Legal Mobilization, Settler Colonialism, and CRT

Sociolegal scholarship examines how people use the legal system to seek redress (McCann Reference McCann2006; Miller and Sarat Reference Miller and Sarat1980; Morrill et al. Reference Morrill, Tyson, Edelman and Arum2010; Scheingold Reference Scheingold1974). Legal mobilization research probes how individuals come to perceive grievances as such, when and how they take legal action, and what occurs when they do (McCann Reference McCann1994; Steinman Reference Steinman2005; Vanhala Reference Vanhala2022). This scholarship recognizes that injuries and disputes are socially constructed (Edelman et al. Reference Edelman, Leachman and McAdam2010) and “shape our very capacities to imagine social or political possibilities” (McCann Reference McCann2006:21). Thus, legal mobilization involves the strategic use of language to frame campaigns to subvert or entrench power (Dudas Reference Dudas2008; Edelman et al. Reference Edelman, Leachman and McAdam2010; Sarat and Felstiner Reference Sarat and Felstiner1986). Because language and the law are ideological, social movement actors mobilize specific ideologies to hasten legal change (Mertz Reference Mertz1988; Steinman Reference Steinman2005).

Rights talk is one example. Because individual rights are a centerpiece of American political culture, the language of rights has a particular legitimacy (Dudas Reference Dudas2005; Edelman et al. Reference Edelman, Leachman and McAdam2010; McCann Reference McCann2006; Scheingold Reference Scheingold1974). As scholars of the “right against rights” have noted, rights talk has become critical to conservative movements (Daum and Ishiwata Reference Daum and Ishiwata2010; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003; Payne et al. Reference Payne, Zulver and Escoffier2023). On issues as diverse as LGBTQ rights, civil rights, disability, unions, immigration, and Indigenous treaty rights, conservative movements have mobilized rights talk to dismantle legal rights (Crenshaw Reference Crenshaw2006; Dorfman Reference Dorfman2019; Dudas Reference Dudas2005; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003; Okechukwu Reference Okechukwu2019; Payne and Santos Reference Payne and de Souza Santos2020). Treating rights as a zero-sum game (Glendon Reference Glendon2008), these movements assert that political and legal institutions have granted “special” and illegitimate rights to some while denying “equal rights” to others (Daum and Ishiwata Reference Daum and Ishiwata2010; Dudas Reference Dudas2008; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003). These mobilizations draw moral boundaries between marginalized social groups, portrayed as unjustly and illegitimately receiving “special rights,” and members of a majority group understood as morally worthy (Dorfman Reference Dorfman2019; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003; Payne and Santos Reference Payne and de Souza Santos2020).

In this article, I bring CRT and SCT to bear on the study of conservative legal mobilization. Both frameworks examine the underlying systems of domination and oppression that structure social life and the law (Delgado et al. Reference Delgado, Stefancic and Harris2017; Gómez Reference Gómez2004). CRT theorizes the role of race and racism in the law and the structuring force of systemic racism in U.S. society (Crenshaw et al. Reference Crenshaw, Gotanda, Peller and Thomas1996). SCT examines settler colonialism as a specific form of colonial domination. Rather than exploit labor and extract resources from the periphery to the colonial core, settlers establish a new society predicated on the elimination of Indigenous populations (Goldstein Reference Goldstein, Molina, HoSang and Gutiérrez2019; McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Veracini Reference Veracini2010). A key premise of SCT is that, rather than a historical event, settler colonialism shapes social life today (Wolfe Reference Wolfe2006). SCT, therefore, draws attention to property relations by emphasizing the mechanisms by which settlers and settler institutions work to perpetuate Indigenous elimination and resource seizure.

As other fields of law and society have increased their engagement with CRT (Van Cleve and Mayes Reference Van Cleve and Mayes2015) and SCT (Stewart et al. Reference Stewart, Watters, Horowitz, Larson, Sargent and Uggen2022; Willmott Reference Willmott2022), these frameworks offer important insights for legal mobilization scholarship. The two frameworks stress that racism and settler colonialism are central to modern legal institutions and doctrines (Bell Reference Bell1980; Dahl Reference Dahl2018; Park Reference Park2022; Roberts Reference Roberts2011); therefore, they suggest that racism and settler colonialism should be theorized as part of the present legal opportunity structure. CRT and SCT also direct attention to the underlying structures of power that shape legal mobilization and the language and ideologies employed therein.

Legal mobilization scholarship largely treats race as an independent variable (see Gómez Reference Gómez2004 for a critique), examining how individuals’ racial identities affect the likelihood of mobilizing the law (Morrill et al. Reference Morrill, Tyson, Edelman and Arum2010). However, CRT directs attention to how racial ideologies are employed and rearticulated in legal mobilization processes (Delgado et al. Reference Delgado, Stefancic and Harris2017). CRT also highlights the ideological strategies, like colorblind racism, used to subvert rights claims by marginalized communities. Colorblind racism employs language that is explicitly devoid of race in the service of racially unequal goals (Bonilla-Silva Reference Bonilla-Silva2006). In the legal field, colorblindness considers any recognition of race as discrimination, even if used to ameliorate racial inequalities (Crenshaw et al. Reference Crenshaw, Gotanda, Peller and Thomas1996; Freeman Reference Freeman1978; Haney López Reference Haney López2014). Colorblind constitutionalism legitimates white domination by treating any race-based legal claim as inherently suspect (Delgado et al. Reference Delgado, Stefancic and Harris2017; Freeman Reference Freeman1978; Gotanda Reference Gotanda1991). As evidence of this, recent U.S. Supreme Court rulings on affirmative action and voting rights have framed remedies for racial injustice as unconstitutional discrimination while demonstrating an “expanded readiness to provide redress for the racial injuries that aggrieved white people have claimed to experience” (Bridges Reference Bridges2022:135). CRT thus directs attention both to how rights claims are racialized and to how conservative legal mobilizations build, employ, and transform colorblind racial ideologies to achieve their goals.

SCT provides a complementary vantage point for examining legal mobilization, highlighting that many elements of modern political-legal argumentation are rooted in and reproduce settler colonialism. While law and society scholars highlight “rights” as a core American legal value that groups draw on to legitimize legal claims, Indigenous studies scholars note that the very idea of individual rights – like the ideal of equality – is an ideology that emerged through the practices of settler colonialism, colonialism, and slavery (Byrd Reference Byrd2011; Moreton-Robinson Reference Moreton-Robinson2015). As Lowe (Reference Lowe2015:16) explains, “Modern notions of rights … did not contravene colonial rule; rather they precisely permitted expanded Anglo-American rule by adopting settler means of appropriation and removal.” In other words, the notion of state-sanctioned legal rights included white settlers’ rights to expropriate Indigenous lands and exterminate Native Nations and is thereby foundational to the settler colonial enterprise. Another settler colonial element of rights talk is its individualistic focus. The settler state has long used the American jurisprudential notion of rights as individual rather than collective to dispossess Native Nations of collectively held land, turning it into individual privately owned plots as a means of undermining tribal sovereignty (Biolsi Reference Biolsi1995). Rights talk today accomplishes the same goals by translating collective interests in political sovereignty into individual claims on the settler state for the very “rights” that enabled dispossession (Moreton-Robinson Reference Moreton-Robinson2015).

Like individual rights, race and racialization processes are settler colonial. Public discourse treats Indigenous populations as racialized minorities, but, as Indigenous studies scholars and activists have stressed, tribes are sovereign political nations (Dahl Reference Dahl2018; McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Moreton-Robinson Reference Moreton-Robinson2015; Saito Reference Saito2020; Steinman Reference Steinman2016). Racialization treats this diverse group of sovereigns as a single race, one inferior to white settlers. Racialization offers ideological justification for the settler state’s elimination of Indigenous communities and appropriation of Indigenous lands (McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Saito Reference Saito2020; Veracini Reference Veracini2010). It also enables colorblind racism in the legal-political sphere. Sovereign nations hold the right to self-govern, and sovereignty provides a remedy for conquest and dispossession. Racialized minorities, on the other hand, may seek legal redress by making claims for incorporation into and colorblind equal treatment from the settler state (McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Steinman Reference Steinman2016). Thus, while colorblindness appears to elide race, it depends upon the treatment of American Indians as a racial rather than political group. SCT directs studies of legal mobilization toward the power structures reproduced by the language of rights and race.

CRT and SCT also offer opportunities to deepen understanding of conservative anti-rights mobilization. Extant research emphasizes the role that emotions play in conservative legal mobilization, noting that movements use the language of “special rights” to delegitimize rights claims from marginalized communities and to activate emotional responses like anxiety and resentment among sympathetic observers (Dudas Reference Dudas2005; Reference Dudas2008; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003). For example, in the backlash against racial justice policies like affirmative action, “special rights” claims have mobilized white anxieties and resentment to build public support and conservative political power (Crenshaw Reference Crenshaw2006; Okechukwu Reference Okechukwu2019).

CRT and SCT build on these insights by drawing attention to the racialized material relations undergirding these processes. Foundational in this regard is the work of Cheryl Harris (Reference Harris1993) who argues that whiteness should be conceptualized as a form of property because it grants access to resources and opportunities for economic accumulation. Harris articulates how the law has conceptualized and codified property to preserve and protect it for white people. This interdependence reproduces white dominance and the ongoing expectation of it among white people (Harris Reference Harris1993; Patel Reference Patel2015; Ray Reference Ray2022). Settler colonial theorists have expanded on Harris’s insights to theorize how settler colonialism and racism work together to preserve white entitlement to property rights (Moreton-Robinson Reference Moreton-Robinson2015; Patel Reference Patel2015). Because settler processes of dispossession and accumulation depend upon ideologies of racial hierarchy (Coulthard Reference Coulthard, Simpson and Smith2014; Lowe Reference Lowe2015; McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020), they yield a racially unequal distribution of property, rights, and feelings of entitlement (Moreton-Robinson Reference Moreton-Robinson2015). In other words, given the settler state’s investment in protecting white property rights, whiteness carries with it a desire and expectation of ownership and domination (Harris Reference Harris1993; Moreton-Robinson Reference Moreton-Robinson2015).

These insights suggest at least two avenues for expanding studies of conservative legal mobilization. First, law and society scholarship emphasizes the importance of emotions in mobilization, but CRT and SCT draw attention to the material relations that produce these emotions, viewing resentment as an expression of white entitlement to property and the settler state’s effort to protect it (Harris Reference Harris1993; McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Rocha Beardall and Edwards Reference Rocha Beardall and Edwards2021; Willmott Reference Willmott2022; Wolfe Reference Wolfe2006). Perceived threats to white settler property entitlements produce the very emotions that special rights talk aims to mobilize: anxiety and resentment. While current research tracks the rise and ubiquity of anti-rights language (Daum and Ishiwata Reference Daum and Ishiwata2010; Dudas Reference Dudas2008; Reference Dudas2005; Reference Dudas2008; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003), CRT and SCT also direct us to ask: what ideological maneuvers do conservative movements use to frame white property rights as under threat?

Second, existing work understands “special rights” talk as a means of building conservative political power (Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003; Okechukwu Reference Okechukwu2019). CRT and SCT suggest that a key part of this story is how these movements work to protect white entitlement to property. How do conservative movements mobilize the settler colonial and racial foundations of the law to shore up white property rights? In what follows, I draw on an analysis of the contemporary anti-ICWA mobilization to address these questions.

Settler Colonialism and Family Separation

State-sponsored family separation is an enduring mechanism of racialized social control (Briggs Reference Briggs2020; Roberts Reference Roberts2002; Reference Roberts2022; Vasquez-Tokos and Yamin Reference Vasquez-Tokos and Yamin2021). This article centers on one such example: the forced removal of American Indian children from their communities. In the 19th century, settler state intrusion in Native families became a central practice in federal Indian policy (Jacobs Reference Jacobs2014). In the late 1880s, government officials, missionaries, and social workers began systematically removing Native children from their homes, threatening severe punishments if families did not relinquish their children (George Reference George1997). By the 20th century, the federal government and local reformers had developed an extensive system of boarding schools that housed over 200,000 removed children (Holt Reference Holt2001). Justified by racialized ideologies of Indigenous inferiority and white superiority, these schools aimed to “assimilate” Indigenous children into whiteness (Jacobs Reference Jacobs2014). Government authorities also facilitated the adoption of tribal children by white families via the Indian Adoption Project, a cooperative effort between the Child Welfare League of America and the Bureau of Indian Affairs (Jacobs Reference Jacobs2014). These family separation practices were so widespread that between 1900 and 1977, 25–35% of American Indian children were removed from their homes (Association on American Indian Affairs 1977).

Like other forms of family separation, these forced removals were racial projects that worked to build state power (Vasquez-Tokos and Yamin Reference Vasquez-Tokos and Yamin2021). However, American Indian child removals also served a settler colonial purpose: the elimination of Native Nations and the freeing up of tribal lands (Rocha Beardall and Edwards Reference Rocha Beardall and Edwards2021). Historically, the U.S. settler state has used varied tactics to achieve these goals including warfare, coercive treaties, the reservation system, and allotment (Bruyneel Reference Bruyneel2007; Fenelon Reference Fenelon2016; Wilkins and Lomawaima Reference Wilkins and Lomawaima2001).Footnote ² By severing children’s ties to their tribes, child removals aimed to eliminate children’s cultural and emotional connection to their communities (Jacobs Reference Jacobs2009). By assimilating children into white families and the settler state, child removals sought to ensure that there would be no future generations of Indigenous children to govern Native Nations or hold claim to tribal lands (Jacobs Reference Jacobs2009; Rocha Beardall and Edwards Reference Rocha Beardall and Edwards2021). In other words, these practices both involved white property claims to Native children and used those children to make white property claims to Indigenous lands.

In the 1960s and 1970s, American Indian advocacy organizations challenged child removals as a threat to the cultural and political future of Native Nations (Cornell Reference Cornell1990; Wilkinson Reference Wilkinson2006). Responding to their calls for the settler state to honor tribal sovereignty over child welfare, Congress passed ICWA in 1978. While child removals and other settler colonial projects framed Native Nations as racialized minorities, ICWA recognizes Native Nations as sovereigns (Linjean and Weaver Reference Linjean and Weaver2023). ICWA requires that tribes be notified when a child welfare investigation involves an Indian child and empowers tribal social services and courts to assume jurisdiction over child welfare cases involving Indian children. It also specifies placement preferences should removals be required, prioritizing placement with extended family and other tribal members. Importantly, ICWA applies to all child welfare cases involving children who hold or are eligible for citizenship in a federally recognized tribe.

ICWA has proven most successful at limiting child removals, particularly where state institutions honor the law’s imperative to facilitate tribal jurisdiction over child welfare (Brown Reference Brown2020; Bussey and Lucero Reference Bussey and Lucero2013; Linjean and Weaver Reference Linjean and Weaver2023). Eight states have passed laws that go beyond federal requirements to uphold tribal jurisdiction in child welfare (Tiano Reference Tiano2023), and many tribal governments have built robust social services programs with case management procedures designed around unique tribal needs (Belone et al. Reference Belone, Gonzalez-Santin, Gustavsson, MacEachron and Perry2002). Still, ICWA has faced resistance from many corners, including biased caseworkers and state courts reluctant to cede jurisdiction to tribal courts (Brown Reference Brown2020).

This piecemeal resistance has circumscribed ICWA’s reach, but since 2013 the law has faced another challenge. A coalition of conservative and libertarian think tanks, private adoption agencies, fossil fuel interests, anti-treaty rights organizations, and corporate law firms have mobilized to have ICWA ruled unconstitutional, with one case reaching the U.S. Supreme Court in 2024 (Dewan and Israel Reference Dewan and Israel2016; Harper and Phelps Reference Harper and Phelps2021; Nagle Reference Nagle2022b; Pember Reference Pember2019). While private adoption agencies initiated this legal mobilization (Berger Reference Berger2015), the campaign’s leading force is the Goldwater Institute (GI), a conservative think tank that works to protect private property rights. GI’s efforts are buttressed by a range of other organizations invested in shoring up private property rights and the fossil fuel industry, such as the CATO Institute and Texas Public Policy Foundation. The litigators include conservative lawyers who also represent fossil fuel and anti-sovereignty interests (Nagle Reference Nagle2022b). The campaign makes a range of arguments, but its primary claim is that ICWA is an unconstitutional race-based law.

These players are unified by a material stake in ICWA’s dissolution. Like historical family separations, this legal mobilization is deeply connected to property rights and the property interest in whiteness. First, each case in the campaign involves non-Native families seeking custody over an “Indian child” and challenging ICWA as an unfair barrier. In other words, in these cases, a group of largely white settler families are mobilizing the law to protect what they perceive as a property entitlement to Indigenous children. As I will show, these families claim that ICWA discriminates against them, as non-Natives. Second, the organizations behind the campaign have property interests in ICWA’s demise. As Berger (Reference Berger2015) explains, private adoption agencies experience a high demand for adoptable children. ICWA’s stipulations make it difficult for them to arrange the adoption of Indian children by white families. ICWA’s end would facilitate white families’ adoption claims on tribal children while increasing profits for private agencies.

The property interests in this legal mobilization extend beyond rights to children. Relying on a longstanding settler colonial trope of racialization (McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020), the campaign asks the courts to rule that ICWA does not confer rights to sovereigns but to a racial group: Native Americans. Such a ruling could have implications for federal Indian law writ large. In addition to child welfare, federal Indian law currently grants land, natural resources, gaming, fishing, and other rights to Native Nations based on the recognition of tribes as sovereigns. Should the courts declare that ICWA grants child welfare rights based on race, that could open the door for legal challenges to all federal Indian rights (for further explanation, see Litman and Fletcher Reference Litman and Fletcher2020; Nagle Reference Nagle2022a). The potential implications for property rights are vast. There are 56.2 million acres of tribal lands in the United States. These lands hold an estimated $1.5 trillion in fossil fuel resources (Lambert Reference Lambert2022), including 50% of U.S. uranium reserves and up to 20% of natural gas and oil reserves (Grogan Reference Grogan2011; LaDuke Reference LaDuke2016). Because tribal land and resource rights are based on the recognition of tribal sovereignty, these resources are inaccessible to outside interests absent consent from tribal governments. A victory for the anti-ICWA campaign could enable broad settler property claims on these material resources and open them to deregulation, private acquisition, and profit (Nagle Reference Nagle2022a; Pember Reference Pember2019). As with historical child removals, the anti-ICWA campaign uses Indigenous children to protect white property.

Methods and Data

In this article, I excavate the legal architecture of this campaign. How do ICWA opponents structure their challenges to the law? On what ideological premises do their claims rest? Since language is critical to power, the law, and legal mobilization (Edelman et al. Reference Edelman, Leachman and McAdam2010; Fenelon Reference Fenelon2017; Go Reference Go2018; McCann Reference McCann2006; Robertson Reference Robertson2015), I use a content analysis of legal materials to answer these questions.

My analyses involve two types of anti-ICWA campaign documents. First, I collected and analyzed documents filed by ICWA opponents across the major court cases at the center of the campaign. ICWA has faced individual legal challenges since its inception, but the contemporary legal mobilization against ICWA started with a 2013 Supreme Court case: Adoptive Couple v. Baby Girl (Berger Reference Berger2019). Given my interest in the contemporary and organized anti-ICWA campaign, I limited my analysis to that case and others filed after it.

I relied on existing databases to identify the cases that comprise the legal mobilization under study. First, I consulted the American Bar Association (ABA) which has been tracking legal challenges to ICWA since Adoptive Couple. Second, I consulted the GI’s website which lists the organization’s legal cases and includes case summaries and legal filings from the cases in which GI has assumed a significant role. Third, I consulted Turtle Talk (TT), the official blog of the Indigenous Law and Policy Center at Michigan State University. TT is a leading resource on Indigenous law. Its contributors have closely monitored the contemporary anti-ICWA campaign and curated a collection of legal materials associated with each case.

This process yielded 18 cases for analysis, but I excluded 1 because no campaign-specific documents were available to code. This yielded a final dataset of 17 cases. The cases cover the period of 2013–2023, the formative years of the campaign. While the dataset does not include cases in which anti-ICWA organizations consulted off the record, it is the full universe of cases in which the major players in the legal mobilization made public, on-the-record challenges to ICWA and for which the campaign’s challenges are publicly available.

Using GI, TT, WestLaw, and other legal databases, a research assistant and I then downloaded legal documents for each case. Because my interest was in how the anti-ICWA campaign frames its challenges, my dataset does not include rulings. Rather, it includes documents authored by ICWA opponents and submitted to the court for consideration. This set of documents includes those authored by institutions behind the anti-ICWA campaign (e.g. GI, the Project on Fair Representation, the CATO Institute, the Citizens for Equal Rights Foundation, the Texas Public Policy Foundation, etc.) and those authored by individual plaintiffs who were represented or otherwise backed by these organizational entities. In addition, GI publishes “backgrounders” and case summaries for many of the ICWA cases in which it has been involved. Where available, I also downloaded and coded these files as part of the records for individual cases.

Some of the cases under analysis proceeded through multiple courts on appeal. In such instances, I only analyzed the materials from one court, unless there were documents that differed substantially from one appeal to the next. For example, Brackeen v. Bernhardt (2019) was originally heard in a Texas District Court before being heard in the Fifth Circuit Court of Appeals. That court then heard the case en banc. In this situation, I coded the documents from the original Fifth Circuit Court case. Most of the en banc briefs were nearly identical to the original Firth Circuit briefs. Therefore, I excluded them from the analysis. I did, however, include one en banc brief because it differed substantively from the other documents under study.

Second, I analyzed documents from the GI’s Ensuring Equal Protection for Native American Children website. As noted, GI is widely recognized by the media and legal experts as the central player in the current legal mobilization against ICWA(American Bar Association Reference American2017; Berger Reference Berger2019; Brown Reference Brown2019; Clarren Reference Clarren2017; Dewan and Israel Reference Dewan and Israel2016; Native American Rights Fund 2024; Pember Reference Pember2019). Since launching its efforts, the organization and its staff (including lead ICWA litigators, Ali Dynar and Timothy Sandefeur) have authored a range of public pieces about ICWA and GI’s interventions. These include press releases, law review articles, blog posts, journal articles, and formal reports. GI has circulated these publications via its website and through other conservative and libertarian think tanks and media circles. The organization’s website maintains a list of these publications with links. I downloaded and analyzed each of these documents. All told the court case files (52) and GI documents (14) yielded 66 documents for analysis.

These materials offer multiple benefits. The dataset of legal materials illuminates the campaign’s appeals to the state. They reflect normative ideas about ICWA and the authoring organizations’ beliefs about which arguments will most likely receive a sympathetic court response. The GI materials illuminate the organization’s broader framing appeals. Circulated online, published on conservative and libertarian websites, and appearing in online journals, these documents allow me to assess how the organization frames its anti-ICWA appeals for broader audiences. In other words, the legal files reveal how these organizations read the interests of the state while the other materials highlight how GI reads the interests of the public.

To code these materials, I followed principles from qualitative data analysis including grounded theory (Charmaz Reference Charmaz2014) and the living codebook approach to qualitative data collection and analysis (Reyes et al. Reference Reyes, Bogumil and Elias Welch2021). First, I read each document and wrote memos about apparent patterns and the relationship between the data and existing theory. I then created a coding scheme of 15 codes informed by these memos. Second, I coded the documents in MaxQDA. As I coded, I used the memo and comments functions in the software to refine the codes. At the end of this process, I again engaged with existing settler colonial and critical race theory to develop a final set of codes (erasure, settler normativity, reclassification, and colorblindness) and subcodes. The results reported in this manuscript are the result of the third round of coding which used this final coding scheme. The Methodological Appendix contains a full list of documents in the dataset, a full list of court cases analyzed, and the coding scheme.

Each court case in this dataset is distinct in terms of its specifics and the number and type of documents. Likewise, these cases were tried in different courts and reached different stages. This creates variation in the quantity and type of documents available for each case. This diversity prevents meaningful quantitative comparison across cases or files. In what follows, I present qualitative findings from this analysis.

Erasure and Ignorance

The first foundational maneuver in these court cases is erasure, a core strategy of settler colonialism. To secure a territorial base, settler colonialism demands the elimination of Indigenous populations and uses military, conceptual, ideological, and other techniques of “transfer” to remove Indigenous peoples from their lands and from the consciousness of settlers (Fenelon Reference Fenelon2016; Tuck and Yang Reference Tuck and Yang2012; Veracini Reference Veracini2010; Wolfe Reference Wolfe2006). These transfer techniques include genocide and assimilation, but they also include the denial of settler colonialism as a power structure and the obfuscation of settler violence (Steinman Reference Steinman2016). As Dahl (Reference Dahl2018:4) notes, this disavowal “is an active refusal to historically and ethically grapple with the presence and claims of Indigenous peoples [and] colonial violence.” Settlers strategically redirect and deny historical and contemporary colonial domination via “moves to innocence” that “attempt to relieve the settler of feelings of guilt or responsibility without giving up land or power or privilege” (Tuck and Yang Reference Tuck and Yang2012:10). Like white racial ignorance (Mills Reference Mills, Sullivan and Tuana2007), this erasure is less a lack of knowledge than an active and intentional cultivation that delegitimizes Indigenous sovereignty, naturalizes settler domination, and masks settler complicity in it (Sabzalian Reference Sabzalian2019; Sullivan and Tuana Reference Sullivan and Tuana2007).

The campaign uses two primary strategies of erasure in their legal filings and public materials. The first is the complete elision of tribal dispossession and the settler colonial child removal practices that precipitated ICWA. Of the documents in my sample, slightly over half contained no historical background whatsoever on the settler colonial history child removals. Instead, these filings, briefs, and arguments start the clock of history at the day that child protective services removed a particular child – the subject of the proceedings – from their home. In other words, the documents call for an end to ICWA without addressing its goals or the history that drove the policy’s passage. The remaining half of the documents contained no more than two sentences of background. These brief mentions constitute a second erasure tactic: the strategic obscuring or downplaying of settler colonial power.

It is possible that the campaign faced length constraints that hindered its ability to discuss historical background. Two different patterns suggest that the limited historical discussion is instead an active strategy of erasure. The first concerns amicus briefs (26 of the legal documents in my sample). Despite the lack of length constraints on such documents, none discuss the tribal dispossession that precipitated ICWA. This contrasts with pro-ICWA amicus briefs which typically do address this history. This contrast is particularly telling in one case: In re C.J. (2018). In their pro-ICWA amicus brief, the National Congress of American Indians and the National Indian Child Welfare Association discuss ICWA’s origins in the settler colonial history of tribal elimination. In response, the Guardian ad Litem (represented by GI) chides these leading Indian advocacy organizations for mentioning this history, arguing that history “is simply not at issue here” and “while U.S./tribal relations includes much that is deplorable” that history is immaterial to the case (L27:1,3).Footnote ³ This argument suggests that the campaign’s silence on historical context is an intentional legal strategy rather than an artifact of document length.

A second pattern further buttresses this conclusion. At times, ICWA challengers do offer a brief discussion of historical context. However, when they do, they present a circumscribed history that depicts child removals not as a foundational strategy of settler colonial domination but as a brief, often inconsequential blip in an otherwise mundane and peaceful history of tribal-settler relations. This approach often takes the form of a truncated, standardized sentence that notes, as one document does, that the law was designed to prevent “the removal, often unwarranted, of [Indian] children from [their birth parents] by nontribal public and private agencies” and their placement “in non-Indian foster and adoptive homes and institutions” (L41:7). The historical retellings in these documents note the abusive actions of “state officials” but are typically couched in conditional language (G12:20). For example, in one document the GI characterizes child welfare agencies as “sometimes [taking] a jaundiced view of Native American culture and tradition” and states that child welfare “agencies were accused of taking Native children away from their parents for insufficient reasons and depriving the parents of fair legal proceedings to challenge those actions” (G12:16, italics mine). Elsewhere Goldwater notes that child welfare agencies “took Indian children from their parents, sometimes on flimsy pretexts” (G13, italics mine). These recountings depict child removals as an occasional occurrence, carried out by a few problematic individuals. By referring to unjust removals as mere “accusations” and using passive voice, the documents obscure the history of tribal activism that led to ICWA’s passage and insinuate that state and private officials were justified in forcibly removing Indian children. This erasure separates the cases in this campaign from the history of genocide, violence, and settler colonialism of which they are a part.

Only one document in my sample does not engage in this type of erasure. Unlike others in the sample, the piece, authored by the GI, notes “the deplorable legacy of abuse and betrayal, mutual incomprehension and prejudice that has plagued relations between Indians and non-Indians in North America” (G11:2). The report proclaims that this history “played a prominent role in ICWA’s origin,” but fails to explain that child removals were part of termination-era policies designed to destroy tribal sovereignty and eliminate Native Nations. Moreover, the report uses this historical acknowledgment as a “move to innocence” (Tuck and Yang Reference Tuck and Yang2012:1), switching gears from a brief historical paragraph to 36 pages of material that frame ICWA itself as a cause of settler colonial child removals (“It is tragic that these problems persist to this day – and that ICWA is partly to blame.”) rather than presenting ICWA as a challenge to them (G11:2). Further, only one version of the report contains this symbolic nod. The Institute also produced another report version that contains no background.

Erasure is strategically important for this anti-ICWA mobilization. It separates ongoing child removals from their historical context, concealing the dynamics of land, power, and dispossession behind them. Ignoring this history allows ICWA opponents to frame their legal cases as solely about individual children rather than domination and genocide. Further, this erasure obscures any material or symbolic interests that ICWA opponents may have in the outcome of these cases. This distancing is critical for the next element of the anti-ICWA legal architecture: settler normativity.

Settler Normativity

The second campaign maneuver – settler normativity – builds on this erasure by centering the norms, emotions, and judgments of settlers. Treating settler perspectives and experiences as normative allows for the institutionalization and maintenance of settler privileges (Steinman Reference Steinman2022). Foundational to this process is the construction of dualities that frame colonizers as superior, civilized, and moral and the colonized as inferior, primitive, and immoral (Cornell Reference Cornell1990; Jacobs Reference Jacobs2009; Robertson Reference Robertson2015; Rocha Beardall and Escobar Reference Rocha Beardall and Escobar2016; Saito Reference Saito2020; Veracini Reference Veracini2010). These racialized characterizations extend to forms of social and political organization (Dahl Reference Dahl2018). As in the boarding school era, the glorification of settlers is accompanied by the glorification of the settler state as just and caring (Chubin and Ramirez Reference Chubin and Ramirez2021). Conversely, Indigenous forms of political organization are construed as incompetent and problematic (Berger Reference Berger2019; Rocha Beardall and Escobar Reference Rocha Beardall and Escobar2016). Settler normativity frames settler brutality and dispossession as benevolent efforts to replace Indigenous societies and institutions with better ones (Dahl Reference Dahl2018; Fenelon Reference Fenelon2016).

The anti-ICWA campaign uses these racialized tropes to justify the campaign’s critiques of ICWA and demand that settler families be able to adopt Indian children. These characterizations are most evident in its public-facing materials which include sensationalist coverage of rare worst-case child abuse scenarios on Native lands. As their titles suggest, two documents produced by the campaign epitomize this trend. The first, “Death on a Reservation,” introduces a single story of an Indian child who died due to the neglect of her tribal guardians (G3). The publication includes a photograph of a graveyard, presumably on Indigenous lands, used to emphasize the dangers faced by children living with Native families. Another photo shows a child in a dilapidated structure wearing ill-fitting clothes and sporting mussed hair. These images prey on racialized stereotypes of Indian families and lands as derelict, dangerous, and incapable of fostering the healthy growth of children. The campaign uses these images and stories to make emotional pleas for an end to ICWA which, they claim, enables abuse by entrusting Indian families with children.

The second publication, “Suffer the Little Children,” highlights a small collection of harrowing stories, selected for shock value, that depict Indian parents as alcoholics, child molesters, and drug abusers. It declares that “ICWA “forces state child protection officers to return abused children to the parents who have mistreated them” and that being with tribal families means these children will “only suffer more” (G12:16). Combined with carefully selected statistics that frame tribal communities and families as impoverished, dangerous, and neglectful, these characterizations lead to one of the document’s conclusions: that ICWA must be overturned because it demands that “Indian children must be returned to abusive families time and again” (G12:17).

The campaign’s court case files are also built around this “negative credentialling” of Indian parents and extended families (Rocha Beardall and Escobar Reference Rocha Beardall and Escobar2016). The campaign’s depictions of birth parents stress drug addictions and incarcerations, framing Indian families as reckless, irresponsible, and dangerous risks to their own children. These characterizations racialize Native families as unfit and unloving. In two of the highest profile ICWA cases, anti-ICWA actors portray a Native parent or extended family member as absent and disinterested, even when clear evidence demonstrates the opposite. In Adoptive Couple, attorneys characterized father, Dusten Brown, as a deadbeat dad, despite his close relationship with his daughter (Berger Reference Berger2015). In Brackeen, attorneys based their case, in part, on the claim that a Native grandmother’s foster care license had been revoked and that she had stalled in her attempts to adopt her grandchild. In actuality, the grandmother’s license had not been revoked, and it was the child’s white foster family who delayed the grandmother’s adoption when they sued the county (Nagle Reference Nagle2021). Across the data, the only times that the anti-ICWA campaign frames an Indian adult in a positive light is when discussing someone who is taking a public stance against their tribes or against ICWA.

These negative characterizations are paired with the consistent characterization of tribal governments and institutions as feckless, untrustworthy, and self-serving. These characterizations often arise when a tribal government learns belatedly that one of their citizen children is in state custody, in violation of ICWA, and seeks to intervene. These delayed interventions are usually the result of state agencies failing to notify tribes of the situation (Brown Reference Brown2023; Bussey and Lucero Reference Bussey and Lucero2013), but the anti-ICWA campaign attributes the lack of early tribal involvement to tribal incompetence and disinterest. In one typical example, a document argues that a “tribe had shown no interest in the twins while they were in foster care. But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation” (G3:3). Claims such as these frame tribal governments as power-hungry and reckless when it comes to the welfare of children.

Because these delayed interventions mean that a child is in state-appointed foster care when the tribe intervenes to invoke ICWA, applying ICWA requires that the child be removed from that foster care arrangement and placed according to ICWA’s preferences. When these shifts occur, the campaign frames tribal governments as scheming to remove children from what are typically white settler foster homes, “forcing” the children to live “with strangers [they’ve] never met on a reservation [they’ve] never even visited” (G4). Moreover, the campaign uses forceful language to portray tribal governments as acting in their self-interest and knowingly putting children at risk by sending them to live with incapable and dangerous Indian families. In making these claims, the campaign’s attacks often center on tribal courts, framing them as acting “without regard to the geographical and constitutional limits on their jurisdiction” and as devoid of any meaningful constitutional protections (G13; L26:17; L31:15). For example, a brief jointly authored by four organizations claims that tribal court tribal courts lack due process protection and appeal rights and that the Bill of Rights does not apply in tribal courts (L7:14). Such characterizations echo longstanding efforts to delegitimize tribal courts, characterizing them as biased and incapable of providing fair judgment to settlers, despite ample evidence to the contrary (Berger Reference Berger2006; Rocha Beardall and Escobar Reference Rocha Beardall and Escobar2016).

These negative characterizations of tribal institutions and individuals contain assumptions about the benevolence and competence of the settler state. The argument about tribal courts attempting to place children with “strangers” is one illustration. These arguments celebrate the white foster families selected by the state and belie the fact that when the state removed these children in the first place, they were also placing children with families they had never met. The documents further nod to the benevolence of the settler state by characterizing state officials as “seeking to rescue Indian children from dangerous homes” (L24:11). They claim that ICWA, by prioritizing placements with Indian families and tribes, “restricts the state’s ability to protect Indian children from unfit parents” (L7:24). These arguments assume the incompetence and immorality of Indian families and institutions. In a further example of erasure, they also glorify settler families and the settler state, despite their histories of abusive and racist child welfare practices (Roberts Reference Roberts2002; Reference Roberts2022).

This state glorification is grounded in the veneration of a core settler principle: individual rights. The anti-ICWA campaign asserts that any policy that privileges group interests, including the sovereignty of tribal governments, is necessarily problematic. Drawing on the very language that justified early child removals, campaign documents claim that, because ICWA honors tribal sovereignty, Indian children under ICWA are “deprived of any individualized determination of [their] fate” or “individualized consideration of [their] personal best interests” (L24:4; G11:13). Laying bare the settler colonial intentions of these appeals to individual rights, “Death on a Reservation” proclaims, “You can’t permit something like tribal sovereignty … to trump the fundamental rights of American citizenship. The rights are individual rights. They are not collective rights” (G3:4). Based on this settler normativity, the campaign goes on to repeatedly refer to child welfare under ICWA as “substandard” and “less protective” because it prioritizes placements with families and tribes assumed to be abusive (see e.g. L21; L23; L35; L37). These claims assume that abuse and neglect are normative in tribal communities and that the state-run child welfare system provides better care. They also assume that tribal sovereignty itself maintains child abuse and neglect.

In a final move of settler normativity, these cases uphold white settler families as ideal parents. In earlier eras of Indigenous child removals, settlers routinely characterized Indigenous women as bad mothers unable to care for their children and white motherhood as loving and caring. These twin ideologies justified the adoption of Indigenous children by white settler families who were presumed to be in the “best interests of the child” (Jacobs Reference Jacobs2009; Reference Jacobs2014). These arguments arise in today’s anti-ICWA campaign. While the campaign characterizes tribal foster families and extended kin as “strangers,” it characterizes white foster families as “loving, caring foster parents who wish to provide [a child] with the family stability he needs” and argues that Indian children “flourish” in their care (L10:13; L23:1, 5, 10, 14, 22). Elucidating this trend, one legal brief describes a foster family as

Across multiple documents and legal cases, the campaign refers not to “Indian children and their state-appointed foster families” but rather to “Indian children and the adults who love them,” implying that real love only comes from non-Indian families (see, e.g. L13:15).

Echoing narratives of white saviorhood (Mills Reference Mills1997), these stories portray white families as the saviors of Indian children. As one GI publication proclaims, “ICWA’s anti-adoption rules are so burdensome that foster families who might otherwise offer homes to kids in need choose not to… lest they become attached and then suffer the agony of separation…” In other words, if ICWA remains law, then white families will not want to adopt Indian children. If asked to foster Indian children, white families are likely to say “‘Nope. Nope. Nope” (G13). Echoing the racialized child-saving narratives used to justify termination-era child removals (Rocha Beardall and Edwards Reference Rocha Beardall and Edwards2021), these claims center the emotions of white settler families, portraying them as the ones most willing and able to “rescue” Indian children from the families and tribes who have purportedly abandoned and neglected them.

These racialized constructions of settler superiority and Indigenous inferiority work to produce settler logics of and claims to possession. Settler normativity produces a sense of entitlement to ownership (Moreton-Robinson Reference Moreton-Robinson2015; Willmott Reference Willmott2022). In the anti-ICWA campaign, settler normativity enables white settler claims to Indigenous children as property, framing white settlers as saviors to Indigenous children. The very claims made by white families in these cases evidence a property interest in whiteness. White families stress the injury caused to them by not being permitted to adopt an Indigenous child they fostered temporarily. As one parent notes in Death on a Reservation, “[It’s] been like a death. It’s been really difficult, and it’s a helpless feeling because we can’t do anything.. It’s like ‘poof. She’s gone” (G3:8). Describing another white foster family, one opening brief laments that, under ICWA, this “‘mommy’ and ‘daddy’… could do nothing to … [make] their family permanent in the eyes of the law” (L17:21). Perhaps the clearest illustration of white entitlement to tribal children comes from the Brackeen case where families claimed that not being allowed to adopt Indian children was a violation of their constitutional rights (Nagle Reference Nagle2021). Centering settler emotions and norms, the anti-ICWA campaign mobilizes to protect white property interests in Indigenous children behind the guise of humanitarianism.

Reclassification

Erasure and settler normativity lay the groundwork for a third campaign maneuver: reclassification. Native Nations are sovereigns, but settler colonialism reduces this wide and diverse range of polities, culture, and networks into a single racial category based on stereotypes about biology and culture (McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Saito Reference Saito2020). As Steinman (Reference Steinman2022) explains, reclassifying “Indian” as a racial category furthers settler colonialism in at least two ways. First, it buttresses settler normativity by permitting the racialization of Indigenous populations as inherently uncivilized, violent, and inferior, thus justifying dispossession and elimination (Saito Reference Saito2020). Second, racialization erases the sovereign status of Native Nations, subsuming them under the settler state as a single minority group (McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020:4–5).

The anti-ICWA campaign is grounded in these same racialization processes. ICWA treats “Indian” as a citizenship category and defines an “Indian child” as someone with membership in or eligible for membership in a federally recognized tribe. That is, ICWA treats “Indian” not as a race but as a citizenship category whose boundaries are set by self-governing Native Nations. The anti-ICWA campaign, however, recharacterizes “Indian” as a race. For example, the campaign repeatedly argues that Indianness is defined by biological ancestry. Across the data, ICWA challengers use the term “ancestry” 331 times (76% of documents) and the word “blood” 217 times (65% of documents) to define or characterize the term “Indian.” They also use terms like DNA (39% of documents), genes (27% of documents), or genetics (33% of documents). These documents routinely refer to children as having “Indian blood,” “Indian ancestry,” or DNA or genetics that are “Indian.” This language is used to assert that biological markers are both the basis of Indianness and the basis upon which ICWA grants protections. For example, in a piece published by the CATO Institute, a lead campaign attorney argued that ICWA “dictates the rules by which foster care, adoption, and other child-welfare proceedings are handled when a child has Native American ancestry” (G8). The piece goes on to argue that, under ICWA, “when an abused or neglected child has Indian blood in her veins, tribal officials anywhere in the country can order her case sent to that tribe’s court” (G8). This framing assumes that tribal courts are inferior. It also reclassifies “Indian” as a biological status based on blood rather than as legal citizenship in a Native Nation. As a result, it insinuates that ICWA’s protections apply based on biological race – itself a long-debunked ideology – rather than citizenship. In other documents, the anti-ICWA campaign deepens these claims of biological Indianness by asserting that Indian children are “one genetic class” and that “a child with the right DNA is an ‘Indian child’” (G12:17: L7:28).

By contrast, the words “tribal citizen” or “tribal citizenship” appear in only 6 of the 66 documents (9%). The terms “tribal member” or “tribal membership” appear 322 times; however, the terms are typically used to make the argument tribal membership is based on blood and biological ancestry and is, therefore, a racial category. In multiple documents and court filings, the campaign references “the racial categories ICWA imposes” and “ICWA’s racial nature” (G11:24; G6; L5). The campaign goes on to assert that eligibility for membership in all 500+ Native Nations in the United States is “solely a function of genetics” and based on “biological ancestry” (G5; G6; L17:9; L23:17-18). Summarizing this claim, a report published in multiple formats by the GI argues, “Eligibility for tribal membership universally depends on biological ancestry. It follows syllogistically that ICWA applies to a racial group consisting of Indians” (G11). This characterization of tribal citizenship rules is wholly inaccurate. In the early twentieth century, the federal government forced tribes to restrict membership based on blood quantum or descent from individuals on colonial federal created to facilitate Indigenous elimination (TallBear Reference TallBear2013). Some of these citizenship requirements persist, but many tribal governments have adopted citizenship rules that do not depend on settler colonial measures of blood quantum (Rodriguez-Lonebear Reference Rodriguez-Lonebear2021). The blanket assumption that tribal citizenship is a racial classification is not an accurate reflection of tribal membership regulations but rather a continuation of settler colonial efforts to eliminate American Indian tribes by way of reclassification.

This reclassification of “Indian” as a race is furthered by the campaign’s move to discuss “Indian” in tandem with categories widely recognized as racialized. For example, one early campaign publication argues that, due to ICWA, “Decisions about [this child’s] future would not be made by her mother… or by her caring adoptive family… as would have been the case if [the child] were white, or black, or Hispanic, or Asian. Instead, her fate would be decided by an Indian tribal government, because of her genetics” (G5). As the campaign progressed, its lead attorneys and supporters continued to compare the protections afforded to Indian children under ICWA to the child welfare process for children racialized as white, Black, Hispanic, or Asian.

By equating Indian with racialized categories, the campaign deepens its racial reclassification, setting the stage for its primary line of attack on the constitutionality of ICWA. Indeed, the transformation of “Indian” from a citizenship status to a racial one has important implications for this legal mobilization. While sovereign nations have a right to self-determination, racialized minorities are entitled to equal treatment under the law (Berger Reference Berger2019; Saito Reference Saito2020). The reclassification of “Indian” as a race, therefore, works to foreclose claims to sovereignty and the property rights that come with it. In other words, if erasure and settler normativity enable white property claims to the individual Indigenous children involved in the campaign’s cases, reclassification enables a push to undermine tribal sovereignty writ large by using colorblind ideologies to reframe ICWA as a violation of the Equal Protection Clause.

Colorblindness

These three strategies – erasure, settler normativity, and reclassification – enable a fourth and final maneuver from the anti-ICWA campaign: colorblindness. Colorblindness provides the basis for the campaign’s primary argument about ICWA’s constitutionality: that ICWA constitutes racial discrimination. On these grounds, the campaign asserts that ICWA should be overturned as unconstitutional.

Colorblindness posits that under no circumstances should race factor into the distribution of rights and resources. It frames any mention of race as discrimination (Haney López Reference Haney López2012). It mobilizes the language of equality, meritocracy, and individualism to challenge race-conscious remedies for racial inequalities and domination (Bonilla-Silva Reference Bonilla-Silva2006; Crenshaw et al. Reference Crenshaw, Gotanda, Peller and Thomas1996; Haney López Reference Haney López2007). Employed by individuals, policy elites, and the courts, colorblindness works to sustain racialized status hierarchies and power structures via appeals to “the rule of law” and “equal protection” (Crenshaw et al. Reference Crenshaw, Gotanda, Peller and Thomas1996).

Colorblindness has been central to the anti-ICWA campaign’s legal strategy. The campaign’s colorblind racism is evident in its repeated claims that ICWA is premised on race and, therefore, creates a segregated child welfare system. As framed in an early court case, the campaign asserts that “The Act defines ‘Indian child’ in terms of biology.… Then it establishes a separate and unequal set of rules for children of this one racial category” (G1). These arguments rely on reclassification to claim that ICWA is racially based and to draw parallels to Jim Crow segregation. Likewise, the campaign argues that white adoptive families want to welcome Indian children into their homes, “but their skin is the wrong color” (L30). The campaign even cites the Old Testament to argue that, “Interracial adoption is also an ancient practice. Moses was adopted by Pharaoh’s daughter … ICWA is … solely for the purpose of keeping racial groups separated” (L23:31). In addition to arguing that ICWA treats Indian children as “biologically beyond the pale of legal equality,” the campaign engages in consistent colorblind claims that ICWA should be struck down because all children deserve “equal protection” under the law (G1, G11:28, law review version).

This colorblindness depends on claims that ICWA is race-based and discriminatory, but also on appeals to key racial justice court cases. As the previous examples suggest, the campaign routinely harkens Brown v. Board and the unconstitutionality of the “separate but equal” legal doctrine. Documents routinely refer to ICWA as creating “two child welfare systems,” “a separate legal regime” or “system” and “de jure racial segregation” (see e.g. L10:1, 2, 5; L27:12). As the campaign argued in an Arkansas case,

Drawing on norms of settler saviorhood and racial reclassification, these arguments transform settler colonial interests into colorblind legal appeals.

The campaign also invokes key civil rights icons. Documents quote Martin Luther King, Jr., saying the campaign will not “sit idly by” in the face of racial discrimination (G8). In a report announcing the campaign’s federal lawsuit that ultimately landed in the U.S. Supreme Court, a lead attorney for the campaign draws parallels between Rosa Parks, Homer Plessy, and Indian children under ICWA, arguing that each faced unjust racial discrimination and a denial of equal rights under the law (G2). The campaign even draws comparisons between individual Indian children under ICWA and Japanese children during the World War II internments. Citing non-discrimination arguments in the Hirabayashi v. United States and Korematsu v. United States – which, ironically for the campaign, upheld the disparate treatment of Japanese Americans – ICWA opponents argue “that it’s wrong for Washington, D.C., to dictate its vision of what’s best for people based on race” and chastises ICWA for curtailing civil rights (G5; L24:25). The anti-ICWA campaign uses these appeals to frame themselves as acting in the name of racial justice while working to sustain racialized systems of domination.

These colorblind appeals to equal protection are also manifest in the campaign’s claims that the “non-Indian” (a euphemism for “white”) foster and adoptive parents involved in the campaign face discriminatory treatment under ICWA. As the GI articulates, “ICWA also deprives non-Indian foster and adoptive parents of their right to a legal process that takes no regard of their race or nationality” (G11:5). Across the data, the campaign asserts that parents “are subject to ICWA’s discriminatory preference scheme” which relegates “them to fourth-class status” as potential foster and adoptive parents (L6:21; L10:18). The campaign also draws on narratives of settler saviorhood to argue that these families “are being traumatized for no reason other than the vulnerable child they each welcomed into their family is classified … as an ‘Indian child’” (L6:4). Comparing white adoptive families to Homer Plessy, the campaign explains to the courts that: “.… He got to ride the train, but only in a segregated coach. The Plaintiffs here also got to ride the train and they reached their destination – but thanks to ICWA, they were required to do so in a separate legal “coach” – that is, under a separate set of rules that caused them injuries” (L18:1). The campaign marshals these claims of white settler injury to challenge ICWA as an unconstitutional violation of equal protection.

CRT has long theorized colorblindness, but recent interventions have called for greater attention to its material foundations (Bickham Reference Bickham2022; McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020; Patel Reference Patel2015). These ideological maneuvers epitomize the use of colorblindness to chastise racial discrimination while shoring up systems of racial domination. ICWA opponents accuse ICWA and its advocates of racially inequitable treatment while advocating for legal rulings that would sustain structural racism and settler colonial domination. The campaign uses colorblind appeals to legitimate white possession of Indigenous children, but it also marshals colorblindness to challenge ICWA’s constitutionality. Federal Indian law is premised on the sovereignty of Native Nations (Berger Reference Berger2019). Any ruling that federal Indian rights are based in race rather than sovereignty could shake these foundations and open the door for sweeping white settler property claims to Indigenous lands and resources. Colorblindness, in other words, is the maneuver that translates the campaign’s settler colonial infrastructure into a legal framework for tribal dispossession.

Discussion and Conclusion

Family separation has played a central role in the development of the modern American state and economy and in the construction and consolidation of the U.S. racial order (Briggs Reference Briggs2020; Roberts Reference Roberts2002). In the early years of the Republic, the separation of enslaved Black children from their families facilitated white political and economic domination (Roberts Reference Roberts2002; Reference Roberts2011). The forced removal of Indigenous children enabled the seizure of the land and resources necessary to establish a settler colonial state and privatized capitalist markets (Jacobs Reference Jacobs2009; Rocha Beardall and Edwards Reference Rocha Beardall and Edwards2021). Into the 20th century, the removal of immigrant children from cities and their transport to rural areas via “orphan trains” helped provide free coerced labor for white farm families while simultaneously addressing the assumed problem of growing urban immigrant populations (Gordon Reference Gordon1999; Rymph Reference Rymph2017). Today, family separation continues to buttress racial and settler colonial domination (Roberts Reference Roberts2002; Reference Roberts2011; Vasquez-Tokos and Yamin Reference Vasquez-Tokos and Yamin2021). Immigration and Customs Enforcement has separated Latinx families at the U.S.–Mexico border as a means of controlling immigration flows from Latin America and concentrating political power (Briggs Reference Briggs2020; Vasquez-Tokos and Yamin Reference Vasquez-Tokos and Yamin2021). These border separations have received ample public attention; however, the removal of children from their families also happens in bureaucratic ways through the U.S. child welfare system. Disproportionately targeting Black and Native American children (Wildeman and Emanuel Reference Wildeman and Emanuel2014), the child welfare system, much likely other state-led child removal efforts, uses family separation as a form of racialized social control and a means of racially concentrating economic profits (Briggs Reference Briggs2020; Roberts Reference Roberts2002; Reference Roberts2011; Vasquez-Tokos and Yamin Reference Vasquez-Tokos and Yamin2021).

Passed in 1978, ICWA aimed to end a particular form of family separation: the settler colonial removal of Indigenous children. Since 2013, however, the anti-sovereignty movement has made ICWA a target of its campaigns. This article examines a core focus of these efforts: the legal mobilization against ICWA. I find that the anti-ICWA campaign is grounded in three settler colonial maneuvers: erasure, settler normativity, and reclassification. These ideological maneuvers scaffold a fourth: colorblindness. The campaign uses these arguments to argue that ICWA constitutes racial discrimination against white foster and adoptive families and to challenge the law as an unconstitutional equal protection violation. These findings demonstrate how settler colonialism and colorblindness work interdependently to enable broad claims to and defense of white entitlement to property.

This case study demonstrates theoretical gains from bridging CRT, SCT, and legal mobilization scholarship. As conservative movements challenged movements for social justice, researchers have observed the use of “special rights” claims to voice resentment toward marginalized populations (Berger Reference Berger2019; Dudas Reference Dudas2008; Goldberg-Hiller and Milner Reference Goldberg-Hiller and Milner2003). CRT and SCT draw attention to the racialized material structures that produce this resentment and the associated ideologies that give it voice. They further suggest that conservative legal mobilization may be conceptualized as a predictable backlash that happens when white entitlement to property is under threat (Patel Reference Patel2015; Willmott Reference Willmott2022). The white foster and adoptive families involved in the anti-ICWA campaign express resentment toward a law that denies them what they see as an entitlement to assume custody over Indigenous children. Their claims are mobilized by conservative organizations dedicated to protecting property rights and dismantling legal institutions – like tribal sovereignty – that impede privatization. They marshal colonial and racial ideologies to make these claims, demonstrating that legal mobilization should be theorized both as a racialized process and as force in “racial formation” (Omi and Winant Reference Omi and Winant1994).

Legal mobilization scholarship has much to gain from incorporating insights from CRT and SCT, but the reverse is also true. Social scientists have been slow to integrate settler colonialism into the study of race and racism (for a critique, see McKay et al. Reference McKay, Vinyeta and Marie Norgaard2020). Instead, race scholarship, including CRT, has largely focused on studies of discrimination and colorblind racism (for critiques, see Goldstein Reference Goldstein, Molina, HoSang and Gutiérrez2019; Robertson Reference Robertson2015). These approaches overlook settler colonialism’s ongoing structure (Wolfe Reference Wolfe2006). They also sidestep questions about who profits from racism (Fenelon Reference Fenelon2017) and about the historical origins of contemporary racial meanings and structures (Go Reference Go2018). Legal mobilization offers an opportunity to theorize the interdependence of CRT and SCT. Studying how conservative movements mobilize and make sense of the law has the potential to illuminate the ideological and material forces that maintain the status quo. The anti-ICWA campaign reveals both how settler colonialism scaffolds colorblindness and how colorblindness enables settler colonialism as ongoing structure.

This article focuses on publicly available legal materials and on documents from the anti-ICWA legal mobilization’s leading organization. The campaign, however, is far deeper than this one organization and the 17 legal cases under study here. One shortcoming of the present study is its inability to examine the behind-the-scenes workings of this campaign. The focus on Goldwater also obscures what might be other ideologies at play in shaping the campaign’s anti-ICWA mobilization. Further, data limitations prevent me from examining how the campaign settled on these lines of argumentation and legal strategies. For example, my content analysis results revealed that the campaign also made arguments that ICWA unconstitutionally commandeers states’ rights and violates the commerce clause, alongside its equal protection arguments. However, these arguments proved far less central across cases and documents than did the equal protection challenge.

While my data do not allow me to understand why the campaign assumed the focus it did, the campaign’s embeddedness in a network of anti-diversity organizations offers some suggestions. A close look at the alliances behind the campaign indicates a tightly knit network of organizations working to challenge a wide range of policies created to address racial inequality and discrimination. Groups like the Project on Fair Representation, which has spearheaded legal attacks on affirmative action and voting rights, have filed amicus briefs supporting the anti-ICWA campaign. The lead anti-ICWA organization, the GI, has also long worked to challenge affirmative action and the Voting Rights Act (Brown Reference Brown2019; Dewan and Israel Reference Dewan and Israel2016). The campaign’s decision to challenge ICWA on equal protection grounds may well have been a strategic move to attract and unify supporters from across the conservative legal movement. Future research is needed to address precisely how these relationships and decisions shape the campaign.

The fact that the campaign’s melding of settler colonialism and colorblindness has attracted supporters from across the conservative legal movement suggests that SCT, CRT, and legal mobilization scholarship can be used together to understand a wide range of contemporary movements. Issues of race and property are implicated in legal mobilizations around residential zoning, environmental regulations, and other land use policies. SCT and CRT have the potential to further our understanding of how individuals and organizations mobilize the law to restrict rights to land and property for some while restricting it for others. The same can also be said for legal mobilization around education and restricting the franchise. Affirmative action, school district boundaries, voter identification, and voter districting are all contested and racialized arenas deeply intertwined with inequalities in access to material property and economic accumulation. CRT and SCT call on law and society scholars to examine how racialized and settler colonial ideologies of exclusion, power, and dispossession work to buttress anti-rights movements (Patel Reference Patel2015; Payne and Santos Reference Payne and de Souza Santos2020; Willmott Reference Willmott2022). Likewise, these theoretical traditions suggest the need to examine how these mobilizations affect not only legal rulings but also public understandings of issues like racial diversity and tribal sovereignty, potentially shifting the political and legal opportunity structure.

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 (Brown Reference Brown2020; Bussey and Lucero Reference Bussey and Lucero2013; Linjean and Weaver Reference Linjean and Weaver2023). 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 (Sandefur Reference Sandefur2023). 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.