The story on NPR’s website first introduces the Buckley-Becker family with a beautiful portrait of the young, middle-class, White couple and their children. In the photo, the father, Paul Buckley, holds their toddler son Mason, whom he and his wife, Cheryl Becker, were inspired to foster after seeing the example of their fellow church members.1
But then the story takes a sharp turn: the family’s dream to adopt Mason has been threatened by a federal law, the Indian Child Welfare Act (ICWA). The couple’s adoption process was nearly complete when they were blindsided by the news that Mason is a citizen of the Choctaw Nation and the tribe was considering intervening in the proceedings. Under ICWA, tribes have primary jurisdiction over the non-parental custody of its children. But according to Buckley, Mason’s birth mother, whom they’d met, never mentioned her or Mason’s heritage. Plus, he continued, “Mason didn’t even look Indian in the least regards.”2
The occasion for NPR’s article—one in a long list of misleading stories in the mainstream media about Indian adoption issues—was an important ICWA ruling in federal court last fall. On October 4, 2018, federal Judge Reed O’Connor of the Northern District of Texas ruled that ICWA is unconstitutionally race-based.3
The ruling wasn’t based on Buckley and Becker’s experience, but rather on that of Chad and Jennifer Brackeen, who similarly wanted to adopt an Indian child: an enrolled citizen of the Navajo and Cherokee Nations whom they had fostered for a year-and-a-half. In 2017, the Brackeens filed a lawsuit in Texas seeking to adopt the two-year-old boy, identified in the lawsuit as A.L.M. Although a Navajo family was available to take the boy, in January 2018 the Brackeens won their case in a Texas district court, and successfully finalized their adoption.4 But their lawsuit, Brackeen v. Zinke, proceeded anyway, joined by several other plaintiffs, including the states of Texas, Louisiana, and Indiana,5 and eventually landed before Judge O’Connor.
Most coverage of O’Connor’s ruling, like NPR’s, tended to gloss over ICWA’s political and legal context and the far-reaching implications of its reversal. Many failed to mention that conflicts concerning ICWA can often be traced back to the failure of state and county authorities to notify a tribe when an enrolled child enters child protective services (as was the case with the Buckley-Becker family’s foster son, Mason). And most neglected to explain that tribal identity is based not on racial identifiers, or whether a child “looks Indian,” but on their political connection to a sovereign nation. And that gets at issues that go far beyond the ability of non-Natives to adopt Native American children.
The designation that the children of enrolled tribal citizens are automatically enrolled citizens as well “is foundational to federal Indian law,” noted a statement released by the Native American Journalists Association.6 In August 2019, the Fifth Circuit Court of Appeals in New Orleans reversed O’Connor’s ruling, finding that ICWA doesn’t violate the Equal Protection Clause and is in fact constitutional. But the plaintiffs are anticipated to appeal this decision, and the case may be headed for the Supreme Court.7 If the court finds that ICWA is based on race rather than tribal membership, the law could be determined to be in violation of the Equal Protection Clause, which guarantees equal protection of laws regardless of race.8 This finding, in turn, would call tribal sovereignty into question. And without sovereignty, treaties between the U.S. government and tribes could be subject to debate.
Reversing ICWA would mean that “The hundreds and thousands of federal statutes benefiting Indians would be open for reconsideration,” said Michigan State University law professor Matthew Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians and editor of Turtle Talk,9 the leading blog on American Indian law and policy. “Federal services for Indians and statutes such as the Indian Self Determination Act, Indian Gaming Regulatory Act and others could be challenged.”10
And that might be the point. Tribal leaders, legal scholars and ICWA advocates speculate that attacks on the law are seldom rooted in genuine concern for American Indian children, but are merely the latest strategy for right-wing groups to advance agendas rooted in racism, greed and the othering of poor people.
Since 2013, challenges to ICWA have gained new urgency and support from wealthy right-wing interest groups. Brackeen v. Zinke was itself bankrolled by an unlikely alliance of right-wing political, legal, economic and religious groups that outwardly appear to have little connection to Indian Country or its children. They include right-wing think tanks, representatives of the private adoption industry, the evangelical adoption movement, anti-treaty rights organizations and conservative fossil fuel industrialists.11
Although the final goals of these seemingly disparate groups may differ, their shared strategy of commodifying Native American children reveals a colonial mindset that not only depicts Native American people as incapable of managing their own affairs, but also frames their children and resources as free for the taking.
According to J. Eric Reed, former tribal prosecutor and a member of the Choctaw Nation, the current ICWA fight is part of a strategy that feeds into ending the federal government’s trust relationship with tribes as well as challenging federal authority over states’ rights. If the decision in Texas is upheld, he said, its legal precedent could reach even beyond Indian Country, where it would strike at the heart of tribal sovereignty, to effectively declare all federal Indian law unconstitutional.
“Brackeen v. Zinke,” said Reed, “is a right-wing foot in the door to rewrite the Constitution.”12
The Roots of ICWA
Most people in the U.S. have never heard of the Indian Child Welfare Act (ICWA), enacted in 1978 to stop the near wholesale removal of Native American children from their birth families to non-Native foster and adoption placements.13 Today, under ICWA, tribes typically try to place children who come into tribal or state care with a family member, a member of their tribe or, failing that, a family from another tribe.
“Typically, the mainstream press picks up a story regarding ICWA only when a non-Indian family has somehow been injured,” said Terry Cross, founding director and current advisor for the National Indian Child Welfare Association.14
But the law stems from generations of abusive policies that tore Native American families apart. Beginning in the late 19th Century, the federal government forced or coerced the separation of thousands of Native children from their families, sending them to federal or religious boarding schools often many hours away from their homelands.
Created as part of President Ulysses S. Grant’s Peace Policy of 1869, the boarding school era was framed as a bloodless, more humane answer to the country’s “Indian Problem”: that is, the fact that Indian land claims stood in the way of greater Western expansion by the United States. The schools’ explicit mission was to destroy Native cultures, languages, and spirituality, and prepare the children for assimilation into American society. Modeled on education tactics used on Native prisoners at Fort Mason in the 1870s by Captain Richard H. Pratt, the boarding schools followed a punitive philosophy of rigid order and Pratt’s motto: “Kill the Indian, and save the man.” The schools would continue well into the 20th Century.15 Today, the Bureau of Indian Education (BIE), within the Department of the Interior (DOI), oversees 183 schools and dormitories serving Native students, including 51 boarding schools.16 (One-hundred and twenty-five of the 183 schools are tribally operated under BIE grants or contracts.17)
By the late 1970s, the means of separating children from their families had changed, as 25 to 35 percent of all American Indian and Alaska Native children were removed from their homes by state welfare and private adoption agencies. Of those removed, 85 percent were placed outside of their families and communities.18 Native Americans continue to face entrenched racial bias by courts and child welfare authorities; today, American Indian and Alaska Natives are overrepresented in foster care at a rate 2.7 times greater than their proportion in the general population.19
It’s these dynamics that ICWA was created to address: helping ensure that tribes, as sovereign nations, have jurisdiction over their own children.20 Since ICWA’s establishment, several prominent child advocacy organizations have declared it the gold standard for child welfare policies and practices for American Indian children.21
But beginning in 2013, with an infamous lawsuit known as “Baby Veronica” that reached the Supreme Court, challenges to ICWA have increased. In the Baby Veronica case—formally called Adoptive Couple v. Baby Girl—powerful interests in the adoption industry and evangelical churches joined with high-profile attorneys to challenge ICWA’s authority regarding the adoption of an infant citizen of the Cherokee Nation named Veronica. Eventually, the non-Native couple seeking to adopt Veronica, Matt and Melanie Capobianco, prevailed.22 Not long after the Supreme Court ruled in the Capobiancos’ favor, Veronica’s non-Native biological mother, Christina Maldonado, signed onto a lawsuit against the U.S. government claiming that ICWA was unconstitutional. (She later dismissed the suit voluntarily.23)
When a similar case arose in 2018, Native American Rights Fund attorney Erin C. Dougherty Lynch described the attacks on ICWA as part of an ongoing and “well-funded multiyear effort by antitribal interests, who use Indian children as weapons in their assault on ICWA and on tribes more broadly. It is a shameful, nakedly political effort … to undo decades, even centuries, of settled law.”24
Ironically, despite ICWA, tribes often decide not to transfer eligible children to tribal jurisdiction for a number of reasons: that the child may have close tribal and family connections in a non-Indian placement, or the tribe may lack resources to intervene in cases located far from the reservation. Notably, in both the Brackeen and Buckley-Becker cases, tribes ruled in favor of the non-Native families’ adoptions. These scenarios, however, seldom receive media coverage.
There is little data regarding states’ compliance with ICWA, but a 2015 study by Casey Family Programs suggests that many government child protection agencies fail to follow the law. The lack of federal oversight for enforcing ICWA adds to gaps in compliance.25
“For years, under ICWA, tribes have been making determinations in child welfare cases based on the best interest of the child,” noted law professor Matthew Fletcher. “Suggesting that tribes don’t routinely make child welfare decisions based on the best interest of the child is just ignorant.”26
The legal battle over the Texas ICWA decision will likely continue for several years, and Fletcher and others believe that future challenges to ICWA are inevitable. In Indian Country Today, writer and Native rights advocate Rebecca Nagle writes that even if O’Connor’s decision is overruled, other attacks on ICWA will continue.27
And that, said former tribal prosecutor J. Eric Reed, is because getting rid of ICWA isn’t only about adoption. If ICWA is found to be unconstitutional, the ruling could undermine the authority of tribal courts, abolish tribal casinos, and privatize tribal lands, opening them up to developers with interests in fossil fuels and other extractive industries. “Eliminating ICWA,” said Reed, “is part of an ultra-conservative agenda to return Indian Country to the Termination era, abrogate tribal treaties, and make tribes and tribal citizens fully subject to state law.”28
Termination of Tribal Sovereignty
From the mid-1940s through 1970, the federal government employed a series of assimilationist policies designed to privatize American Indian lands, destroy tribal cultures, and reverse the tribes’ and government’s “trust relationship,” which protects tribal treaty rights, lands, assets, and resources.29 The assault on this trust responsibility and Indian rights became known as the Termination Era.
During those two decades, over 100 tribes had their federal trust relationship terminated,30 meaning their lands and governments were lost; tribal governments dismantled; reservation lands divided and sold to individual developers, then subjected to local property taxes; and federal Indian programs dissolved. Thousands of American Indians were also moved off reservations to cities as a means of forced assimilation. But that mostly meant exchanging rural poverty for urban poverty.
President Trump’s contemporary policies and opinions regarding Indian sovereignty harken back to the Termination Era. Trump has longstanding animus towards tribal sovereignty and its potential threat to his casino interests.31 In 1993 Trump claimed that the Indian Gaming Regulatory Act grants tribes unfair advantage over non-Indian gaming enterprises, such as his own. He’s also repeatedly insisted that, since some Native people don’t meet his impressions of what Native Americans should look like, their tribal affiliations are invalid.32 In 1993, for example, when Trump testified before Congress to protest Indian gaming laws, he argued, “If you look at some of the reservations that you have approved—you, sir, in your great wisdom, have approved—I will tell you right now, they don’t look like Indians to me, and they don’t look like Indians.”33
Both tribes and legal precedent maintain that tribal citizenship is not based on race but rather on a political relationship between tribal governments and the federal government, according to a January 12, 2017 decision in the Arizona Court of Appeals in S.S. v. Colorado River Indian Tribes.34 In a 2017 challenge to ICWA, the Supreme Court upheld this interpretation.35
But in 2018, in Brackeen v. Zinke, Judge O’Connor seemed to endorse Trump’s view, declaring ICWA a race-based statute that violates the Constitution’s Equal Protection Clause—an important basis for anti-ICWA arguments, since it undermines tribal rights to determine their own membership criteria. (This comes less than a decade after the U.S. signed the United Nations Declaration on the Rights of Indigenous Peoples, which enumerates this right, in 2010.36)
Describing Brackeen as a “kitchen-sink complaint,” several tribes successfully moved to stay O’Connor’s decision pending appeal, and were joined by the Bureau of Indian Affairs (BIA), the Department of the Interior (DOI), Department of Justice (DOJ), and Department of Health and Human Services (HHS).37, 38 In a written statement, the Partnership for Native Children further decried Judge O’Connor’s decision as a legal anomaly by an outlier judge, since O’Connor, nominated by President George W. Bush, has a history of conservative rulings, including on cases involving same-sex marriage, transgender people’s rights, and the Affordable Care Act.39-41
“If you’re a right-wing interest group and can figure out a way to get the case heard in Judge O’Connor’s court, you can expect a sympathetic ear,” Fletcher said.
But before the stay had been granted, shortly after Judge O’Connor’s decision, the office of the Attorney General of Texas had already issued an instructional letter to the state’s Department of Family and Protective Services, declaring that ICWA is “no longer good law and should not be applied to any pending or future child custody proceedings in Texas.”42
The Weird Triad
The leading figures in the newest anti-ICWA drama include the right-wing think tank Goldwater Institute; the National Council for Adoption, representing the private adoption industry; and an evangelical Christian adoption movement that sees adoption as a means to live out their faith.43 Ancillary supporters include the Koch brothers; the DeVos family; the Mercer Family (who are among Trump’s largest donors); the Cato Institute; the American Legislative Exchange Council (ALEC);44 the anti-treaty group Citizens Equal Rights Foundation (CERA), which advocates for the termination of U.S. and tribal treaty agreements; the Southern Baptist Convention, and others.45
For longtime ICWA supporters, the alliance of seemingly disparate groups opposing the law was surprising.
“It’s like this weird triad of strange and powerful bedfellows,” said Nicole Adams of the Colville Confederated Tribes and advisor at the Partnership for Native Children.46 Some of the players may have unwittingly signed on to this war and don’t necessarily share the duplicitousness of others. But their combined opposition to ICWA represents titanic influence, power, and money—all in service of an agenda of privatization.
The alliances are, in fact, not unlikely at all. The united opposition to ICWA of conservative and neoliberal groups is part of a strategic plan to privatize everything from land use to child welfare. Under the guise of promoting free market principals of federalism, limited government, and individual liberty, organizations and individuals such as the Goldwater Institute, the National Council for Adoption, ALEC, the Koch brothers, and others want to reduce governmental social and environmental protections in order to benefit wealthy corporations. “It is a worrisome marriage of corporations and politicians,” explains Lisa Graves, former executive director of the Center for Media and Democracy, “which seems to normalize a kind of corruption of the legislative process—of the democratic process—in a nation of free people where the government is supposed to be of, by, and for the people, not the corporations.”47
The Goldwater Institute
One of the richest anti-ICWA funders is the Goldwater Institute. Since 2015, the libertarian non-profit has underwritten several legal challenges to ICWA.48 Attorneys at the Goldwater Institute filed an amicus brief in Brackeen v. Zinke, reiterating its past claims that ICWA is race-based and unconstitutional.49 And Timothy Sandefur, the Institute’s vice president for litigation, compared ICWA to discrimination suffered under Jim Crow laws, telling The Nation in 2017 that ICWA subjects Native children to an unfair set of rules based on race.50
The Institute describes Indian communities as environments “where poverty, crime, abuse and suicide are rampant,” and cites data showing that American Indian children have the highest rate of foster care of any ethnic group as an argument against ICWA.51 In essence, this blames American Indians for the outcomes of generations of federal assimilationist policies and recommends more of the same as a solution.
And yet, as Fletcher noted, “The Goldwater Institute has no history of expressing interest in either Indian or family law.” Although the Goldwater Institute has created an organization called Equal Protection for Native Children and frequently works with other ICWA opponents such as the Cato Institute, it has no history of working to improve the economic, educational, or health circumstances of Native children.52,53 Indeed, according to the organization’s income tax filling from 2016, its primary areas of research include constitutional law, education reform, and healthcare policy.54
Among the Goldwater Institute’s major donors are the Koch brothers, well-known opponents to federal power and spending.55 Through their various advocacy organizations, the Koch brothers fund and support groups such as ALEC, which, like the Goldwater Institute, has called for a constitutional convention that would focus on elevating states’ rights and reducing federal oversight and regulation.56
Koch Industries, which operates many businesses involved in the petroleum, chemical, mineral, and logging industries, is one of the country’s largest polluters, incurring substantial fines from both state and federal authorities for pipeline spills, chemical leaks, soil and groundwater contamination, illegally extracting oil and gas from federal and Indian lands, and more. It would certainly benefit from less federal regulation and oversight.57,58
If ICWA is declared unconstitutional, less regulation protecting Indian land would be one likely result. Overturning ICWA would lead the way to terminating the entire canon of Indian law, including the existence of federal Indian trust lands. That would in turn open up an enormous opportunity to exploit the vast natural resources on Indian trust lands, currently protected under federal law. At present, tribes as sovereign entities are allowed to act as states under the Clean Water Act, which enables them to establish water and air quality standards on their lands.59 If sovereignty is overturned, however, these tribal standards—frequently more rigorous than their state and federal laws—would become meaningless.
Although reservations make up just two percent of land in the U.S., they hold up to 20 percent of the country’s known oil and gas reserves as well as 30 percent of the nation’s coal reserves, making them a tempting acquisition for extractive industries.60 The Koch brothers have already been investigated by the federal government for stealing oil from reservation lands.61 If the trust relationship between tribes and the federal government were dissolved, reservation land would likely be privatized and no longer subject to federal regulations governing leases and permitting of American Indian lands.62
The Adoption Industry and the Religious Right
The other components of the “weird triad”—the National Council for Adoption, and the adoption movement they represent—bring their own interests to the table, often with support from, or in partnership with, groups like the Goldwater Institute. Matthew McGill, the lead plaintiffs’ attorney in Brackeen v. Zinke, is part of a husband-and-wife legal team with a long history of challenging ICWA. McGill also represented the National Council for Adoption, a nonprofit adoption advocacy organization, and a private adoption agency in the 2015 case National Council for Adoption v. Jewell, which also challenged ICWA as unconstitutional and race-based.63,64 The case was dismissed in federal district court.65 He also joined Goldwater Institute VP Timothy Sandefur at the Cato Institute in 2018 for a presentation on their work challenging ICWA.66
McGill’s wife, Lori Alvino McGill, also a lawyer, represented the adoptive parents and the non-Indian biological mother in the Baby Veronica case, accompanying them on a media tour, including an appearance on the Today Show, that helped make their challenge to ICWA a national story.67,68
The couple represent a larger constituency in the private adoption industry, which has become a powerful lobby against ICWA.69 Private adoptions are a lucrative business, with attorney fees routinely running between $10,000 and $40,000. But as obstacles to international adoptions have grown, there is a greater interest in domestic adoptions in the U.S.—including adoptions from Indian Country.70
Many clients of private adoption attorneys like the McGills are members of a Christian adoption movement that encourages evangelicals to see adoption as a means to live out their faith, help the needy, and evangelize children.71,72 The statement of faith for Nightlight Christian Adoptions—the agency affiliated with the Baby Veronica case—holds that adoption fulfills the Bible’s Great Commission mandate to make disciples of all nations.73
Practicing Christians are more than twice more likely to adopt than the general population, according to a 2013 study by the Barna Group.74 The study also found that most adoptive parents are White, while the children they adopt are overwhelmingly non-White.
For many Native Americans, these demographics bear a troubling resemblance to historical interactions between White Christians and Native peoples—whether the Catholic Church’s 15th Century documents granting European Christian explorers permission to use any means necessary to subdue and convert indigenous peoples, or the more recent abuses of the boarding school era.75
“There is nothing original about some of the evangelical Christian adoption movements to focus on Native children and take it upon themselves to decide what’s best for Native families,” said the Partnership for Native Children’s Nicole Adams.
Generations of Harm
No matter what goal they’re after, for this coalition of right-wing think tanks, adoption industry professionals and advocates, and industrialists eager to plunder tribal lands, getting ICWA declared unconstitutional is a vital first step in undermining tribal sovereignty.
But for Native American communities, it’s just the most recent chapter of a very old story. Beginning with the 1819 Indian Civilization Fund Act, enacted to force assimilation and wipe out Native cultures, generations of Native American communities and families have borne the impact of non-Native political and economic battles over their existence and way of life.76
Assimilationist policies such as the boarding school era traumatized generations of Native Americans in ways that we are now only beginning to understand, as health researchers are finding that the trauma of loss of identity, family, culture, and spirituality is passed from one generation to the next and contributes to high rates of addiction, suicide, violence, and other entrenched maladaptive behavior in some Native American communities.77
Sandy White Hawk, program manager with the Indian Child Welfare Act Law Center in Minneapolis, and a team of researchers found that adult American Indians who were adopted to non-Indian parents experienced high rates of sexual, physical, and emotional abuse in their adoptive families. Adoptees also experience traits common to trauma survivors such as anxiety, intrusive imagery or nightmares, depression, withdrawal/isolation, guilt, and unresolved grief.78 The National Indian Child Welfare Association also cites studies indicating that Indian children placed in non-Indian adoptive homes suffer a far greater risk than the general American Indian population of psychological damage and have a higher tendency to abuse drugs and alcohol.79
“I believe some of the motivation for evangelical Christians to adopt American Indian children comes from a savior complex,” said White Hawk. “Minority populations are often portrayed as unable to care adequately for their children; some of the adoptive parents may believe they are offering homes for unwanted, neglected children.”80
But too often, then as now, this impulse may spring from a failure to understand American Indian culture or extended family structure, wherein aunts or uncles might raise a child instead of her biological parent. As child welfare workers labeled that tradition as neglect, generations of Indian children were removed from their homes.
“Instead of saving Native families, these policies robbed them of the nurturing traditional values where the whole community embraced the child,” said Nicole Adams. “Who are these people to think they can take away ICWA, one of the few good things Native people have to protect our families?”
And from the perspective of adoptees, even the best non-Native family placement, in a loving family, can’t always fill the hunger to know one’s history and culture. Rachel Banks Kupcho, of the Leech Lake Ojibwe tribe of Minnesota, was adopted by White parents in 1977 shortly before ICWA became law. Although her adoptive family is loving and supportive, she said, “I always had a void in my life no matter what I did or where I went.”
Kupcho’s adoption experience motivated her to pursue work as an ICWA investigator for Hennepin County in Minnesota as well as nonprofit ICWA advocacy organizations. She began searching for her birthmother in 2008. Several years later, she found her, and, to her surprise, learned that her mother, too, had been adopted. Back in the 1950s and ‘60s, Kupcho’s biological grandmother was coerced by social workers into relinquishing her children for adoption in order to give them better lives. For generations, Kupcho’s family had faced family separation based on the idea that growing up outside of Indian Country was best.
As Kupcho develops her relationship with her biological mother, she said she’s realized that “Love is not always enough. Going to the occasional pow wow is not enough. …Even knowing you’re Indian is not enough.”
“I needed to know where I came from and make that tribal connection,” she continued. “When visiting the reservation, I am suddenly among family, and I feel good.”81
Endnotes
[1] Wade Goodwyn, “Native American Adoption Law Challenged As Racially Biased.” NPR, December 17, 2018, https://www.npr.org/2018/12/17/677390031/native-american-adoption-law-challenged-as-racially-biased.
[2] Wade Goodwyn, “Native American Adoption Law Challenged As Racially Biased.” NPR, December 17, 2018, https://www.npr.org/2018/12/17/677390031/native-american-adoption-law-challenged-as-racially-biased.
3 https://scholar.google.com/scholar_case?case=6137891330919979704&hl=en&as_sdt=6&as_vis=1&oi=scholarr
[4] Rebecca Nagle, “Texas Judge Rules Indian Child Welfare Act as Unconstitutional,” Indian Country Today, October 8, 2018, https://newsmaven.io/indiancountrytoday/news/texas-judge-rules-indian-child-welfare-act-as-unconstitutional-X_4Gx2-IkEKVEYCEdGxSFg/; Chad Brackeen, et al, Plaintiffs-Appellees, v. Ryan Zinke, Secretary of the Interior, et al., Defendants, and Cherokee Nation, et al., Defendants-Appellants. Appeal from the United States District Court of the Northern District of Texas, Case No. 4:17-CV_00868-O, November 19, 2018, in the United States Court of Appeals for the Fifth Circuit, https://www.indianz.com/News/2018/12/04/00514729433.pdf.
[5] National Indian Child Welfare Association, “Summary of the Brackeen (Texas) v. Zinke Decision,” October 9, 2018, https://www.nicwa.org/wp-content/uploads/2018/10/Texas-federal-district….
[6] “NPR airs inaccurate story about Indian Child Welfare custody case,” Native American Journalists Association, December 18, 2018, https://mailchi.mp/131f830cc6d1/npr-airs-inaccurate-story-about-icwa-custody-case.
[7] Caroline Halter, “Indian Child Welfare Act Upheld By Fifth Circuit,” High Plains Public Radio, August 13, 2019, https://www.hppr.org/post/indian-child-welfare-act-upheld-fifth-circuit.
[8] “Equal Protection and Race, U.S. Constitution Annotated Toolbox,” Congressional Research Service, https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/e….
[9] Turtle Talk Blog: https://turtletalk.blog.
[10] Matthew Fletcher, telephone interview with author, December 2018.
[11] Rebecca Clarren, “A Right-Wing Think Tank is Trying to Bring Down the Indian Child Welfare Act. Why?” The Nation, April, 6, 2017, https://www.thenation.com/article/a-right-wing-think-tank-is-trying-to-bring-down-the-indian-child-welfare-act-why/.
[12] J. Eric Reed, telephone interview with author, December 2018.
[13] “The Indian Child Welfare Act,” National Indian Child Welfare Association, https://www.nicwa.org/wp-content/uploads/2016/11/IndianChildWelfareActof1978.pdf.
[14] Terry Cross, telephone interview with author; Mary Annette Pember, “NICWA Conference Addresses Challenges of the Indian Child Welfare Act,” Indian Country Today, April 27, 2012, https://indiancountrytodaymedianetwork.com/2012/04/27/nicwa-conference-….
[15] Mary Annette Pember, “The Bitter Legacy of Boarding Schools,” http://mapember.com/historical-trauma-in-indian-country/the-bitter-legacy-of-boarding-schools/.
[16] “Indian Elementary-Secondary Education: Programs, Background, and Issues,” October 9, 2007 – June 16, 2017, https://www.everycrsreport.com/reports/RL34205.html.
[17] “Bureau of Indian Education (BIE),” U.S. Department of the Interior, Indian Affairs, https://www.bia.gov/bie.
[18] “Setting the Record Straight: The Indian Child Welfare Act Fact Sheet,” National Indian Child Welfare Association, 2018, https://www.nicwa.org/wp-content/uploads/2018/10/Setting-the-Record-Straight-2018.pdf.
[19] “Disproportionality Rates for Children of Color in Foster Care (Fiscal Year 2015),” NCJFCJ, September 2017, http://www.ncjfcj.org/sites/default/files/NCJFCJ-Disproportionality-TAB-2015_0.pdf. See also: Joshua Padilla, M.A. and Alicia Summers, Ph.D., “Disproportionality Rates for Children of Color in Foster Care,” National Council of Juvenile and Family Court Judges, May 2011, https://www.ncjfcj.org/sites/default/files/Disproportionality%20TAB1_0.pdf.
[20] “Setting the Record Straight: The Indian Child Welfare Act Fact Sheet,” The National Indian Child Welfare Association, https://www.nicwa.org/wp-content/uploads/2018/10/Setting-the-Record-Straight-2018.pdf.
[21] “Re: Notice of Proposed Rulemaking – Regulations for State Courts and Agencies in Indian Custody Proceedings,” Casey Family Programs, May 19, 2015, http://www.nativeamericanbar.org/wp-content/uploads/2014/01/CFP-et-al-Support-Letter-Re-Proposed-ICWA-Regulations.pdf.
[22] Kathryn Joyce, “The Adoption Crunch, the Christian Right, and the Challenge to Indian Sovereignty,” The Public Eye, no. 78 (Winter 2014), https://www.politicalresearch.org/2014/02/23/the-adoption-crunch-the-christian-right-and-the-challenge-to-indian-sovereignty/.
[23] Suzette Brewer, “Baby Veronica’s Birth Mother Files Suit, Claims ICWA Unconstitutional,” Indian Country Today, July 26, 2013, http://indiancountrytodaymedianetwork.com/2013/07/26/veronicas-birth-mother-sues-doj-says-icwa-unconstitutional-150597.
[24] Cecily Hilleary, “Challenges to Indian Child Welfare Act Concern Native Americans,” VOA News, October 21, 2018, https://www.voanews.com/a/native-americans-concerned-by-challenges-to-indian-child-welfare-act/4624278.html.
[25] “Measuring Compliance with the Indian Child Welfare Act,” Casey Family Programs, March 2015, https://caseyfamilypro-wpengine.netdna-ssl.com/media/measuring-compliance-icwa.pdf.
[26] Matthew Fletcher, interview with author, December 2018.
[27] Rebecca Nagle, “A long legal battle is expected as tribes appeal Texas court ruling on ICWA,” Indian Country Today, November 27, 2018, https://newsmaven.io/indiancountrytoday/news/a-long-legal-battle-is-expected-as-tribes-appeal-texas-court-ruling-on-icwa-eMh99qdrtEa8ZnThO7XcIA/.
[28] J. Eric Reed, interview with author, December 2018.
[29] “Frequently Asked Questions- What is the federal Indian trust responsibility?” U.S. Department of the Interior, Bureau of Indian Affairs, https://www.bia.gov/frequently-asked-questions.
[30] Alysa Landry, “Harry S. Truman: Beginning of Indian Termination Era,” Indian Country Today, August 16, 2016, https://newsmaven.io/indiancountrytoday/news/a-long-legal-battle-is-exp….
[31] Nancy LeTourneau, “Trump’s Direct Assault on Native American Tribal Sovereignty,” Washington Monthly, April 24, 2018, https://washingtonmonthly.com/2018/04/24/trumps-direct-assault-on-native-american-tribal-sovereignty/.
[32] “Donald Trump and Federal Indian Policy: ‘They Don’t Look Like Indians to Me,’” Indian Country Today, July 28, 2016, https://newsmaven.io/indiancountrytoday/archive/donald-trump-and-federa….
[33] “Donald Trump and Federal Indian Policy: ‘They Don’t Look Like Indians to Me,’” Indian Country Today, July 28, 2016, https://newsmaven.io/indiancountrytoday/archive/donald-trump-and-federa….
[34] “Frequently Asked Questions,” U.S. Department of the Interior, Bureau of Indian Affairs, https://www.bia.gov/frequently-asked-questions.
[35] Mark E. Hills, “U.S. Supreme Court Rejects Race-Based Challenge to ICWA,” Varnum Attorneys at Law, November 30, 2017, https://www.varnumlaw.com/newsroom-publications-us-supreme-court-rejects-race-based-challenge-to-icwa.
[36] “United Nations Declaration on the Rights of Indigenous Peoples,” United Nations, March 2008, https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
[37] “Intervenor-Defendants’ Brief in Support of Their Motion for Summary Judgement,” Intervenor-Defendant Cherokee Nation, Brackeen v. Zinke, Case No. 4:17-cv-868-O (N.D. TX, Ft. Worth Div.), June 15, 2018, https://turtletalk.files.wordpress.com/2018/06/145_intervenordef_msj.pdf.
[38] In the United States Court of Appeals for the Fifth Circuit, Chad Brakeen, et al., Plaintiffs-Appellees, V. Ryan Zinke, Secretary of the Interior, et al., Defendants, and Cherokee Nation et al., Defendants-Appellants. https://turtletalk.files.wordpress.com/2018/11/motionforstaypendingappeal.pdf; In the United States Court of Appeals for the Fifth Circuit, NO. 18.11479, Chad Everet Brackeen: Jennifer Kay Brackeen: State of Texas; Altgracia Socorro Hernandez: State of Indiana: Jason Clifford: Frank Nicholas Libretti: State of Louisiana: Heather Lynn Libretti: Danielle Clifford, Plaintiffs-Appellees V. Cherokee Nation: Oneida Nation: Quinault Indian Nation: Morongo Band of Mission Indians, Intervenor Defendants-Appellants, Appeal from the United States District Court for the Northern District of Texas, https://www.indianz.com/News/2018/12/04/00514745522.pdf.
[39] “PNC supports ruling to stay TX ICWA decision,” Partnership for Native Children, December 3, 2018, https://www.nativechildren.org/latest/pnc-supports-ruling-to-stay-tx-icwa-decision.
[40] “Hon. Reed O’Connor, U.S. District Court for the Northern District of Texas,” The Federalist Society, https://fedsoc.org/contributors/reed-o-connor.
[41] Ian Millhiser, “Obamacare repeal is back, and it’s dumber than ever,” Think Progress, Feb. 28, 2018, https://thinkprogress.org/obamacare-repeal-lawsuit-republican-governors-attorneys-general-2aef6cde8775/; Michael Hiltzik, “A Texas federal judge OKs nationwide discrimination in healthcare against transgender people,” The Los Angeles Times, Jan. 9, 2017. https://www.latimes.com/business/hiltzik/la-fi-hiltzik-transgender-aca-20170109-story.html; Sheryl Gay Stolberg, Robert Pear and Abby Goodnough, “Ruling Striking Down Obamacare Moves Health Debate to Center Stage,” The New York Times, December 15, 2018, https://www.nytimes.com/2018/12/15/us/politics/obamacare-ruling-health-care.html.
[42] John Kelly, “State Actions on Indian Child Welfare Act Since Federal Judge Struck it Down,” The Chronicle of Social Change, November 30, 2018, https://chronicleofsocialchange.org/child-welfare-2/state-actions-indian-child-welfare-act-since-judge-struck-down-law.
[43] Kathryn Joyce, “The Adoption Crunch, the Christian Right, and the Challenge to Indian Sovereignty,” The Public Eye, no. 78 (Winter 2014), https://www.politicalresearch.org/2014/02/23/the-adoption-crunch-the-christian-right-and-the-challenge-to-indian-sovereignty/.
[44] Alex Kotch, “Kochs Bankroll Move to Rewrite the Constitution,” PRWatch, March 23, 2017, https://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention.
[45] Rebecca Clarren, “A Right-Wing Think Tank is Trying to Bring Down the Indian Child Welfare Act. Why?” The Nation, April, 6, 2017, https://www.thenation.com/article/a-right-wing-think-tank-is-trying-to-bring-down-the-indian-child-welfare-act-why/.
[46] Nicole Adams, interview with author, January 2019.
[47] Lisa Graves, “About ALEC Exposed,” PRWatch, July 13, 2011, https://www.prwatch.org/news/2011/07/10883/about-alec-exposed.
[48] Rebecca Clarren, “A Right-Wing Think Tank is Trying to Bring Down the Indian Child Welfare Act. Why?” The Nation, April, 6, 2017, https://www.thenation.com/article/a-right-wing-think-tank-is-trying-to-bring-down-the-indian-child-welfare-act-why/.
[49] In the United States District Court For the Northern District of Texas Fort Worth Division, CHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; FRANK NICHOLAS LIBRETTI; HEATHER LYNN LIBRETTI; ALTAGRACIA SOCORRO HERNANDEZ; JASON CLIFFORD; and DANIELLE CLIFFORD, and State of Texas; State of Louisiana; and State of Indiana, Plaintiffs, V. RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior; BRYAN RICE, in his official capacity as Director of the Bureau of Indian Affairs; JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary for Indian Affairs; the BUREAU OF INDIAN AFFAIRS; and the UNITED STATES DEPARTMENT OF INTERIOR. Defendants, https://goldwaterinstitute.org/wp-content/uploads/2018/04/GIs-Brief-Amicus-Curiae.pdf.
[50] Rebecca Clarren, “A Right-Wing Think Tank is Trying to Bring Down the Indian Child Welfare Act. Why?” The Nation, April, 6, 2017, https://www.thenation.com/article/a-right-wing-think-tank-is-trying-to-bring-down-the-indian-child-welfare-act-why/.
[51] “Death on a Reservation,” The Goldwater Institute, June 10, 2015. https://goldwaterinstitute.org/article/death-on-a-reservation/.
[52] Equal Protection for Indian Children, http://equalprotection.org.
[53] Rebecca Clarren, “A Right-Wing Think Tank is Trying to Bring Down the Indian Child Welfare Act. Why?” The Nation, April, 6, 2017, https://www.thenation.com/article/a-right-wing-think-tank-is-trying-to-bring-down-the-indian-child-welfare-act-why/.
[54] Barry Goldwater Institute for Public Policy Research, Internal Revenue Service Form 990, Tax year 2016, filed November 15, 2017, https://goldwaterinstitute.org/wp-content/uploads/2017/04/Goldwater-Form-990-2016.pdf.
[55] Alex Kotch, “Kochs Bankroll Move to Rewrite the Constitution,” PRWatch, March 23, 2017, https://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention.
[56] Alex Kotch, “Kochs Bankroll Move to Rewrite the Constitution,” PRWatch, March 23, 2017, https://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention.
[57] “Koch Industries Pollution,” GreenPeace, https://www.greenpeace.org/usa/global-warming/climate-deniers/koch-industries/koch-industries-pollution/.
[58] “Toxic 100 Air Polluters Index (2016 Report, Based on 2014 Data),” Political Economy Research Institute, University of Massachusetts Amherst, https://www.peri.umass.edu/toxic-100-air-polluters-index-2016-report-based-on-2014-data.
[59] “Tribes and Water Quality Standards,” United States Environmental Protection Agency, https://www.epa.gov/wqs-tech/tribes-and-water-quality-standards.
[60] Valerie Volcovici, “Trump advisors aim to privatize oil-rich Indian reservations,” Reuters, December 5, 2016, https://www.reuters.com/article/us-usa-trump-tribes-insight/trump-advisors-aim-to-privatize-oil-rich-indian-reservations-idUSKBN13U1B1. See also: https://resourcegovernance.org/sites/default/files/RWI_Native_American_…
[61] “‘Hidden History’ Of Koch Brothers Traces Their Childhood And Political Rise,” Fresh Air, National Public Radio, January 19, 2016, https://www.npr.org/2016/01/19/463565987/hidden-history-of-koch-brothers-traces-their-childhood-and-political-rise.
[62] Valerie Volcovici, “Trump advisors aim to privatize oil-rich Indian reservations,” Reuters, December 5, 2016, https://www.reuters.com/article/us-usa-trump-tribes-insight/trump-advisors-aim-to-privatize-oil-rich-indian-reservations-idUSKBN13U1B1.
[63] Building Arizona Families Adoption Agency, https://www.buildingarizonafamilies.com/.
[64] Native American Rights Fund, “National Council for Adoption v Jewell,” National Indian Law Library, October 20, 2015, https://narf.org/nill/bulletins/federal/documents/natl_council_adoption_v_jewell.html.
[65] Scott Trowbridge, JD, “ Legal Challenges to ICWA: An Analysis of Current Case Law,” American Bar Association, January 2, 2017, https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vol-36/january-2017/legal-challenges-to-icwa—an-analysis-of-current-case-law/.
[66] “The Indian Child Welfare Act at 40,” Cato Institute, September 20, 2018, https://www.cato.org/events/the-indian-child-welfare-act-at-40.
[67] “Adoptive Couple V. Baby Girl (12-399),” Tribal Supreme Court Project, Native American Rights Fund, https://sct.narf.org/caseindexes/adoptivecouplevbabygirl.html.
[68] Linda Carroll, “Adoptive parents awarded custody of girl, 3, but ‘nobody showed,’” Today Show, August 9, 2013, https://www.today.com/news/adoptive-parents-awarded-custody-girl-3-nobody-showed-6C10884389.
[69] Suzette Brewer, “War of Words: ICWA Faces Multiple Assaults from Adoption Industry,” Indian Country Today, July 8, 2015, https://newsmaven.io/indiancountrytoday/archive/war-of-words-icwa-faces-multiple-assaults-from-adoption-industry-IEoKzrVNKkGJ7pYbPiJQOA/. See also: “Adoption and Child Welfare Services Industry in the US,” Industry Market Research Report, IBISWorld, December 2018, https://www.ibisworld.com/industry-trends/market-research-reports/healthcare-social-assistance/social-assistance/adoption-child-welfare-services.html.
[70] Kathryn Joyce, “The Adoption Crunch, the Christian Right, and the Challenge to Indian Sovereignty,” The Public Eye, no. 78 (Winter 2014), https://www.politicalresearch.org/2014/02/23/the-adoption-crunch-the-christian-right-and-the-challenge-to-indian-sovereignty/.
[71] Kathryn Joyce, “The Adoption Crunch, the Christian Right, and the Challenge to Indian Sovereignty,” The Public Eye, no. 78 (Winter 2014), https://www.politicalresearch.org/2014/02/23/the-adoption-crunch-the-christian-right-and-the-challenge-to-indian-sovereignty/.
[72] Peter Smith, “Adoption Growing among Evangelical Christians,” Orphan Care Alliance, excerpt from the Louisville Courier Journal, https://orphancarealliance.org/adoption-growing-among-evangelical-christians/.
[73] “Statement of Faith,” Nightlight Christian Adoptions https://www.nightlight.org/statement-faith/.
[74] “5 Things You Need to Know About Adoption,” Barna Group, November 4, 2013, https://www.barna.com/research/5-things-you-need-to-know-about-adoption/#.UnvPco2E7Tw.
[75] Steve Newcomb, “Five Hundred Years of Injustice: the Legacy of Fifteenth Century Religious Prejudice,” Shaman’s Drum, (Fall 1992), http://ili.nativeweb.org/sdrm_art.html.
[76] Dennis Wagner, “1818 James Monroe - Indian Civilization Act of 1819,” State of the Union History, April 7, 2017, http://www.stateoftheunionhistory.com/2017/04/1818-james-monroe-indian-civilization.html.
[77] Mary Annette Pember, “Intergenerational Trauma: Understanding Native’s Inherited Pain,” Indian Country Today, 2015, http://mapember.com/historical-trauma-in-indian-country/all-about-generations-trauma-report/.
[78] Sandy White Hawk, “Letter to Bureau of Indian Affairs Secretary Kevin Washburn.” First Nations Repatriation Institute, May 19, 2015, https://turtletalk.files.wordpress.com/2015/06/1524_-_white_hawk_sandy.pdf.
[79] “Attachment and Bonding in Indian Child Welfare Summary of Research,” National Indian Child Welfare, 2016, https://www.nicwa.org/wp-content/uploads/2017/09/Attachment-and-bonding-NICWA-final-breif-092817.pdf.
[80] Sandy White Hawk, interview with author, January 2019.
[81] Mary Annette Pember, “A Mother’s Day story: Mother and daughter both given up for adoption,” Our history: Lost Children of the Indian Adoption Projects. First published in Indian Country Today, May 14, 2012, https://americanindianadoptees.blogspot.com/2012/05/knowing-you-indian-….