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Right-Wing Attacks on Native Child Welfare Law Should Frighten Us All

The right’s attacks on the Indian Child Welfare Act are part of a larger power grab.

Part of the Series

The Indian Child Welfare Act (ICWA) has been challenged more times in the past decade than the Affordable Care Act. In this episode of “Movement Memos,” Native journalists Kelly Hayes and Rebecca Nagle talk about the right-wing plot to bring down a child welfare law and why the fundamental rights of Native people, the fate of tribal lands and “the very shape of what passes for democracy” in the U.S. are at stake.

Music by Son Monarcas and Nihoni


Note: This a rush transcript and has been lightly edited for clarity. Copy may not be in its final form.

Kelly Hayes: Welcome to “Movement Memos,” a Truthout podcast about things you should know if you want to change the world. I’m your host, writer and organizer, Kelly Hayes. It is Native American Heritage month and today we are talking about attacks on Native families and sovereignty, and how those attacks figure into a larger bid for right-wing domination. That means we are talking about the Indian Child Welfare Act — a law that was created to protect Native children from state-sanctioned kidnappings — and the conservative plot to unravel those protections. As a Native person whose father was removed from our reservation as an infant, before ICWA went into effect, this is a tough subject for me, so I am really grateful to Rebecca Nagle, who you’ll be hearing from in a bit, for offering a lot of essential history and insight for this episode. Rebecca is a Cherokee writer and advocate, and she’s also the host of an award-winning podcast called This Land, a show that does an amazing job of highlighting the human cost of the war on ICWA, while also breaking down why a terrifying spectrum of forces on the right are determined to destroy a Native-specific child welfare law.

We’re going to talk a bit about the right-wing alignment against the Indian Child Welfare Act and the money that powers it, and why the bigger picture here should scare the hell out of everyone. We’re not going to be delving into the personal stories of families involved in ICWA-related custody cases. But I highly recommend checking out Rebecca’s podcast This Land to get a better understanding of those stories, because what’s happening to Native children is at the heart of this story. Today, we are going to talk about the historical context and political ramifications of the legal struggle over ICWA, and about showing up for Native people in struggle. We’ll also be talking about some traumatic subjects, including residential school deaths, child abuse and genocide, so as Rebecca would say, please take care of yourselves while you listen.

In recent months, thousands of unmarked graves have been discovered at Canadian boarding schools where First Nations children were once held. In the United States, Interior Secretary Deb Haaland responded to the news in Canada by announcing that the U.S. government would finally cooperate with Native communities to determine the locations of shuttered boarding schools and where Native children who died in those facilities might be buried. In an op-ed for the Washington Post, Haaland, who is the first Native American cabinet secretary in the U.S., shared that her own maternal grandparents were stolen from their families at the age of eight, and that her great-grandfather was taken to the Carlisle Indian School in Pennsylvania. Haaland wrote that, “The purpose of Indian boarding schools was to culturally assimilate Indigenous children by forcibly relocating them from their families and communities to distant residential facilities where their American Indian, Alaska Native and Native Hawaiian identities, languages and beliefs were to be forcibly suppressed.” Haaland promised that her department’s Federal Indian Boarding School Initiative would serve as “an investigation about the loss of human life and the lasting consequences of residential Indian boarding schools.”

Revisiting these histories of kidnapping, incarceration and death has been painful for First Nations and Native communities. Among non-Native people, we’ve seen a greater recognition of the fact that boarding schools were instruments of atrocity. But I found it noticeable that, for a lot of people, those children’s deaths were part of a narrative fixed in time, somewhere far behind us — an old story in need of closure. When, in reality, those children’s deaths were part of an ongoing project that we are all still experiencing. Settler colonialism has shape shifted and reconfigured itself over time, but it has always been a destroyer of worlds, and it has now grown into a system with unprecedented world-ending potential, so I think this is a time to ask questions and make connections.

So I’m going to go on a bit of a historical rant, because we can’t talk about the Indian Child Welfare Act without talking about cultural genocide and the institutionalization of Native genocide. The Department of Interior’s 1883 Code of Indian Offenses — which were laws that only applied to Native people — punished Native people with starvation or incarceration for engaging in Native cultural practices. Native dances, ceremonies and traditional feasts were criminalized. That code wasn’t amended for 50 years, and Native people did not have guaranteed religious freedom under the law until 1978.

When open warfare between Native people and colonists ended, and colonial massacres fell out of fashion legally in the U.S., anti-Native violence became increasingly institutionalized. The government was bound by treaty to provide Native people with healthcare, and the resulting healthcare apparatus, the Indian Health Service, was weaponized to sterilize Native people. Twenty-five to 42 percent of Native people in the U.S. who were physically capable of giving birth were sterilized during the 1970s. In Canada, Indigenous women have reported coerced sterilization as recently as 2017. But sterilization was just one method of driving down the populations of Indigenous communities. During the late 1800s and the first half of the twentieth century, Indigenous children were removed from their homes en masse, in both the U.S. and Canada, for assimilationist purposes. Many were forced into boarding schools and many others were placed with white families.

In the U.S., in the 1950s, Congress began passing laws that aimed to terminate the sovereign legal status of tribes, putting Native people and their resources under the power of states positioned to absorb and sell their land. Some terminated tribes were ultimately re-recognized, and some tribes managed to fight off termination in the courts, but termination, as the objective, was the posture of U.S. policy in the U.S. for decades, and the goals of termination were clear: to obliterate the sovereign legal status of Native people and any shared relationships to our land, culture or history that hadn’t been destroyed yet by colonialism. This institutionalized genocide was more socially presentable than outright extermination, and could even be framed as humanitarian.

U.S. Army officer Richard Henry Pratt, who founded the Carlisle boarding school stated in 1892, “A great general has said that the only good Indian is a dead one. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him and save the man.” The Bureau of Indian Affairs would subsequently model an estimated 366 boarding schools after Carlisle, and for over 150 years, hundreds of thousands of Native children would be kidnapped and abused in those facilities. Tens of thousands of those children died. Until recently, the federal government has been unwilling to discuss how many schools existed or verify how many children died. Even now, we don’t have finite answers.

Prior to the enactment of ICWA, in 1978, 25 to 35 percent of Native children were being removed from Native homes in the U.S. and placed in boarding schools or with predominantly white families. After the passage of ICWA, courts and private agencies were legally required to pursue reunification or familial placement for Native children, and to consult with tribes when making custodial determinations about Native children in the foster care system. Even with the protections ICWA ostensibly provides, Native families still experience high rates of family separation due to disproportionate rates of incarceration, and a social work system that punishes Native families for experiencing abject poverty. But under ICWA, Native people have a legal basis to challenge the systematic theft of Native children.

Now, it appears a right-wing Supreme Court will decide whether or not those protections will endure, and while most people don’t pay attention to the particulars of federal Indian Law, or what happens to Native people, everyone in the United States has a pretty terrifying stake in this struggle. Rebecca Nagle tells that story of overlapping agendas and a multi-million dollar assault on a child welfare law in her award-winning podcast This Land, and I have to say, about halfway through season two of This Land, it became my favorite podcast. The show’s investigative team, and Rebecca’s narration and reporting are outstanding, and the story is so essential, and yet largely ignored. Because people in the U.S. have been conditioned to ignore Native struggle unless they can refer to it in the past tense — as if to establish their own moral character, by grieving over our history, rather than showing solidarity in ways that could impact our lives in the present.

As a fan of This Land, and as a Native journalist myself, I was curious about Rebecca Nagle’s journey, as a Cherokee woman, covering the fight to save ICWA, and relentlessly following the money, in order to expose a larger conservative power grab. She said that for her, the journey began with a question.

Rebecca Nagle: I wanted to report this story because the Indian Child Welfare Act has been challenged more times in the past decade than the Affordable Care Act. And there’s a concerted, and coordinated campaign to strike this law down. And my big question was why? Why is a 40-year-old law that was created to prevent the systematic family separation in Native communities that was happening in the fifties and sixties, and really for generations before that, if you look at us history, how did this law suddenly become a controversy? And that investigation took me to a lot of unexpected places. And for people who’ve never heard of the Indian Child Welfare Act, or ICWA, just a quick primer, it was passed in Congress in 1978. And it came after a big national survey that 25 to 35 percent of all Native children had been removed from their families and tribes.

And that’s just a staggering statistic to think about. You talk to elders from that area and people talk about there were communities, Native communities where literally, there were no children, the removal rates were so high, and a couple things were going on. The Bureau of Indian Affairs, which is a government agency, was running this program called the Federal Indian Adoption Project, where they were literally partnering with the Child Welfare League to place Native kids in white homes under the extremely racist thinking that Native kids were just inherently and automatically better off there. And then there was something else going on, which was that child welfare agencies, and social workers at the time, had a lot of bias against Indigenous families, and so they would see a kid being raised by an auntie, or a grandma and say, “Well, since this child isn’t being raise either biological parents, it’s child abandonment,” and take the child.

And so ICWA, it’s a complicated law. It does a lot of different things. It doesn’t do just one thing, but I think of it as sort of a set of guardrails that when a native kid and that kid… Native means that child is either enrolled in a federally recognized tribe or eligible for enrollment in a federally recognized tribe. If that child is going through the child welfare system, or a private adoption proceeding, it’s like a set of guardrails to make sure that that child stays connected, first to their family, second to their tribe and third to their Native identity.

KH: It’s important to understand that depicting an entire race, community or group of people as being incapable of caring for their own children is a political tactic that provides cover for oppression, while also absolving the state of its role in the conditions that impact a child’s quality of life. Because how can people who can’t be trusted to make decisions for their own children be trusted to make decisions for themselves as a people? And if parents are dysfunctional, how can we blame the state for the hardships of their children? In Killing the Black Body, Dorothy Roberts wrote that blaming Black mothers “is a way of subjugating the Black race as a whole.” In her 2002 book, Shattered Bonds: The Color Of Child Welfare, Roberts noted that “nonwhite children [in the foster system in Tennessee] had a 42 percent lower probability of leaving state custody in three years, after controlling for all other factors, including behavioral problems, family characteristics, and services.” The experiences of Black parents and children make clear that the family regulation system serves as an arm of surveillance and social control for the carceral state. And as with all areas of criminalization, a different set of standards exists for people with money. As Roberts wrote, “The main reason child protection services deal primarily with poor families is because of the way child maltreatment is defined. The child welfare system is designed to detect and punish neglect on the part of poor parents and to ignore most middle-class and wealthy parents’ failings.” So it’s important that we understand that the system is not fundamentally one that looks out for children, but gets weaponized against Native families. The family regulation system is fundamentally violent and always has been.

And I know and understand all of that, and yet, I still get choked up when I think about the level of terror that was imposed on Native families during the pre-ICWA days of child removal. Native people couldn’t leave their children to play unattended in their yards without worrying that a social worker might show up and kidnap them. People who didn’t hide their children quickly enough when social workers appeared were forced to watch as their children were taken. Parents who resisted faced incarceration and further threats that they would never see their children again. Something a lot of people miss when discussing these histories is the social control embedded in these dynamics.

Native people have long histories of resistance to settler colonialism. Some parents, whose children were taken from them, formed encampments near their schools to be close to their children and demand their return, but many families cooperated with the federal government, in every way that they could, because that government was holding their children hostage. Much like Trump’s family separations at the border, the separation of Native children from their parents, which sometimes involved the use of tiny shackles, was meant to have a chilling effect on parents and communities. The U.S. government held entire generations of Native children hostage, and as recent events have reinforced, it had no compunction about killing them.

RN: I think during the boarding school era, Pratt, this general within the army who kind of conceived of the idea of boarding schools, he wrote in his own writings, he talked about Native children that were supposedly being educated at these horrific institutions as hostages. Basically as bargaining chips for what he called the good behavior of their people. And I think that that is something that we see throughout U.S. history that over and over: Native children are used as the tip of the spear in the project of colonization and genocide. And so it happened during the boarding school era. It happened during the Indian Adoption Project era, and I would argue it’s happening now that certain players are literally using Native children and using custody battles over Native toddlers, and using this broader battleground of ICWA to strike at other big issues in federal Indian law, and big issues of tribal sovereignty and Native rights. And so when you look at the history of how Native kids have been used, we haven’t moved past that. And I think something that’s hard to talk about in Native communities is how our families are still being treated within the foster care system.

So, there are huge racial disparities within foster care, specifically, for Native families and for Black families. And so a look at one place in Minnesota, Native kids have a one in three chance of entering foster care before they turn 18. Native babies have a one in 10 chance of entering foster care before their first birthday. Nationally, the average for white babies is one in a hundred. And you see those racial disparities at every level from who is getting reported to CPS [Child Protective Services] who is getting investigated by CPS. Once an investigation is happening, what children are being removed and people can say, “Oh, well, they’re just must be more dysfunction or more abuse within Native communities.” But I think a really other important statistic is that white kids are actually more likely, when you look at the cause for removal, white children are more likely to be removed for physical, and sexual abuse, and Native kids are more likely to be removed for this catch-all category called neglect.

And poverty, especially extreme poverty, can look like neglect to a lot of people. I talked to a parent advocate who works with Native families in Minneapolis, and she was saying that the overwhelming majority of the families that she’s working with whose kids are in the system who’ve gotten caught up in the system are homeless. And they’re getting doxed for things like their kids not getting to school, and so it’s called educational neglect. And of course we want every parent to make sure that their child is getting to school, but when you are homeless there are other problems at play. And one of the children that we talk about in the series had been raised by her grandmother, both of her biological parents struggled with a substance abuse disorder, but she had a stable caregiver with her grandmother. And then her family entered into this crisis when they became homeless. And that’s the moment that she kind of got swept up into foster care, and then actually spent three years in foster care while her grandmother was fighting to get her back.

And if all of those supports had been in place that never had to have happened to that child. And so I think it’s that continuum of removal is still present in the foster care system today. And it bears out in the statistics and then it also bears out when you go and you talk to these Native families and just talk about the way that they were treated. One of the moms I talked to for the series, she did everything in her case plan. She had marked every box, done everything, gotten sober, done counseling, done everything. And her social worker told her point blank, “You will never get your children back. I’m not going to help you get your children back.” And so those are the experiences of Native families who are in the system today. That’s not what’s happening in the 50 in the sixties, that’s what’s happening in 2021.

KH: Lawsuits brought by white people who are challenging ICWA because they want to adopt Native children invoke many of the themes that have historically driven child removal in the U.S. Conditions imposed upon Native people by settler colonialism are cited as evidence that Native parents are unfit to raise their children. Classism and even fatphobia are invoked in cases where wealthy white people depict themselves as saviors, rescuing Native children from unhealthy, backward lives.

RN: The types of reasons the foster parents give for why their better homes are things like that their home is bigger and that literally they will argue things like that they have more money and more financial stability that they can provide more opportunities. In one of the cases, the Cliffords tried to make an argument that they had done a better job of managing, at the time, I think she was seven, a child’s weight and diet and exercise, than her grandmother had. And so all of that subtext of favoring white families and middle class families, and really in these instances, upper middle class families is all there when you go down to the underlying custody disputes.

KH: One of the reasons I find This Land to be so important is that Rebecca’s podcast really maps out the overlapping interests that have aligned to bring down ICWA, and why they’ve come together to destroy this law. The first and most obvious players are white adoptive parents, who feel ICWA unfairly restricts their ability to adopt Native children, and the multi-billion dollar industry that wants to provide them with those children — for a price.

RN: The opposition to ICWA kind of falls into three main buckets. There’s the private adoption industry, which is really led by a couple private adoption attorneys. There’s corporate lawyers and then the last bucket is a universe of right-wing funders and organizations. So starting with the private adoption industry, some big national organizations that represent the private adoption industry, including the National Council for Adoption and the American Academy of Adoption Attorneys have come out very publicly and very strongly against ICWA, and have actually been part of these cases to try and strike ICWA down. And if you look at the private adoption industry, I mean, in general, they don’t like regulation, and they tend to fight regulation that limits the number of children that are available for adoption. And so this is a really hard conversation to have about adoption because we think of adoption as there are children in need and adoption is this altruistic thing that helps a child in need, and the need, the scale of need and the balance of need in the United States right now is actually the opposite.

There are more people who want to adopt children, and specifically when you talk about infants than there are children to adopt, and that’s for a couple reasons, one is that access to abortion, and reproductive freedom, and birth control, and even just, it being more socially acceptable for women who aren’t married to have a kid really kind of tanked the number of babies that were available for adoption. And so what the adoption industry did is that they went actually internationally, so they went to other countries and one by one, those countries, because of coercive and abusive practices, because of bribery and then some actually like high profile murders of adopted children, those countries like Guatemala, and Ethiopia, and South Korea actually closed their borders to U.S. families. And you see, in the 2000s, the number of children available to American families just fell off this cliff.

And people called it that, I mean, some of the big adoption agencies and lobbying organizations for the adoption industry actually had to shutter their doors, because there wasn’t enough business. And what started to happen was a trend that I would argue… it’s about a decade old and you really see the numbers sort of going up in the mid 2010s, but they’ve been trending that way for a while, is that these same agencies are now turning to foster care. And so there are private adoption agencies whose goal is to find adoptable children for clients who are paying for that service, who are licensing their clients to be foster parents, and are telling them that foster care is a pathway to adoption. So, every plaintiff in this case, all of these non-Native foster families were using what’s called “foster to adopt.” And so they were using the foster care system not to have a child for six months, and then another child for a year, and then another child for another three months, and to be kind of that know stop gap, that support, that resource for a child in a family in crisis — they were really explicitly fostering to adopt. And so I think that that’s a huge trend and a huge problem. And I think the other thing that we’re really, really uncomfortable talking about with adoption is the race and class dynamic. So the majority of children who are adopted in the United States are children of color. And the overwhelming majority of people who are adopting, about 75 percent, are white. And then there’s also huge class differences. And so really we have a system where families of color and families who are poorer, their children are being adopted by families that have more wealth and who are mostly white. And so that’s just the dynamics of domestic adoption. And the other thing is that adopting from foster care is a different system, but a private adoption where you go through an agency is about $50,000 to $60,000.

So, it’s extremely expensive, which excludes who can do it, but it also is how private adoption attorneys make money. And so what we found, and I think there was… I talked to adoption attorneys. I talked to people who ran adoption agencies. I talked to people who ran adoption agencies who thought that those dynamics were fine. I talked to people who are really conscientious about those dynamics, and one of the terms that I heard over and over again, that I think really helps explain the adoption industry in the United States, was this term that people called a “gray market,” where it’s not like children are being bought and sold on a black market, but if there are loopholes in the law, which there are a lot because adoption law is state by state, adoption attorneys will use those loopholes to help their client get what they want, which is an adoptable child, an infant.

And so, yeah, and we found a specific case of a lawyer who sort of came up with this very elaborate legal reasoning that doesn’t have any court decisions to back it up, but that tribes don’t need to be notified in private adoption. So he was adopting all of these, or we found one case where he adopted a Native child out of Arizona without ever notifying the tribe. And so I think that there’s…. So that’s one leg of what’s going on with the private adoption industry. And I would just say that I think we need to have a conversation nationally about the dynamics of adoption and also really about the shift to “foster to adopt.” In international adoption, the difference in money and power that American families had when they went into developing nations, created huge systems of abuse, and for us to think that that dynamic isn’t going to happen where the families that are in the child welfare system are disproportionately poor, disproportionately families of color, and here you have families that have more resources.

For us to not think that some of those same abuses aren’t going to happen, I think is simply naive based on what we’ve already seen the adoption industry do internationally. And so I think it raises some big ethical issues. And yeah, I don’t know. I’ll pause there. I don’t know if I’m speaking too much. I can talk about this stuff forever. Yeah, absolutely.

KH: To Native people, the lives and welfare of Native children are at the heart of this struggle. But there is more at stake in the fight to dismantle ICWA than a single law, or even the fates of Native children and families who are currently caught up in the system. Because the legal argument that white adoptive parents are making to unravel ICWA could ultimately unravel Indian Law as we know it in the U.S., putting the rights of all Native people and our tribal nations in jeopardy.

RN: And so the plaintiffs in this big federal lawsuit, Brackeen v. Haaland, are making a very, very, very specific legal argument. They’re saying that the Indian Child Welfare Act ICWA is racial discrimination because it treats non-Native foster parents differently than it would treat Native families, and that it treats Native kids differently than it would treat non-Native kids. And that that is racial discrimination. And that we have a constitutional amendment that says you can’t treat people differently based on race, and so therefore the whole thing in its entirety is unconstitutional. The problem with that is that the foundation of federal Indian law is the unique political status of tribes.

Our tribes signed over 300 treaties with the United States, [the] federal government, through the same constitutional process that the United States signed treaties with Japan, and Germany, and the rights that our tribes have flow from those treaties. And so it’s not about race, it’s about the political status of tribes and tribal citizens. So, just like I have certain rights because I’m a citizen of the United States, or because I’m a resident of Oklahoma, or because I live in Cherokee County, I have certain rights because I’m a citizen of Cherokee nation. And while Native people have experienced racism, and we’ve been racialized under the law, the status of….. In this case, it’s kind of outdated language, but the law uses the language “Indian child,” an Indian child, as defined by ICWA, is a child who is either eligible for enrollment in a tribe or already enrolled.

And so that’s about that tribe’s… it’s not about that child’s race, it’s about that child’s political relationship to a sovereign nation, and really that sovereign nation’s right to keep its children safe. And so the broader implications is that, well, if ICWA is unconstitutional because it’s racial discrimination, what about every other area of federal Indian Law? When I go to my local IHS hospital for healthcare, I can go to that hospital, but if you’re not a tribal citizen, they would turn you away. How is it, if we’re just a racial category, how is it constitutional that Hastings can serve me, but not other people? What about our right to regulate clean air and clean water on our lands? What about our right to have reservations? No other racial group in the United States has a land base, or a government, or a tribal police force or its own court system. Right? And so the thinking is… is that these ICWA cases are kind of like a Trojan horse to attack other areas of federal Indian law.

It’s almost like pulling a thread on a sweater, that if the Supreme court upholds that ICWA is racial discrimination, then you can kind of translate that to other areas of federal Indian law. And it’s not this sort of like, put on your tin foil hat kind of conspiracy thing. It’s actually really very clearly demonstrable, because the corporate lawyers who are bringing these anti-ICWA cases have made the same arguments in cases fighting tribal casinos, and tribal gaming. So, Paul Clement, who’s one of the big powerful lawyers behind these anti-ICWA cases argued that a tribe’s right to build a casino where his client could not constitute racial discrimination and used almost some of the same exact language that he then turned around and made in an ICWA case. Matthew McGill, who’s representing the plaintiffs in the most current case, has made the state’s rights argument, which is the second part of the argument in the Brackeen’s case to prevent a tribal casino from opening in Arizona.

And so it’s not that big of a logical leap that these lawyers have already taken these legal theories and legal arguments from gaming to ICWA that if they win in the venue of ICWA, that they can take it back to gaming. And if you can strike at the legality of Indian gaming, there’s a lot of money to be made of all casino revenue in the United States, tribes represent half it’s about 30 billion a year. And then the other area where there’s a lot of money interests is oil and gas. And so even though tribes have jurisdiction over less than 2 percent of the land in the United States, it’s about half of all fossil fuel resources west of the Mississippi. Huge reserves of oil and gas and huge reserves of coal. And right now those resources can’t be extracted without tribal consent.

And then there’s also all of these other layers we’ve seen in these pipeline disputes where pipelines are infringing on Indigenous nations’ hunting, and treaty rights, or fishing rights, or clean water rights that might even extend beyond specific reservation boundaries, because a lot of treaties include hunting, and fishing rights that aren’t specifically on the reservation, and tribes are starting to assert that. And so there’s a lot of open conversation within the oil and gas industry about how Indigenous sovereignty, tribal sovereignty is a risk and is a threat to their bottom line. And so Gibson Dunn, who is the law firm that is representing the plaintiffs in this case pro bono, they are the same law firm that represented the Dakota Access Pipeline Company. And they have lobbying groups, who’ve represented their clients, who’ve talked about how Indigenous resistance and these pipeline protests really need to be stopped, because it’s hurting their business.

And so you can just see the financial connections. And I think that that’s what makes this case so scary is because in the kind of ground level of the federal court, there was a conservative judge that basically agreed with the plaintiffs and said, “You know what? ICWA is racial discrimination.” It then went to a very conservative appeals court in the fifth circuit, and they were basically split on the question. They issued this really complicated split decision that didn’t get rid of ICWA, didn’t rule it unconstitutional, but you could tell that on these very, very, very basic principles of federal Indian Law, you’ve got eight justices on an appeals court who would rule that basically federal Indian Law is unconstitutional. And now the case is waiting on the steps of the Supreme Court. And the stakes are just very, very high because it could have this ripple effect that threatens everything from gaming, to hunting and fishing rights, to health, to tribal self-governance, tribal police, almost anything that you can think of because if Native Americans can’t be treated quote unquote differently based on race, well, that’s all of federal Indian law.

KH: Indigenous people make up less than 5 percent of the world’s population, but steward over 80 percent of the world’s remaining biodiversity. The struggle for Native sovereignty in the U.S. is inextricably tied to the battle for life on Earth. When most people think about the role of Native people in environmental struggles, they think of protest movements like Standing Rock, or the Water Protectors who fought Line 3, but in the battle over ICWA, we are seeing right-wing forces use Native children as the tip of a spear, aimed at our very ability to steward the Native land and waters that companies like Enbridge have yet to destroy. There are many ways, the worldover, that Indigenous people are being targeted for defending the Earth. In places like Colombia and the Philippines, assassinations have become increasingly common. Here in the United States, Indigenous activists have faced escalating state violence and criminalization, but we are also faced with a legal onslaught that could devastate our fundamental rights as Native people under the law, and re-legitimize the outright theft of our children, land and water.

And as if all of that wasn’t bad enough, Rebecca and her team discovered yet another layer to the plot to destroy ICWA, and it all comes back to the initial question that led Rebecca to pursue this story: Why? Sure, there are monied players, and there are people who want to subsume a lot of valuable resources, but ICWA has been challenged more times than the Affordable Care Act, and given what killing the ACA means to conservatives, that’s pretty huge. So who was willing to dump seemingly infinite amounts of money into gutting this law, and why?

RN: So there was a high profile Supreme Court case that happened in 2013. And since then, and ICWA wasn’t declared unconstitutional, but it was kind of a partial win. And you could tell that the justices didn’t really understand the law, didn’t really understand tribal sovereignty, and had a lot of sympathy for the plaintiffs in that case. And so it kind of was this blood-in-the-water moment where people could see, “Okay, I think this is an area where we have some sympathy from the Supreme Court and maybe we could prevail.” And so in those early years, kind of like 2015, 2016, the organization spearheading these anti-ICWA cases was this right-wing think tank in Arizona called the Goldwater Institute. And it was kind of random to think, well, why would this organization pick ICWA?

And we were able through FOIA requests to find that they had been coordinating with the state Attorney General since 2015. They brought a barrage of cases and they really helped to get this attack off the ground. And so what I wanted to know as a reporter is: Who paid for it, and why? And what we found is that it was this conservative family foundation in Wisconsin called the Bradley Foundation. And it’s interesting, because I think people are used to hearing about, like the Koch Network and all of that stuff. There are many, many years that the Bradley Foundation actually outspends the entire Koch Network combined, but it doesn’t receive nearly as much press attention, and press coverage. But the Bradley foundation got a huge influx of cash in the mid-2010s. And they were looking at how to spend it to build what they called “conservative state infrastructure.”

They decided that, they kind of saw the writing on the wall that Republicans because of changing demographics in the U.S. are probably not always going to control D.C., but if conservatives can control the states and the courts, who is in the White House and who controls Congress can matter less and less. And so they created this plan to build conservative state infrastructure. They actually asked Goldwater to submit a proposal and Goldwater’s proposal was to build a state-based litigation alliance. So, folks are kind of aware of it when you hear kind of like, oh, five states passed voter ID laws, or these anti-trans bills all happen at the same time, there are a couple organizations that help coordinate state [legislation] in conservative states. And so basically Goldwater’s proposal was to create a litigation arm of that. So there wouldn’t just be coordinated conservative laws. There would be coordinated conservative lawsuits, and that’s where the money to ICWA came from.

It kind of shocked me as a journalist because it wasn’t really about tribes. It seems like from the documents we read, it wasn’t really specifically about tribal sovereignty. It was about this bigger agenda of building conservative power and ICWA was just a tool that got sucked up in it. I mean, what you can see and the Center for Media and Democracy and some other folks have done some really great in depth reporting on the Bradley Foundation, but it was kind of like what I mentioned where they hired this consultant, they kind of did this whole like reflective process before they sent out a big RFP, but their thinking is, if we can control states, and if we can control the courts, then it’s kind of a run around D.C., basically. So, I think that their goal is to build conservative power and to maintain conservative control over politics. And it’s kind of incredible that they’re still a family foundation because the internal memos — and I should say they got hacked. That’s why we know all of this stuff. They got hacked in the summer of 2016.

And so there’s a huge document leak from international hackers. And so that’s how we know kind of the internal thinking at the Bradley Foundation. And to me it’s kind of incredible. I mean they make donations to like art museums, and symphonies, and things like that, that are very typical. And they do a lot of that stuff in the state that they’re based. But if you look at kind of their national giving, it’s very targeted towards building conservative power. And in this one RFP it wasn’t issue based. It’s not like, “Okay, we want to go get rid of abortion.” And it was really about building infrastructure and networks across states to build what they called conservative state infrastructure. And so, I mean, it’s this very strategic approach to building and maintaining conservative power.

I think we’re having a lot of conversations right now about the courts and the Supreme Court, and with abortion in front of the Supreme Court, people are asking a lot about the role of the courts in our democracy and in politics.

And I would say anybody who cares about that should be paying attention to this case, should be paying attention to Brackeen v. Haaland, because it in a zoomed in way, and then also on a big level tells that story. Texas for a really long time worked to make the judges…. They have this really unique system of appointing federal judges where there’s actually a panel of conservative lawyers in the state who appoint people to the senators who then put them through the confirmation process, and you can just see all of the tiny relationships, this small network of relationships. The person who headed up the Gibson Dunn, I believe it was the Dallas office. It was either the Dallas or Houston office. I’m pretty sure it was the Dallas office, at the time that they took this case, that they took the Brackeen’s case, he helped appoint the…. He was on the committee that nominated the judge that they took the case to.

And so that very conservative district judge, who basically took a 40-year-old law and wrote this radical decision where he chucked it out the window, was put in place by this system. And then we see the Fifth Circuit that that person who was heading up the Gibson Dunn office is actually now on the Fifth Circuit. He’s a Trump appointee, but the fifth circuit is a very conservative circuit court. And they came out with this extremely confusing, but also very radical ruling that goes against literally centuries of federal Indian Law. And now the case is headed to the Supreme Court. And I think a lot of people are paying attention to abortion as a test to how much the Supreme Court follows precedent and things like that. And I would say in Brackeen v. Haaland, we have a case where what’s on the table, I mean, it depends on how the Supreme Court grants cert and how they take it up. If they take it up in a broad way, literally what’s on the table is the constitutionality of an entire section of U.S. law. Title 25. If it was back in the days where, like those things were in books, it’s like a whole book of the U.S. code is literally on the table. And so I think, for folks who are interested in how the courts are shaping our democracy and what is happening in the courts, this is one of the cases that needs to be watched.

KH: So in the struggle over ICWA, what’s at stake? The fate of Native children and families, the lands and waters that Native people steward, and potentially, the very shape of what passes for democracy in the United States. So, I sincerely hope that our listeners will feel moved to learn more about this issue, and that you will all subscribe to the podcast This Land, because it really is a momentous piece of journalism. This society rarely acknowledges harms against Native people while they are unfolding. The socially acceptable posture toward us, even in progressive circles, is typically one of regret. But we are still here, and many Native people are fighting, not only for the futures of Native children, but for the survival of all life on Earth. Just last month, 55 Water Protectors and Indigenous leaders were arrested while occupying the Bureau of Indian Affairs. It was the first time since the 1970s that Native activists had seized that space, but I’m guessing most of you didn’t hear about it. Charges against Water Protectors who were arrested trying to halt construction of Line 3 are reportedly straining the legal system in Northern Minnesota counties, but I’m not seeing the outpouring of support that those activists are going to need as they continue to fight outrageous charges, including charges of attempted suicide for two Protectors who climbed into a pipline. I want people to mourn for Native children who were stolen and killed by the state, and for the massacres and removals of the past, but I also want people to recognize that we are here now, and that our liberation and survival is bound up in everyone else’s. These may look like our battles, and our battles alone, but really, it’s more a matter of who’s showing up. Because everyone has always had a stake in stopping the violence of colonialism, because the endgame of capitalism and colonialism is the end of the fucking world.

We all have a stake in the battles ahead, against right-wing power grabs and companies that want to strip-mine the world for resources, until there’s nothing left. We all have a stake in stopping them. So let’s remember our connectivity, and let’s remember that the harms that are inflicted upon us are deeply connected. And let’s try not to let each other down.

I want to thank Rebecca Nagle for talking with me about ICWA and her podcast This Land which you can find on Crooked Media or wherever you get your podcasts. Rebecca’s team has provided links to resources for survivors of child removal and for investigative journalists who want to learn more in the show notes of This Land episodes, and we will be linking to that content in the show notes of this episode as well.

I want to send some love to all of the residential school survivors out there, to the adoptees, and to the displaced. May we all find each other on the frontlines as we fight to keep our children, our land and this world.

I also want to thank our listeners for joining us today, and remember, our best defense against cynicism is to do good, and to remember, that the good we do matters. Until next time, I’ll see you in the streets.

Show Notes

  • Be sure to check out Rebecca’s podcast This Land on Crooked Media or wherever you get your podcasts. Transcripts for each episode are available on the show’s website.
  • Rebecca and her team also created this page of resources for survivors who may need support while grappling with these subjects.
  • This Land has also created this page for journalists and investigators that includes a link to source documents that Rebecca and her team uncovered while creating the podcast.
  • This Land also has its own SecureDrop if you have any anonymous tips or documents you would like to share with their team.
  • You can follow Rebecca Nagle on Twitter.
  • You can support Water Protectors who are still facing charges due to protests against Line 3 here.
  • You can learn more about the recent action at the Bureau of Indian Affairs here.

Further reading:

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