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Assessing An NPR Report On The Indian Child Welfare Act

Legal Gavel & Open Law Book
Legal Gavel & Open Law Book

A Dec. 17 report on All Things Considered about the Indian Child Welfare Act prompted harsh criticism from the Native American Journalists Association, which called it "inaccurate and imprecise." A meeting between NAJA leaders and NPR editors resulted in a clarification being posted on the online version of the piece, but NAJA members continued to have concerns about the reporting. They asked my office to look into them.

I'll address the specific concerns below. While complex, to me they are emblematic of broader questions that have come up in my tenure at NPR. One is what to do when someone who is quoted in a story says something that is misleading or inaccurate, or can be construed as racist. The second issue concerns the need for clear explanations when quoting a representative of an organization that isn't familiar to most listeners and readers: What does that organization stand for, who are its funders or what is its broader agenda?

The specific context here is the 40-year-old law (known as ICWA) that governs the fostering and adoption of Native American children (defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe"). It gives preference in those cases to Native American families.

The news that prompted the report was, as Dallas-based correspondent Wade Goodwyn reported, a U.S. District Court ruling in October that for the first time struck down the act as unconstitutional on the basis of race. Judge Reed O'Connor ruled that "the law is a racially based preference that discriminates against non-Indian families." (That ruling was later stayed by the 5th Circuit Court of Appeals.)

The broad theme was summed up well in the conclusion of the piece: "Is the Indian Child Welfare Act an unfair racial preference or a legal acknowledgement that Indians have citizenship rights as both Americans and members of their sovereign tribes?"

That distinction — race vs. tribal citizenship — is at the heart of the NAJA concerns about the reporting, just as it is at the heart of the court case itself.

I will say upfront: I commend NPR for dedicating eight minutes — a long chunk of time in an era when lots of other news is competing for attention — to telling a story that has been underreported elsewhere. Goodwyn spent more than a month working on the piece, which used the story of the adoption of one child as part of the way to tell the broader story. It had good context about the origins of the law and why Native people find it so important. His editor, Jason DeRose, has edited many stories on Native American issues. This was not a piece that was rushed or ill thought-out.

I do think two of NAJA's points about the storytelling are worth exploring.

The flashpoint of one of NAJA's complaints was a statement from Goodwyn, coupled with a quote from the adoptive father of the child, named Mason. In setting up the quote, Goodwyn said: "It turned out that Mason's mother and therefore Mason was part Indian." That was followed by a quote from the adoptive father, who told Goodwyn that the child "didn't even look Indian in the least regards."

NAJA's press release called Goodwyn's initial statement "misleading and incorrect." The child's mother, they wrote, "is a tribal citizen, therefore the child is also a tribal citizen. This designation is foundational to federal Indian law."

Of the father's comments, NAJA said: "These types of depictions of Native people are blatantly racist and should have been addressed by editors before publication and in the story. In ICWA cases, the child's identity is based on a political connection to a sovereign nation, and is not based on racial identifiers."

In response, NPR posted an online clarification and changed Goodwyn's statement to read: "It turned out that Mason's birth mother — and therefore Mason — is a Choctaw citizen." (The audio version remains as originally aired.)

But NAJA officials said they felt the clarification did not go far enough. NAJA President Tristan Ahtone told me that while reporters "can't police what people say," NPR should also have found a way to clarify the statement from the father. NAJA Director of Programs and Strategic Partnerships Bryan Pollard added: "If the quotes from the sources stand as they are, there needs to be some explanatory language surrounding that."

The father's statement jumped out at me the first time I heard the piece on the radio. And I understand why the quote is objectionable. But I support NPR's rationale for using it. Editor DeRose said the quote was included to show the perspective of the adoptive father, and why he was so surprised when the adoption proceedings were restarted midway through — he had no indicators that the adoption proceeding should have been governed by the Indian Child Welfare Act. This was a parent explaining his thinking, speaking conversationally.

"Had anyone believed this child was Choctaw nobody would have been in this situation," Goodwyn told me.

Ideally, however, Goodwyn would have found a way to add explanatory material clarifying that looks are irrelevant in determining whether someone is Native American.

A second NAJA concern is the lack of context surrounding quotes from Timothy Sandefur, who is vice president for litigation at the Goldwater Institute in Phoenix. Sandefur, on behalf of the Institute, filed a brief in support of striking down ICWA, in the case that was ruled on in October. DeRose and Goodwyn said Sandefur was interviewed because the judge would not discuss the case.

The piece had no identifying information about the Goldwater Institute. It is a 30-year-old libertarian think tank that has been active in issues from cutting taxes to promoting charter schools. The Indian Child Welfare Act has been a particular focus of its recent work, as the Institute lays out on its website.

The argument that ICWA is a matter of race, not tribal citizenship (the view argued by the Goldwater Institute), "is disinformation often raised by groups that seek to diminish and destroy the political identity of Indigenous peoples and the sovereign status of tribal nations," NAJA said in its press release. "By airing these views nationally, NPR has provided a megaphone for anti-Indian ideas and a platform for racism against Native people."

I don't think it's that simple, in part because the judge ruled precisely on that point: He ruled that race, not tribal citizenship, is what underpins ICWA.

DeRose, NPR's editor on this piece, told me: "If we don't use the language that the people who are arguing for the winning side used, then it's extremely hard to explain who won. It insists on the story being framed in one way that makes reporters have to take a stance against the winning side."

Chrissi Ross Nimmo, deputy attorney general for Cherokee Nation, who has argued hundreds of ICWA cases, said Sandefur's comments were relevant. She wrote, in a letter supporting NPR's reporting, "Six months ago we could have said [the Goldwater Institute representative's comments] were factually incorrect and misinformed, but now that our anti-ICWA opponents have prevailed using those arguments in court, we must continue to have a conversation about the validity of those arguments."

I agree with DeRose and Nimmo. But that's precisely why I also believe the story absolutely needed another element: the context of the Goldwater Institute's extensive work in challenging the law over several years, as well as at least a reference to the far broader implications that their ICWA work (and that of others) might have for tribal sovereignty.

The October ruling "stunned Native American rights activists," The Washington Post reported. Dan Lewerenz, an attorney with the Native American Rights Fund, told The Post: "The decision is jarring, and not just for its effect on ICWA, but because as far as I know this is the first time ever that a federal statute enacted to benefit Indians has been found to be unconstitutional on the grounds of equal protection. It introduces perhaps an entirely new world of Indian law. And we worry that this might be what the plaintiffs intend, that this is not just an effort to undermine ICWA, but to undermine all Indian law."

Keith Woods, NPR's vice president of newsroom training and diversity, told me: "The facts [about the bigger picture] belong in the story or you don't understand the story fully." He said the story had "good context and conscious context," when it came to describing the law's history, "but it didn't get all the way to that critical place."

Is that a lot for one piece, even an eight-minute one, to carry on its shoulders? It is. But that broader context is crucial. Even a single line of additional context would have helped listeners more fully understand the stakes (and do their own research, should they want).

Goodwyn told me: "I definitely thought I was playing fair with everybody on this front by identifying [the Goldwater Institute] as on one side of the case. If I wasn't quite clear enough that was my fault."

One other point about the storytelling: In its press release, NAJA also criticized NPR for naming the child involved in the adoption proceeding. Vickie Walton-James, NPR's senior national editor, said, "The parents gave permission and were not fearful about his safety or privacy. Had they been we would not have identified him."

Of the piece overall, Walton-James told me: "In a perfect world there are many more things we could have said in this story. But I think we covered this issue fairly and did a good job of providing historical context and explaining what was unfolding in this case." Goodwyn told me he stood by his reporting.

Mark Memmott, NPR's standards and practices editor, said, "Unfortunately, not every story nails every point. Give us some time and let us keep covering these issues."

Native American tribal sovereignty is a complicated issue to report on, particularly within the time constraints of radio newsmagazines. I've limited my thoughts here to the piece itself. But it seems to me, from my conversations about the story, that some of the heated reactions are a result of a long history of tension between Native American journalists and NPR over broader questions of how NPR approaches coverage of Native American issues. I'll be looking into other questions that were prompted here for me in upcoming columns.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Elizabeth Jensen was appointed as NPR's Public Editor in January 2015. In this role, she serves as the public's representative to NPR, responsible for bringing transparency to matters of journalism and journalism ethics. The Public Editor receives tens of thousands of listener inquiries annually and responds to significant queries, comments and criticisms.
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