rent. They got evicted. Here's Robin. We've leaped out Piper's real name to protect her privacy. All of us had to leave and we didn't know where to go, what to do, anything. My daughter, she don't believe in shelters and stuff like that. I said, well, I'll go there. I don't care. This kid can't be on the street like this. So she let me have her and went down to Hennepin County and we were there half a day and comes 5.30 at night. She goes, we can't help you. I said, now you're just telling me this. I said, why? She said, you've got to prove that you're a biological grandmother. Turned away from the shelter, Robin tried to find another place to stay, but she ran out of options. So she called Piper's dad and he took Piper. They agreed once Robin found a safe place, he would bring Piper back. But that never happened. On August 7th, 2014, around 6.20 in the morning, police got a call that two people were spotted near an abandoned property in Northern Minneapolis. When they got there, they found four people in a car with drugs and drug paraphernalia. It was Piper's mom and dad, their friend, and Piper. Piper's parents went to jail and Piper went into foster care. That's when I got to call the next morning. I was going to go get her out. I was going to bring her home with me and you know, whatever it took, they wouldn't tell me anything. They wouldn't share any information with me. You know, I don't know where she was placed. And they said that I had no rights to her. I had no grandparents' rights. At the time, Piper was three years old. She spent the next three years half her life in foster care. 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, Goheen Daudon, Jollek Ayetli Kailan, 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. The federal lawsuit, Brakeen v. Holland, actually includes three foster families. All three say Iqwa violated their constitutional rights when it gave preference to a Native family over them. But here's the thing. Two of those foster families, including the Brakeens, won custody. They already adopted the Native kid, which brings up one of the biggest questions in this case, legally, should it even exist. When you sue the federal government to change a law, you have to prove two things. First, that the law harmed you. And second, that the law going away would fix that harm. For the Brakeens, whether Iqwa stays or goes, their adoption of Antonio is final. So according to the technical rules of civil procedure, they kind of don't have a case. But that's where Danielle and Jason Clifford come in. If they weren't part of this lawsuit, it's possible the whole thing would have been thrown out by now. What happened after the break? Today's episode is brought to you by FX's Reservation Dogs, the Hollywood Reporter called the first season of the original comedy, a distinctive wonderfully cast triumph of representation and ranked it the number one best TV show of 2021. This season, Reservation Dogs continues to follow our favorite gang of indigenous teens in rural Oklahoma with each of them trying to forge their own path in hopes of one day making it to California. FX's Reservation Dogs is now streaming, only on Hulu. 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That is how I know on August 7, 2014, Piper entered foster care. And five days later, her grandma sat down with Piper's social worker. It was this woman's job to find a relative Piper could stay with. Placing kids with relatives or other adults they know is widely considered a best practice in foster care. It's actually the law in Minnesota because it's less traumatic and disorienting than being placed with strangers. And kids who stay with relatives are less likely to experience abuse or neglect while they're in the system. Robin wanted to be that relative for Piper. Less than a week after meeting with Robin, that social worker called her back. She goes, you don't qualify for it. I said, what do you mean I don't qualify for it? She goes, it's your record. Robin had a string of old convictions, mostly misdemeanors, and a decade old child protective services or CPS report from when her daughter was a teen. In Minnesota, family members with old criminal convictions can still get licensed. It takes an extra step. But that social worker made no attempt to do that for Robin. She didn't even let Robin know it was an option. And here's the most important detail about what happened to Robin. Her license was never revoked or denied because she was discouraged from even applying. My daughter, she even had people that were willing to take good people, people in her family. They said that they would help out. My sister said she would help out, but they came and they turned down everybody. Hennepin County turned down Robin's sister, Robin's roommate, family, friends, and other relatives. The county told Piper's grandfather he wasn't close enough with his granddaughter to be considered. I know at times, for me, I felt like giving up. But something inside me told me not to. It was just like my job in life to get her back home. Iqwa doesn't apply to every child with Native ancestry. It only applies to children who are enrolled in a tribe or eligible to enroll. Child welfare agencies are supposed to provide information to the tribe, and the tribe decides whether or not the case falls under Iqwa. Early on, Hennepin County wrote to Robin's tribe to ask if Piper qualified. White Earth Nation wrote back and said no. But Hennepin County left out a really important detail, a detail that later would change everything. We'll get to that. But for now, what's important to know is the system making decisions for Piper is not Iqwa, it's foster care. To understand how foster care works, I called up Anita Feinde. She is also a citizen of White Earth Nation and works at Casey Family Programs, a nonprofit working to improve and ultimately prevent the need for foster care nationwide. There are large racial disproportionality for children of color in general in the child welfare system. Nationally, the kids who are most likely to end up in foster care are Black and Native. Piper is both. Native American children have a much higher incidence of removal of actually opening a case and removing the children. In Hennepin County, Native kids are nearly 35 times more likely than white kids to be removed from their homes. It's not because there's a higher rate of abuse, there's a higher rate of poverty. You might be thinking, how is that possible that a child is removed just because their family is poor? When I started reporting on foster care, it shocked me. The majority of children who are removed from the care of their parents are removed for neglect, not abuse based on neglect. And I think to a lot of people, poverty, especially extreme poverty, looks like neglect. In six states, over half of Native kids will be the subject of a CPS investigation. Imagine being that Native parent. Odds are, CPS has knocked on your door or the door of someone you know. I have seen children removed from their homes because there was no food. Rather than spend $100 and buy food for that family, we'll spend thousands of dollars paying for that child to live with strangers. Since the 1970s, when Iqwa was passed, the number of Native kids in foster care has gone up, not down. In Minnesota, one third of Native children will enter foster care before their 18th birthday. It's the same statistic that shocked and horrified Congress when they passed the Indian Child Welfare Act. And so, like Native children a generation before, Piper became a statistic. In the summer of 2016, Piper had been in foster care for two years. She had been in and out of multiple homes. For a brief period, she was reunited with her mom, but then her mom relapsed, and the county terminated the rights of both parents. After rejecting a list of relatives, one because he didn't know his granddaughter well enough, Piper's social worker sat down with Danielle and Jason Clifford. She wanted to make sure they were ready to adopt Piper. Here is how Danielle described that meeting in court, read by an actor. They wanted Piper to not have another move. She had been in her shelter home for almost six months, and they wanted her to be able to make her final move into her forever home. So they were asking us, like outright in that first meeting in our home, like, are you willing to be a forever resource for this child? The Cliffords told that social worker, yes, they were interested in adoption, and so Piper moved in with them. So we were told that there had been an extensive relative search, and we were told that there was a maternal grandmother who wanted Piper, but that she wasn't an option for many reasons. When we reached out to the Cliffords for comment, Danielle said they couldn't talk to us for legal reasons. Early on in the custody dispute, the Cliffords made a Facebook post that raised concerns about Piper's privacy, and a judge placed them under a gag order. The whole time Piper had been in foster care, Robin had tried to maintain a relationship with her granddaughter. But now the county said that relationship should be cut off, and the Cliffords agreed. They all said Robin had bad boundaries. Robin's biggest offense was giving Piper a card from her mom, who Piper wasn't supposed to have contact with. She didn't have no physical contact, you know? I thought, oh, that's so cute, you know? She'll probably, you know, be happy that she got something from her mom, you know? And I had no idea. Nobody told me that no cards were to be sent, you know? But the card made everyone concerned about Robin and her bad boundaries. The Cliffords argued it was in Piper's best interest not to see her grandmother. And for almost a year, she didn't. In Minnesota, when they terminate parental rights, it's as if the whole biological family is deceased. They cut off visitation with aunts and uncles and grandparents. You don't even have a right to see your brothers and sisters anymore. But the social workers and the Cliffords didn't want Piper to forget her family. So they put together a photo book of Piper's relatives. She could see it any time she asked. One night, at bedtime, it came up. Here's a journal entry Danielle submitted to the court read by an actor. After the prayer, Piper responded with crying, saying she misses her parents and is having hard time remembering them. Jason acknowledged her pain and loss and said they could look at pictures of her parents tomorrow. Meanwhile, Robin hadn't given up. The same month Piper went to live with the Cliffords, Robin walked into a nonprofit serving native families on the north side of town. I kept going. And then I went into Upper Midwest on Broadway. My world changed when I walked through them doors. They said that they could help me. And they did. And Gertrude, she didn't stop until we got to help. And I thank her. Yep, I almost lost. I was really close to it. The Upper Midwest American Indian Center did two things Hennepin County hadn't. First, they helped Robin apply for a foster license. Robin's old convictions had already been expunged. But because of a clerical error, one still popped up. Upper Midwest made a few phone calls, ironed it out. And once all the paperwork got turned in, Robin was approved. And second, they shared that important detail with Robin's tribe. The detail was Robin. That form letter Hennepin County sent to White Earth didn't mention that a White Earth citizen was seeking custody of her grandchild. That wasn't illegal on Hennepin County's part. They just did the bare minimum. Once White Earth learned that one of their citizens was fighting to keep her grandchild, they intervened. And that's when everything changed. That's because now Piper's case was an Iqwa case. Oh, it was great. It was the best thing that ever happened. New social workers were assigned to the case. Social workers trained in Iqwa. And suddenly, the same county that had been fighting Robin for years started supporting her. White Earth Nation, Hennepin County and Robin all agreed that Robin should adopt Piper. But Danielle and Jason Clifford did not. They sued Hennepin County. And Robin's adoption of Piper was put on hold. I know she was with the Cliffords. They had her for a year and a half. And they were fighting the Iqwa law. And they wouldn't stop. And the fight got ugly more after the break. This episode of This Land is sponsored by NordVPN, providers of the highest quality encryption for your internet traffic while hiding your IP and physical location. With over 5,400 servers in 59 countries, it's easy to get better internet speed and protection with one click. And it's available on every major platform, including Windows, iOS, Android, and Linux. One NordVPN account enables six simultaneous connections on different devices, so you can get protection for your whole family. 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Take a short quiz on Smalls.com/thisland to customize your sampler and use code "THISLAND" for a total of 30% off your first order. That's Smalls.com/thisland code "THISLAND". When the case finally went to trial, it was an emotional five days. Reading through the testimony, it feels like a custody dispute between divorced parents. And that thing that always happens in conflict happened here. Details that normally would be small get magnified. Like the fact that Robin's car was in the shop, or that she had arthritis. How could she possibly keep up with an active child? But the detail that came up over and over was Piper's weight. At the time, Piper was seven. The Cliffords thought since she moved back in with her grandma, she looked heavier. Here's Jason Clifford's testimony, also read by an actor. She was excited to see us. It was shocking to see how much weight she had already gained in a short period of time. In her dance leotard, it was very clear. Jason was describing seeing Piper for the first time in six months at her dance recital. Piper's weight was one reason why the Clifford said they were a better home, because unlike Robin, they managed it. We provided information to miss about diet and the reasons why it was important, and it was not followed. We now can visually see that it was not followed. When Robin testified, she was asked about Piper's weight. She talked about Piper's recent checkup. The doctor said she was a healthy kid. When Family Court ruled on Piper's case, she had lived with her grandmother for four of the seven years of her life. She had lived with the Cliffords for 18 months. But the Cliffords and their lawyers argued, and are still arguing, the Cliffords are the only stable home Piper has ever known. The Family Court judge did not agree. She ruled in Robin's favor. Robin won. At the end of her 23-page decision, Judge Angela Wilms wrote that if White Earth had come forward sooner, or if the department had seriously considered Robin as a placement, none of this would have happened. But instead, Piper has "been traumatized by our system due to numerous failed placements," and that Robin has "been equally traumatized by the same system that for years ignored her as a placement option for her granddaughter." And the Cliffords have lost a child whom they loved and considered their own. The Cliffords appealed that decision all the way to the Minnesota State Supreme Court, but it didn't work. Finally, about a year ago last June, Robin adopted Piper. We made a drum. She's going to go get it. She wants to show you. She's starting to speak Ojibwe language. I got words up on the wall there. I wrote them down for her and we'll say them together. Did you find your drum? Our drum? I thought it was on the wall. Oh yeah, it's on the wall. So in this giant handle right here in the back, we put a rock in there and this drum is made of deer skin. Well, she was making it and I went to her and helped her finish it. And we left it there to dry and it has both of our names on it. In Robin's apartment, the pictures of Piper's family aren't in the special book. She can see when she asks. They're like pictures in most family homes. They're up on the wall. And who's this? This is a baby. No, it's not. Oh wait, no, that's that's mommy as a baby. Oh, that's right. That's my daughter. This is me as a baby. That's me as a baby with my mom. That's my mom. Me as a baby. It's me. Wait, who's that? It's you. Oh, it looks nothing like me, but okay. This grandma, it's us again. That's my mom. That's us again. I swear I pray every day that I can live long enough to keep going for her. I want her to be successful because she's so smart down the road. If she wants to go to school, she can go to college and become somebody. Yeah. That's what my prayers are for her. We can get caught up in whether the Cliffords or Robin are the better home for Piper, but that's missing the point. Robin and the Cliffords are not divorced parents. Robin is Piper's grandmother and has been her primary caregiver for most of her life. And the Cliffords were Piper's foster parents. And despite all the inappropriate promises made to them, fostering a child by definition is temporary. In 2020, the Cliffords did adopt a child. Two, actually, twin boys from Columbia, but they're still in federal court fighting Equa because they say not being able to adopt Piper violated their constitutional rights. In the big federal lawsuit, the one the Breckings started and the Cliffords joined, the courts got some of their facts wrong. In early court filings, the Cliffords claimed that Hennepin County revoked Robin's foster license, but that never happened. The Cliffords also implied that Robin was waiting to adopt Piper, leaving Piper in Limbo, but Robin's adoption of Piper was put on hold because the Cliffords sued Hennepin County. We wanted to ask Danielle and Jason Clifford directly why they appear to have submitted wrong and misleading information to federal court. But because of that gag order, they couldn't talk to us. Danielle did put her dad on the phone, who she said was very familiar with the case. He told us that we shouldn't trust what we read in court documents because those court documents may have been altered. The factual errors that first appeared in documents submitted by the Cliffords got repeated and exaggerated when that Texas judge we talked about last episode declared ICWA unconstitutional. And by the time the case got to an appeals court, whole chunks of the decision were based on information that was just wrong, including that big question of whether or not this lawsuit should exist. That's what's so weird about this case. The whole strategy is telling these stories, how ICWA ripped Native children from the only homes they have ever known. But in federal court, those stories have drifted further and further from the truth. When I look at Piper's case, it doesn't tell the story of why we should get rid of ICWA. To me, it shows why ICWA is still needed because the system is still biased against Native families, especially Native families who are poor. What happened to Piper while she was in foster care was traumatic and wrong. She spent years bouncing between homes without stability. But during those years, her case didn't fall under ICWA. It fell under Hennepin County foster care. At the same time Piper was stuck in the system, Hennepin County got sued for a foster care system that was "underfunded, erratic, and negligent." Over 80% of Hennepin County foster kids spent more than two years in the system without a permanent home. So Piper's story isn't an outlier, it was the norm. In Texas foster care, where Antonio's case took place is even worse. Federal courts found physical and sexual abuse of foster children in Texas was common. Texas had no system for tracking child-on-child abuse. So older children, with the history of committing sexual abuse, were being placed in the same homes and even the same bedrooms as younger children. Children in foster care are experiencing unspeakable harm, but abuse, neglect, or even the sheer lack of resources aren't what these plaintiffs decided to focus on. Instead, they focused on the idea that ICWA makes it harder for non-native foster parents to adopt Native kids. To see if ICWA was harming Native kids, I got data from Hennepin County. They gave me a spreadsheet showing what's happened to foster kids who fall under ICWA and those who don't for the past three years. It turns out ICWA kids are less likely to be stuck in the system until they turn 18, and they are far more likely to be adopted by a relative. And across the board, child welfare experts say that kids do better with relatives, which is why they widely agree ICWA is a great law. But there's another group of people who don't like ICWA, adoption attorneys. They've been fighting ICWA longer than anyone else. They don't like any laws that regulate adoption really, because they want more children to be available for adoption, not less. Next time on This Land. There are more people looking to adopt than there are children. There's clearly a supply and demand problem. Do you meet a lot of people who were adopted out after the passage of ICWA? Oh yeah, there's a shitload of people who are adopted. It's still happening. Shoot, who knows how many today? Just today. We're a commodity today. This land is reported, written and hosted by me. Rebekah Nagle, Goheen Daudon, Chaleka Yatleike La, citizen of Cherokee Nation. Additional reporting this season from Maddie Stone, Martha Troyen, citizen of Obee, Shikakong, Laxul First Nation, and Amy Westerbilt. From Cricut Media, our executive producers are John Favreau, Sarah Geismar, Lyra Smith, and Katie Long, with special thanks to Allison Falzetta. From Critical Frequency, our managing producer is Amy Westerbilt. Our senior producer is Sarah Ventry, and our story editor is Rebekah Murthy. Additional editing from Martha Troyen and Polly Denetteclaw, who is Denette. Sound design by Lyra Smith, Mark Bush, and Charlotte Landis. Original score composed by Jared Tate, citizen of Chickasaw Nation. Our outro song is an honor song for adoptees, written and sung by Jerry Deerley, who is Oglala Lakota. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton, founder of the First Amendment Project. Podcast art by Kelly Gonzalez, citizen of Cherokee Nation. Additional reporting from producer Allison Herrera, who is whole-loan selenin. Additional thanks for this episode to Judge Bruce Manning, Shayna King, citizen of Mandan, Hadatsa, and Arikarat Nation, and Justice Ann McKeeke, descendant of White Earth Nation. Jason Clifford's testimony was read by Dan Schwartz. 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. 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.com, to find resources for adoptees and survivors of childhood trauma, abuse, foster care, and boarding schools.