In Perfect Bad Faith: Race and Attacks on the Indian Child Welfare Act

Abstract: This essay examines the challenges to the Indian Child Welfare Act, which claim that ICWA is unconstitutional because it discriminates against white people. I use the term bad faith to articulate how laws meant to repair historical harm contain loopholes that enable them to be weaponized by the perpetuators of that harm. Through readings of the oral arguments in the 2023 US Supreme Court case Haaland v. Brackeen as well as other culture and media surrounding attacks on ICWA, I examine the limits of arguments that classify Native people as exclusively a racial group or exclusively a political group. Ultimately, the essay shows how these attacks against ICWA are invested in maintaining law's possessive investment in whiteness.