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