Abstract

Excerpted From: Hana E. Brown, Challenging the Indian Child Welfare Act: Colorblind Racism, Whiteness as Property, and the Legal Architecture of Settler Colonialism, 59 Law and Society Review 356 (June, 20250 (3 Footnotes/References) (Full Document)

In the United States and other settler states, movements to protect and advance the sovereignty of Native Nations have achieved marked gains. Sovereignty movements challenge histories of assimilationist and genocidal policies by campaigning to secure political recognition and establish the autonomy of Native Nations to self-govern. These efforts have resulted in the establishment of a wide range of institutions and policies, from state-tribal agreements that govern gaming and natural resource rights to laws that institutionalize tribal sovereignty. However, victories for Native Nations have encountered intense backlash. White settler individuals, communities, and governments have furiously challenged policies that uphold tribal sovereignty.

This article examines one example of this backlash: the decade-long mobilization to strike down the 1978 Indian Child Welfare Act (ICWA). ICWA is a landmark piece of federal Indian legislation. For generations before its passage, state and federal authorities forcibly removed 25-35% of American Indian children from their communities, turning them over to white families and institutions for “assimilation”. These removals facilitated the settler state's eradication of Native Nations and seizure of Indigenous lands and resources. To end these forced removals, ICWA established procedures for child welfare cases involving American Indian children. ICWA also affirmed the right of Native Nations to intervene in and assume jurisdiction over child welfare cases involving their members.

ICWA has faced resistance since its passage. Caseworkers have skirted ICWA's requirements, and state courts have limited its applicability. This piecemeal resistance circumscribed ICWA's reach, but since 2013 overturning the law has become a central goal of the anti-sovereignty movement. A coalition of conservative and libertarian think tanks, private adoption agencies, fossil fuel interests, anti-treaty rights organizations, and corporate law firms have waged a concerted battle to have ICWA ruled unconstitutional. This legal mobilization is built around individual child welfare cases by non-Native families seeking to foster or adopt Native children. However, in challenging ICWA, the campaign also challenges the foundation of federal Indian law: the sovereign political status of Native Nations. Indian law experts and Native Nations fear that if ICWA falls, so will tribal sovereignty and the rights that accompany it.

Legal mobilization scholars examine when, how, and to what effect people mobilize the law . This literature has centered on progressive movements, but there is growing interest in how conservative forces mobilize the law to resist measures to address social inequalities . This work highlights how conservative forces use the rhetoric of “special rights” to mobilize resentment toward minoritized populations and curtail structural reforms. I turn the focus of conservative legal mobilization studies to the contemporary mobilization against ICWA. What ideological strategies do challengers use to ground their campaign against the law and tribal sovereignty? I rely on content analysis of documents from the anti-ICWA coalition's 17 major court cases and a unique dataset of public-facing documents produced by the leading ICWA challengers. I use this content analysis to interrogate the ideological scaffolding of the anti-ICWA campaign.

Bringing critical race theory (CRT) and settler colonial theory (SCT) to bear on the study of legal mobilization, I find that the anti-ICWA coalition links settler colonialism and colorblind racism to mobilize the law to protect white settler entitlement to property. I find that the campaign is structured around three ideological maneuvers that have long hastened and justified Indigenous dispossession: erasure, settler normativity, and reclassification. These maneuvers scaffold a fourth -- colorblindness -- and the claim that ICWA is an unconstitutional race-based statute. Responding to calls to interrogate the material bases of colorblind racism (Patel 2015), I use Cheryl Harris's (1993) work on whiteness as property to show how ICWA adversaries mobilize settler colonialism and colorblind racism to legitimate white property rights to Indigenous children and delegitimize tribal sovereignty, potentially opening the door for the seizure of tribal lands and natural resources.

These findings highlight theoretical advantages to braiding legal mobilization scholarship, SCT, and CRT. While existing work examines race as an individual-level input to legal mobilization, this study highlights broader racial ideologies as both inputs and outputs of conservative legal mobilization. Further, these findings suggest that conservative legal mobilization against “special rights” should be conceptualized as a predictable backlash that arises when white entitlement to property is threatened . Finally, while SCT and CRT are often treated as distinct , the study of conservative legal mobilization highlights how the two can be used jointly to understand how institutional racism and logics of property rights interact to buttress structures of inequality and domination.

[. . .]

Recently, a central case for the anti-ICWA campaign reached the U.S. Supreme Court: Haaland v. Brackeen. In a 7-2 ruling, the court rejected most of the constitutional arguments presented by the campaign and refused to rule on the Equal Protection argument due to lack of standing. The ruling was a clear victory for the well-organized campaign by Native Nations and their allies to preserve the law and tribal sovereignty. It is also a testament to the Indigenous traditions and institutions that have preserved families despite the intrusion of the settler state . The strength of their mobilization should not be understated. However, the fight to preserve tribal sovereignty continues. After the ruling, leading anti-ICWA advocates committed to continuing their struggle, and court cases in multiple states remain in play . Rather than signal an end, the Brackeen ruling also leaves the door open for future equal protection challenges. Given the long histories of family separation and racialized settler colonial domination in the United States, a single court ruling cannot be expected to serve as an endpoint. The task before law and society scholars is to understand and analyze how these tactics -- and the legal mobilizations to protect them -- perpetuate the racialized material relations that undergird entitlement to property, be that property children, land, education, natural resources, or even the right to democratic participation.

Hana E. Brown is Professor of Sociology at Wake Forest University. Her research investigates the political and legal foundations of social inequalities.