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September 20, 2021
This Land
6. Trojan Horse

In This Episode

We know which law firms and think tanks are bringing these lawsuits, but no one has been able to figure out who’s funding them—or why—until now. 

 

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Transcript

 

Rebecca Nagle: Just a note before we get started, the stories we’re sharing this season, touch on different kinds of trauma. Please take care of yourself while you listen.

 

Darcy Olsen: My name is Darcy Olsen. I am mother to Ten Foster Kids, four forevers that I adopted.

 

Rebecca Nagle: Darcy Olsen is the former CEO of the Goldwater Institute, a right-wing think tank based in Arizona.

 

Darcy Olsen: And I was in a training class to become a foster parent. I was in just a typical licensing class and a slide came up. It was an old fashioned sort of overhead, and I’ll never forget it because it said all of these rights apply except for children under I-C-W-A. First I thought what is ICWA? And my second thought was, well, we all have the same rights under the Constitution. It can’t be right that there’s some subset of American children who don’t have equal rights. Like we’ve remedied this over the last 100 years in our country. Right? We’ve remedied this in so many ways

 

Rebecca Nagle: in the small cluster of right-wing organizations that have been attacking ICWA, the Goldwater Institute is leading the charge.

 

Darcy Olsen: So I jotted down some notes. I went back to my office at the time and I talked to my colleague and I asked him and I said I read about this and he said, let me look into this a little bit.

 

Rebecca Nagle: That colleague was a man named Clint Bolick, a big name in conservative circles. Before coming to Goldwater, he had run one of the country’s most successful conservative litigation centers.

 

Darcy Olsen: And when he looked into it, he became very incensed. He said, I worked on an issue years ago on, and we won, about not letting race enter the equation in adoptions. And so once I brought that to him and he realized the depth of what was going on, he wanted to take that on and took up the spear and really was an incredible warrior.

 

Rebecca Nagle: In 2015, the Goldwater Institute held a press conference to announce their newest initiative.

 

[clip of Clint Bolick] Good morning. I am Clint Bolick, vice president for litigation at the Goldwater Institute. It is a pleasure to join all of you.

 

Rebecca Nagle: A whole new project, to attack the constitutionality of ICWA.

 

[clip of Clint Bolick] I thought the problem was solved, that the pernicious practice of racial discrimination in adoption placements was consigned like other Jim Crow laws to the dustbin of history, and indeed it has been for all American children except Native American children. Not only for full blooded Native American children, but even for those with a tiny fraction of Indian blood sufficient for a tribe to claim them as their own. Not only for children who live on reservations, but even for those who have never set foot on a reservation.

 

Rebecca Nagle: After that press conference, Goldwater went looking for plaintiffs. They sent out a letter to foster parents saying they believed their constitutional rights may have been violated. Since then, Goldwater has represented parties in at least ten challenges to ICWA. Goldwater also started coordinating behind the scenes. Around 2015, their staff started emailing the attorneys general of Ohio and Arizona about big ICWA cases. It was the beginning of trying to get state AGs on board. And finally, in the Brackeen’s case, it worked. Last episode, we talked about how one high-profile ICWA case called Baby Girl kicked off a wave of litigation. Since then, ICWA has been challenged more times than the Affordable Care Act. And in almost all of those cases, Goldwater showed up. In getting the coordinated attack on ICWA off the ground, Goldwater did a lot of heavy lifting. Without them, it likely wouldn’t be where it is today. And that’s a little puzzling because for a long time Goldwater was focused on Arizona State politics. They didn’t have a track record with Native issues or child welfare. So why ICWA? It took the better part of a year for me to figure it out. But once I unlocked where Goldwater got the money to fight ICWA, everything came into focus. Not just the strategy of this one conservative organization, but the entire campaign to strike ICWA down.

 

You’re listening to This Land, a podcast about the present-day struggle for Native rights. From Crooked Media, I’m your host, Rebecca Nagle, [ᎪᎯᏂ ᏓᏆᏙᎠ. ᏣᎳᎩ ᎠᏰᎵ ᎨᎳ.] citizen of Cherokee Nation. This season, we’re following how a string of custody battles over Native children became a federal lawsuit that threatens everything from tribal sovereignty to civil rights. During our investigation, we followed the money. So far I’ve told you about the adoption attorneys and corporate lawyers working behind the scenes. This episode, we’re digging into the biggest pot of money yet, a whole universe of right-wing organizations, operatives and funding. And we finally answer the question, who is paying for the attack on ICWA, and why?

 

The Goldwater Institute is notoriously secretive. They fight laws that require organizations like them to disclose their donors, and they require their employees to sign NDAs just to work there. So uncovering why they wanted to attack ICWA was tricky. I downloaded thousands of pages of documents from the Goldwater website, made a spreadsheet of all their former employees and board members, with a fined-tooth comb, I went through their financial statements, tax filings, even their marketing materials. Our producer visited the Irish American Library, funded by a now-deceased board member, to ask the archivist if the collection included any of his personal papers. It did not. And so I started cold-calling people. We talked to that former CEO, Darcy Olson you heard from at the beginning, a former board member, and a total of five former employees. One of those former employees is Charles Siler, who worked there from 2013 to 2014.

 

Charles Siler: I am a former registered lobbyist with the Goldwater Institute, where I was an external affairs manager. And in that role, I worked on all sorts of projects with them, from school choice to different types of medical freedom issues that really just ran the gamut.

 

Rebecca Nagle, narrating: Seiler didn’t know why Goldwater decided to focus on ICWA.

 

Charles Siler: The best I can do is make what I would say is an informed guess based on my understanding of what I think that the donors ultimately want, what I think ideologically the institute is about—so with that understanding, my assumption about the intention of the case is to delegitimize Indigenous sovereignty, tribal sovereignty.

 

Rebecca Nagle, narrating: In other words, to weaken or get rid of the rights of Indigenous nations, of tribes.

 

Charles Siler: People always think, oh, if they like, like with ICWA, like oh, if they could beat ICWA, then that’s what they’re looking for. No, it’s not about OCWA. That’s just one step on this path. You have to look at what the other aims are. And so they all connect when really the aims are getting like diminishing government and ending taxation and just, you know, basically pushing us to completely laissez faire sort of place.

 

Rebecca Nagle, narrating: To figure out why Goldwater decided to focus on ICWA, I needed to answer another question first: who at Goldwater was calling the shots? As I poked around, I started hearing the same name over and over.

 

Charles Siler: Clint was someone who was highly respected well beyond the institute, and so that gave him a different sort of degree of freedom and whatnot in the institute.

 

Rebecca Nagle, narrating: Clint Bolick, the man you heard at that press conference, he was in charge of Goldwater’s litigation strategy at the time.

 

Charles Siler: He was definitely someone that was a fantastic person to have and raise the visibility, but also sort of the prestige of the institute. And donors had a lot of affection and appreciation of Clint’s worth.

 

Rebecca Nagle, narrating: After talking to Siler, Olson and other staff, it became clear Bolick was behind the wheel. He drove Goldwater’s decision to take on ICWA. And once we dug into Bolick, the campaign against ICWA started to make more sense because he spent his entire career fighting laws he says create racial preferences.

 

Theodore Shaw: The conservatives of the Reagan Justice Department era, the folks, the lawyers like Clint Bolick, began to talk about so-called reverse discrimination.

 

Rebecca Nagle, narrating: This is Theodore Shaw, law professor at the University of North Carolina and former president of the NAACP Legal Defense Fund. Shaw is a veteran civil rights lawyer and came up against Bolick a lot in the ’90s.

 

Theodore Shaw: There’s a long struggle about whether as a country, institutions and individuals ought to be able to take conscious actions to address racial inequality, with some people saying that any conscious actions can be equated to racial discrimination, the notion that race consciousness is by definition racial discrimination. Lawyers like Clint Bolick have basically pushed forward the thesis that we’re in post-racial America. I’ve often said that before we can get to post-racial America, we have to get to post-racist America. And I would say we’ve never been there.

 

Rebecca Nagle, narrating: ICWA opponents say the law violates this thing called the Equal Protection Clause. Basically, they say laws can’t treat people differently based on race, and that’s why ICWA is unconstitutional. Last episode I told you why the status of tribes and tribal citizens is different. But there’s this other thing you need to know: this idea that laws have to be race neutral or colorblind didn’t start with ICWA. During the 1990s, Clint Bolick, Paul Clement, and other conservative lawyers used the Equal Protection Clause to try and gut affirmative action. Bolick also fought voting rights, school integration and bussing, even the reauthorization of the 1964 Civil Rights Act, saying that all of it was reverse discrimination.

 

[clip of Clint Bolick] Well, I think that the United States government has been in the business of racial discrimination for too long. We have got to stop classifying people—

 

Rebecca Nagle, narrating: This is Bolick from a TV interview in 1996.

 

[clip of Jim Lehrer] You mean through affirmative action?

 

[clip of Clint Bolick] Through, well, through recently, but the fact of the matter—

 

[clip of Jim Lehrer] Discriminating against white people?

 

[clip of Clint Bolick] Right now, government discriminates against both Blacks and whites, depending on, depending upon the particular issue.

 

Theodore Shaw: If the Supreme Court were to make a decision which had the effect of limiting the ability of Indigenous people, Native Americans to prioritize the placement of those children in their communities, it fits into a paradigm in which conservatives have argued that white folks are victimized by so-called discrimination these days.

 

Rebecca Nagle: In the mid-1990s, Bolick turned his attention to Black children in foster care.

 

[clip of Clint Bolick] By telling you the story of little boy named Matthew, who we represent in Texas. Matthew is Black. He was taken into a foster home by a white parent and a Native American parent. They bonded, and when he was two years old, they expressed a desire to adopt him.

 

Rebecca Nagle: At the time, child welfare departments had started prioritizing placing Black foster children in Black homes. This is Bolick telling Congress why that policy was wrong:

 

[clip of Clint Bolick] Whereupon they were informed that they would not be able to adopt this little boy who considered them his parents, because he was Black and they are not.

 

Rebecca Nagle: It’s the same argument being made against ICWA today, that the law rips Native children away from loving homes.

 

[clip of Matthew McGill] Solely because the child they took in is an Indian child and they are not and cannot be because of their race. Indian families.

 

Rebecca Nagle: That’s the Brackeens’s lawyer, Matthew McGill, thanks to Clint Bullock today, it is illegal for social workers to prioritize placing Black foster children with Black families. A decade after the law was passed an adoption Institute did a study to see if the law improved the lives of Black foster children. In short, if they were spending less time in foster care. They weren’t. But the policy did benefit this other group of people, adoptive parents, the majority of whom are white. It made it easier for them to adopt children of color. In 2003, Ohio social workers asked a couple to prepare a plan on how they would create a safe and supportive environment for a Black child they wanted to adopt. For making that request, the state paid $1.8 million dollars in fines. Clint Bolick brought his lifelong crusade against so-called racial preferences to ICWA, and he used the same playbook, including his tactics, legal arguments, even his messaging. But our reporting found something that was even more surprising. Bolick also used the same source of money, and that was our biggest breakthrough, figuring out who funded Goldwater’s attack on ICWA. For a while, I couldn’t get any further than other reporters who unearthed the institute’s ties to the Koch brothers and other conservative donors. But no one knew who was paying for their anti-ICWA litigation. But finally, among all of the dead ends, a trail of circumstantial evidence emerged. It all pointed to one foundation, and lucky for me, that foundation got hacked. That story after the break.

 

Rebecca Nagle: In 2016, international hackers swiped the servers of a little known conservative family foundation in Wisconsin, the Bradley Foundation. While the Bradley Foundation doesn’t make a lot of headlines, it has a lot of money. Many years it gives out more funding than all of the Koch network combined. When journalists started going through over 70,000 thousand pages of leaked documents, they started to piece together Bradley’s strategy to change U.S. politics. Their theory is this: if conservatives can control state legislatures, governors, houses, and the courts, which party is in power in DC matters less and less. You might be familiar with Bradley’s work because they fund a lot of organizations that push state bills. So when a bunch of states passed the same law—like voter ID laws—often it goes back to the Bradley Network. In 2014, Bradley got a huge influx of cash, and they wanted to use it strategically, to build what they called conservative state infrastructure. So they sent out a request for proposals to selected leaders across the country. And one of those people was Clint Bolick. Bolick had an idea, he wanted to start a state-based litigation alliance so there wouldn’t just be coordinated bills, but coordinated lawsuits, lawsuits that would push a conservative agenda. Bradley gave Goldwater $350,000 in seed money to start that litigation alliance. At least one other conservative foundation kicked in money, too. And Goldwater got busy filing and coordinating lawsuits. And that’s how Goldwater’s attack on ICWA began. We cross-referenced what we found in the Bradley files with Goldwater’s financial statements and marketing materials, and confirmed it. With Bolick himself. It was this pot of money Goldwater used to fight ICWA. So Bradley’s goal wasn’t getting rid of ICWA or even tribes. ICWA was just on Bolick’s radar and became a stepping stone to build conservative power. As a Native journalist, this was almost worse than uncovering some plot to undo tribal sovereignty, because it means that this attack on ICEA, were the stakes are so high for Native families and tribes, is just collateral damage in a bigger conservative agenda. Bradley was the missing piece of the puzzle, and once we put it in place, it became clear that everyone attacking ICWA is connected. The Brackeen’s lawyer, Matthew McGill, the guy who runs the gaming practice he works under at Gibson Dunn is part of the Bradley Network. And Paul Clement, that lawyer we talked about last episode, now sits on the Bradley Foundation’s board. When you look at the people who are fighting ICWA, it’s a remarkably small group. In the Brackeens’s lawsuit, seven organizations opposed ICWA, five of them have received funding from the Bradley Foundation. So basically, there is a tiny network of people and groups who oppose ICWA with their hands in the same pot of money. But it’s enough money to get their case all the way to the Supreme Court. For perspective, in the Brackeen lawsuit, 26 states, 492 tribes, 77 bipartisan members of Congress and 87 organizations say ICWA is a good law. If you look at the big players in the attack on ICWA— Bolick, Clement, the Bradley Foundation, even Gibson Dunn—they are deeply invested in this idea, an idea that is bigger than the Indian Child Welfare Act, that policies that address structural racism shouldn’t exist.

 

Maggie Blackhawk: One could say, giving them the most generous interpretation of their efforts, is that they hope to have a world that is free of racial category because the way to solve racism is to stop talking about race.

 

Rebecca Nagle, narrating: This is Maggie Blackhawk. She’s a citizen of the Fond du Lac Band of Lake Superior Ojibwe and a law professor at NYU.

 

Maggie Blackhawk: Racism that is not talked about is not racism that is gone. It is just racism that exists without talking about it. It’s a very similar strategy and a very well-connected movement, and they’re bringing those sorts of challenges all over the place.

 

Rebecca Nagle, narrating: When you look at the people and organizations behind the big lawsuit, Brackeen v. Haaland, ICWA isn’t their only issue. They’re also busy attacking the Voting Rights Act, banning critical race theory from schools, fighting university admission policies that increase diversity, and even carving out religious exceptions so publicly-funded institutions can deny foster licenses to gay people.

 

Maggie Blackhawk: But they’ve also come to federal Indian law, in part because it does lack visibility and people don’t realize the amount of damage that it can do in this little technical area. If they’re successful in federal Indian law, it could be expanded elsewhere.

 

Rebecca Nagle, narrating: If you know, constitutional law like Blackhawk does, the potential fallout of these ICWA cases isn’t abstract, because what the US has done to violate Indigenous peoples rights has been used as precedent to violate other human rights.

 

Maggie Blackhawk: So it was actually relied on by the court to uphold the so-called travel ban or the Muslim ban. You have connections between the so-called Indian wars of the late 19th century, where the war powers were not limited by the law of war because the quote “laws of war do not apply to war with savages.” These same logics have been applied in the War on Terror most recently.

 

Rebecca Nagle, narrating: When most people look at the big federal lawsuit, they ask the same question: who should raise this toddler? A question that’s already been answered by that child’s finalized adoption. It’s a great distraction from the bigger legal issues at play. It’s the perfect Trojan horse. The Brackeens’s lawsuit, like all Supreme Court cases, is about more than one narrow story. It’s about whether or not the federal government has the authority to protect people from discrimination and abuse by state agencies like child welfare departments. It’s about whether or not white people like the Brackeens can use the Equal Protection Clause to claim reverse discrimination and strike down civil rights legislation. And it’s about the future existence of tribes, whether or not the United States will continue to fulfill its treaty obligations to Indigenous nations, or if the Supreme Court will wipe away that legal status with the stroke of a pen.

 

Maggie Blackhawk: But in a world where we have a constitutional democracy, and that democracy and those values are themselves incompatible with the violent dispossession of other people’s sovereignty and other people’s property and other people’s culture and even other people’s children. So to the extent that the United States furthers the colonial project by undermining tribal sovereignty today, weakens democracy for us all.

 

Rebecca Nagle, narrating: If the Brackeens’s case is really just a stepping stone to build conservative power, it’s working. It fits what the Bradley Foundation spelled out in their internal memos perfectly, that if you can control the states and the courts, what laws are passed by Congress matter less and less. The majority of US states and the overwhelming majority of Native nations support ICWA. If ICWA opponents wanted to take their issue to Congress to a vote, they wouldn’t get very far. So instead they took their issue to federal court, and there they are dangerously close to overturning a 40-year old law. Next time on This Land:

 

Matthew Fletcher: My stomach sunk into the floor and as I read, I realized that law doesn’t matter to judges, that it’s all politics. This is how close the end of Indian law is, that eight out of 16 judges in the 5th Circuit would throw the whole thing out the window in a heartbeat right now.

 

Rebecca Nagle: This Land is reported, written and hosted by me, Rebecca Nagle [ᎪᎯᏂ ᏓᏆᏙᎠ. ᏣᎳᎩ ᎠᏰᎵ ᎨᎳ.] citizen of Cherokee Nation. Additional reporting this season from Maddie Stone, Martha Troian, citizen of Obishikokaang Lac Sul First Nation and Amy Westervelt. From Crooked Media our executive producers are Jon Favreau, Sarah Geismer, Lyra Smith, and Katie Long, with special thanks to Alison Falzetta. From Critical Frequency, our managing producer is Amy Westervelt, our senior producer is Sarah Ventre, and our story editor is Rekha Murthy. Additional editing for Martha Troian and Pauly Denetclaw, who is Dine. Sound design by Lyra Smith. Mixing and mastering by Marc Bush and Charlotte Landes. Original score composed by Jarod Tate, citizen of Chickasaw Nation. Our outro song is an honor song for adoptees, written and sung by Jerry Dearly, who is Oglala Lakota. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaten, founder of the First Amendment Project. Podcast, start by Keli Gonzalez, citizen of Cherokee Nation. Additional thanks this episode to David Armiak and Lisa Graves.

 

If you’re enjoying the show, please rate, review and subscribe, it helps more people find us. And please share it with your friends. If you have a tip or information to share related to our reporting, you can do that securely and anonymously through our secure drop. You can find a link in the show notes. To see a map of how all the anti-ICWA players are connected and the documents we dug up about the Bradley Foundation and the Goldwater Institute, visit the show’s website.

 

This season of This Land touches on different forms of family, childhood, and racial trauma. If you feel like you could use support, please check our show notes or website, ThisLandPodcast dot com, to find resources for adoptees and survivors of childhood trauma, abuse, foster care, and boarding schools.

 

 

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