Indian Child Welfare Act Update Erin C Dougherty

Indian Child Welfare Act Update Erin C. Dougherty Lynch, Native American Rights Fund (NARF) Amory Zschach, National Indian Child Welfare Association (NICWA) 29 th Annual BIA Tribal Providers Conference Wednesday, December 5, 2019 1: 00 p. m. – 2: 00 p. m.

Protect ICWA Campaign Legal Update

Adoptive Couple and Its Signals “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1. 2% (3/256) Cherokee. ” Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 3

Coordinated Anti-ICWA Campaign 1 Updated Guidelines and the 2016 ICWA Regulations (AKA Final Rule) 2 National Council for Adoption (Virginia) 3 Goldwater litigation (Arizona) 4 Brackeen v. Bernardt (Texas) Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 4

Brackeen v. Bernhardt: The Parties 1 Plaintiffs • States: Texas, Indiana, Louisiana • Individual Plaintiffs: Adoptive parents (Brackeens, Cliffords, Librettis) and birth mother (Hernandez) 2 Defendants • United States and its officials • Intervenor Tribes: Cherokee Nation, Morongo Band, Oneida Nation (WI), Quinault Nation, and Navajo Nation

Brackeen v. Bernardt: District Court Opinion Granted in Part Plaintiffs’ Motions for Summary Judgment Held ICWA unconstitutional • Equal Protection • Non-Delegation • Tenth Amendment Commandeering Type text Found the Regulations violated the APA and constitutional violations Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 6

District Court’s Constitutional Holdings Equal Protection Clause: District Court Opinion ICWA’s placement preferences and certain other provisions in ICWA are racebased in nature, which is discriminatory and unconstitutional. Non-Delegation Clause: The authority for Tribes to set their own placement preferences and have the state court accept these unconstitutionally delegates federal authorities to tribes. Anti-Commandeering Clause: ICWA unconstitutionally obligates states to carry out federal duties. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 7

Overwhelming Support for ICWA 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, Indian and constitutional law scholars, and seven members of Congress joined the United States and four intervenor tribes in filing briefs to urge the United States Court of Appeals for the Fifth Circuit to uphold the Indian Child Welfare Act (ICWA) Type text

Fifth Circuit Appeal: Court’s Decision District court reversed – ICWA is constitutional Fifth Circuit • Reversed (without dissent) on Equal Protection and Non. Delegation Partial Dissent (Judge Owen) • Would have found Commandeering in three individual parts of ICWA and the Regulations. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 9

Status: Petition for Rehearing En Banc On November 7, the Fifth Circuit agreed to rehear the case en banc. Department of Justice due December 6. Tribes and supporting amicus due December 13. Plaintiffs due January 7. Oral argument is scheduled for January 22. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 10

Protect ICWA Campaign The Protect ICWA Campaign was established by the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund. Together, we work to serve and support Native children, youth, and families through upholding the Indian Child Welfare Act (ICWA).

Protect ICWA Campaign Direction from tribal leaders to work collaboratively Coordinating on political and communications strategy on an ongoing basis Work to support plaintiff tribes Hub of activity with key roles for other organizations, tribes, non-Native allies, etc. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 12

Protect ICWA Campaign Strategic Communications

POLICY LEGAL Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. COMMUNICATION 13

Strategic Communications Strategy Outline Deep Dive Media Landscape Report Utilizing technology and best practices Messaging Development • Positive, strengths-based messaging focused on children and families • Found key phrasing changes to aid in changing the narrative to a pro-ICWA voice Identifying Spokespeople 30+ spokespeople identified Media Outreach • 11 joint press statements • 50+ journalists/reporters engaged • 10+ Op-Eds developed (3 published to date) Tools & Resources Development 3 Toolkits published on NICWA. org Tweet Chat held on March 13, 2019 Media Monitoring/Benchmarking Weekly - ongoing Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 15

Active Media Pitching and Engagement Talking Points Resource Lists Press Kit Social Media Post Drafts Backgrounders on ICWA and Brackeen v. Bernhardt Joint Press Releases Infographics Op-Eds Story Pitches Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 17

Total ICWA Mentions and Unique Authors Total mentions of ICWA across online news, blogs, and social media channels from October 1, 2018 to December 1, 2019. 40, 325 19, 150 Total ICWA Mentions Total unique authors writing about ICWA Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 16

ICWA News Articles October 1, 2018 - December 1, 2019 National, Regional, Indian Country Media 465 88 Total Articles Tracked Articles Impacted There have been 465 articles tracked by the Protect ICWA Campaign partners. Of those 465, we impacted 88 published articles - 18% of the total articles tracked. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 18

Changing the Narrative Due to the collective effort by partners, the narrative around ICWA has changed significantly favoring the strength-based ICWA messaging. Below is a side-by-side close up of word clouds from the last three large data pulls of online media coverage. October 1, 2018 - December 5, 2018 December 6, 2018 - April 18, 2019 Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. April 19, 2019 - December 1, 2019 19

Benchmark Key Concepts & Phrases October 1, 2018 - December 5, 2018 • Race-based law • ICWA decision • Decision in TX • Alaska Native • Jeopardize the Indian Child Welfare Act • Laws that enable tribal self-determination due • Federal court • Native American children • Tribal sovereignty • Native families Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 20

Narrative Change Key Concepts & Phrases December 6, 2018 - April 18, 2019 • Native Children • Families • Federal • Unconstitutional • Judge • Court • State • Tribal/Law • Foster • Appeals Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 21

Narrative Change Key Concepts & Phrases April 19, 2019 - December 1, 2019 • Native children (This key concept continues to strengthen over time) • Families • 5 th Circuit • Constitutionality (Switch from 'unconstitutional') • American • Law/Court • Interests of Native Children* • Federal appeals court • Indian Child Welfare Act case *889 mentions of “best interest of Native children” Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 22

Benchmark & Narrative Change Side-by-Side Benchmark Language Narrative Change • Race-based law • Native Children • ICWA decision • Families • Decision in TX • Federal • Alaska Native • Unconstitutional • Jeopardize the Indian Child Welfare Act • Judge • Laws that enable tribal selfdetermination due • State • Constitutionality (Switch from 'unconstitutional') • Tribal/Law • Interests of Native Children • Foster • American • Appeals • Law/Court • Federal court • Native American children • Tribal sovereignty • Court Updated Narrative Change • Native children (This key concept continues to strengthen over time from our efforts) • Families • 5 th Circuit • Federal appeals court • Native families • Indian Child Welfare Act case Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 23

Benchmark & Narrative Change Side-by-Side How ICWA is communicated matters in order to influence political will and judicial engagement. ICWA decision, race-based, unconstitutional Native families & children, citizenship, constitutionality Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 24

Getting Engaged

Getting Engaged: ICWA Media Resources Available for DOWNLOAD at www. nicwa. org/icwa/ ICWA Talking Points Guide ICWA Storytelling Guide Including a Native Youth Story Telling One-Pager Protect ICWA Campaign Social Media Tool Kit Protect ICWA Campaign Press Kit Coming Soon! Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 26

Getting Engaged: ICWA Media Opportunities 1 Become a National ICWA Spokesperson 3 Share strengths-based stories online. Join Protect ICWA Campaign's days of action on social media. Sign up with Amory at the end of the session. 2 Tell Your Story Write an op-ed for your tribal or local paper (we can help you get started). Participate on Social Media 4 Host a Native Youth Discussion Session Within Your Community Check out the Native Youth Storytelling Guide at NICWA. org/ICWA. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 27

Getting Engaged: Tribal Amicus Brief Did your Tribe sign the Tribal Amicus Brief? • As of today, 367 Tribes and 58 national and regional tribal organizations have signed on to the Tribal Amicus Brief that will be filed on December 13. • 100 Alaska Tribes have not yet signed on. • The Tribes who are parties in the case have requested that all Tribes stand together to defend ICWA. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 28

Getting Engaged: Thank Our Allies 1 Thank Alaska’s Attorney General for signing the State Amicus Brief defending ICWA. 2 Talk to Senator Murkowski, Senator Sullivan, and Representative Young and thank them for signing the Congressional Amicus Brief defending ICWA. 3 Talk to Interior: Thank them for working with the Department of Justice to defend ICWA. Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 29

Getting Engaged: Planning for the Future 1 Continue to support tribal courts 2 Develop state ICWA courts 3 Tribal state agreements (like the Alaska Tribal Child Welfare Compact) 4 State ICWAs Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 30

Questions? Erin Dougherty Lynch Amory Zschach Senior Staff Attorney Strategic Communications Manager Native American Rights Fund National Indian Child Welfare Association dougherty@narf. org amory@nicwa. org Protect ICWA Campaign © 2019 Proprietary and Confidential. All Rights Reserved. 31