Census Extension Backtrack

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By Alexis Lindquist, CILS Escondido Staff Attorney

SHUTTERSTOCK

American Indians were excluded from the first six censuses from 1790 through 1850. The original mandate in the US constitution excluded Indians because they were not taxed. This theory was based on the premise that American Indians had a political allegiance to their own tribes and thus were not truly a part of the United States.

The US Census Bureau started counting Indians in 1860, but only those that were considered assimilated were officially counted. There was not a census for every reservation or group of American Indians every year. Only persons who maintained a formal affiliation with a tribe under federal supervision are listed on these census rolls.

Fast forward to 2020, and American Indians are still having issues being counted on the census. In a recent push to move the census count along, the US Census Bureau moved its deadline from October to September 30th, 2020 — backtracking from its previous decision to extend field operations due to the global pandemic. The shortened deadline disparately affects American Indians because of the large amount of remote and rural reservation land. Census Bureau employees must take extraordinary measures to reach homes that can be difficult to access with a “boots on the ground” approach, a time-consuming process that has been hampered due to COVID-19. The smaller deadline window could cause a grim outcome for an accurate census count.

It is important to remember that not everyone can fill out their census paperwork from their smartphone on their couch. In remote areas there may be a lack of internet or broadband connectivity or even a physical address in which to mail a paper questionnaire. Many people living on Indian reservations have only P.O. boxes — a place in which the US Census Bureau won’t mail questionnaires. For American Indians living in these remote areas, it is critical for census workers to physically knock on doors to get an accurate count. The process of going to remote areas is not only time consuming, but it is nearly impossible given the current pandemic which has created barriers to travelling and speaking in person.

The census is required by the US Constitution to determine the number of seats each state gets in the House of Representatives. An accurate population count is needed for tribes to receive adequate social services and representation in Congress. When American Indian communities are undercounted, hospitals, schools, roads and water systems are underfunded, and this year there has been a historically low response rate in undercounted areas. Tribal regions in particular are currently showing a self-response rate well below the national average of 63%[1]. Many federal programs, including Rural Domestic Violence Assistance and Rural Education programs, are aimed at helping people in rural areas and funding for those programs is often determined by census statistics.

Tribal governments play a critical role in ensuring a complete and accurate count of the American Indian population. If your tribe needs paper questionnaires delivered, contact your regional census center.

Despite all of these challenges, the Census Bureau claims to ensure that every person in the United States is counted. Now the issue is… time.

[1] US Census Bureau Website, www.census.gov.

Statewide Virtual Summit, “Ensuring Equitable Engagement in Regional Water Planning”

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Dear Tribal Leaders and Tribal Representatives and Grant Managers,

Share with your Tribal networks and other interested partners who may be interested in the “Pre-Orientation Summit”scheduled on September 10, 2020 10:00 a.m. to 11:30 a.m.   This pre-orientation summit will gather partners who may not be actively involved in IRWM or other grant funding to be prepared for the ‘Statewide Virtual Summit: Ensuring Equitable Engagement in Regional Water Planning” taking place on October 8, October 13 and October 14, 2020.

We are encouraging attendance at both events – September 10, 2020 and the series scheduled on October 8, 13 and 14, 2020.

As a preview to the Statewide Virtual Summit, “Ensuring Equitable Engagement in Regional Water Planning” scheduled for October 8th, 13th and 14th, the Integrated Regional Water Management (IRWM) Roundtable of Regions invites you to join us to learn more about:

  • Integrated Regional Water Management: the benefits of regional planning and who should participate in IRWM;
  • How to participate in your region’s IRWM; and
  • The role of the IRWM Roundtable of Regions and their “Disadvantaged Communities Working Group”

The webinar will also feature local representatives from three IRWM regions who will share their perspective on the benefits, successes, and challenges of participating in their region’s IRWM program.

Who Should Attend this Webinar?

Registration is in the flyer link.

For more information contact Jodie Monaghan at jodie@jmconsultants.net or tribalpolicyadvisor@water.ca.gov.

Tribal Elections

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By Mica Llerandi, CILS Escondido Staff Attorney

2020 is a big election year. With the COVID-19 pandemic, many state and tribal governments are looking to voting by mail (VBM) as a safe way to conduct elections. However, Native voter advocates raise concerns that VBM disenfranchises Native voices.[1] Tribes who are reviewing their ordinances and grappling with ways of keeping their voters safe should consider the issues raised here.

Tribal Ordinances

Before making any changes to the election process, tribes should first review their election ordinances and governing documents. Tribes should determine whether a change requires a new ordinance or an amendment to the constitution. For example, if a tribe determines VBM is the best option to protect the health of voters, the tribe should verify that ordinances or the constitution support VBM for all voters, not just those residing out of tribal lands.

Tribes should also review the emergency provisions of their election ordinances. Many state and federal election officials thought the November election would not be affected by COVID-19, but now are scrambling to determine how to conduct the general election in a safe manner. In response, some tribes have cancelled elections[2] and others are using CDC guidelines to ensure safe election polling locations.[3] With uncertainty looming for the November general election, tribes should examine how an outbreak could affect their ability to conduct in-person voting.

With the pervasive use of technology in our daily lives, tribes should consider how their election process might be supported or affected by new technology. For example, social media is beneficial for disseminating information, but unregulated use of social media could also result in tacit endorsements of tribal candidates.[4] Tribal ordinances written 20 years ago may not fully contemplate the impact of the internet or social media on tribal elections.

Election Committees

Tribes should ensure election committees are operating independently but with oversight. Some suggestions for elections committees include establishing standards for appointment, staggering terms, and requiring training or a handbook on duties. Tribal law should include oversight mechanisms and remedies to ensure election officials are discharging their duties with integrity, honesty, and transparency.

Election Process

Tribes should review the election process from beginning to the end. Some things to examine include:

(1) Verifying date and deadline calculations are clear (i.e. distinction between calendar or business days);

(2) How to account for human error in tallying votes (i.e. ballot counting occurs 3 times);

(3) Whether the process is open and transparent (i.e. who can be present during the tallying?); and

(4) How to handle unusual results (i.e. ordinance only explains what to do in a two-way tie, but not a three-way tie).

Tribes should review their ordinances regularly to ensure a clear and fair voting process.

Conclusion

Tribal elections are vital to tribal governance and sovereignty. Tribal elections demonstrate to outside entities that tribes are legitimate and fully functioning governments. For members, individual participation has a visible impact on tribal governance. Tribes should continuously scrutinize their elections to ensure the process is appropriate, fair, and transparent. CILS assists tribes with revising and drafting tribal election ordinances, conducting tribal elections, and advising and representing election committees. If your tribe needs any assistance with tribal elections, CILS is ready and able to assist.

[1] Articles discussing the negative impacts of VBM for tribal voters can be found here and here.

[2] Noel Lyn Smith. Complaint Filed Against Navajo Nation over canceled primary election. Farmington Daily Times. https://www.daily-times.com/story/news/local/navajo-nation/2020/08/13/navajo-nation-faces-complaint-over-canceled-primary-election/3365989001/ (accessed on August 14, 2020).

[3] Center for Disease Control and Prevention. Considerations for Election Polling Locations and Voters. https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (accessed on August 14, 2020).

[4] Native Vote. Native Vote Toolkit 2018. http://www.nativevote.org/wp-content/uploads/2018/06/Native-Vote-Toolkit-2018.pdf, at p.17 (accessed on August 14, 2020).

TRIBAL ALERT: Support requested for Assembly Bill 3099 — short window!

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To all Tribal Leaders:

Assemblymember James Ramos (D-Highland) has a proposed bill, AB 3099, that his office has requested tribal support for.  It would require CA DOJ to provide technical assistance on tribal issues to local law enforcement agencies and tribal governments —  guidance and training on PL 280, criminal investigations in Indian Country, crime reporting and stats, and improving communication between local law enforcement agencies and tribal governments.  It also would require a study on how to better address reporting and identifying murdered and missing Native American women and girls.

The California Tribal Police Chiefs Association is in support of the bill.  We have heard anecdotally that many tribes in the state view it favorably as well.

If your tribe is willing to support this bill, please consider sending a letter of support to the Senate Appropriations Committee and to Assemblymember Ramos.  For the Senate Appropriations Committee, please go to https://sapro.senate.ca.gov and use the “Submit Position Letter” link at the bottom of the page, or email Senator Portantino at senator.portantino@senate.ca.gov.  For Assemblymember Ramos, please email his legislative director, Katherine Van Horn, at senator.portantino@senate.ca.gov.

To save you some time, attached is a sample letter of support.  Obviously, please feel free to customize it however you like.

There is only a limited amount of time in which to write in support of the bill, so if you do wish to support it, please send your letters as soon as you can – by Monday, August 17 if at all possible.

Please consider passing this email along to other tribes and law enforcement colleagues.

The text of AB 3099 can be seen here:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3099

Stay safe and healthy.

 

 

Lessons Learned from California ICWA Cases in the Last Year

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Since the enactment of AB 3176 in 2019, California case law has begun to define when there is “reason to believe” a child is an Indian child (which comes with the duty of further inquiry of Indian status by the county agency), and “reason to know” (which comes with the requirement of providing formal notice to tribes). AB 3176 was a tribally sponsored bill which sought to incorporate 2016 federal ICWA regulations from the Bureau of Indians Affairs into California law. As recent California cases illustrate, understanding when further inquiry should occur and when formal notice to tribes is required should be of utmost concern to courts, county agencies, and tribes. Failure to provide appropriate inquiry and or notice may result in unnecessary delays and infringes on the rights of tribes to be involved in cases involving their children.

Click here for Current Case Summaries

 

Concerns for the Future of ICWA Inquiry and Noticing

There is debate as to whether the changes to California ICWA laws had any positive effects. While some counties are providing less formal notice to tribes and more informal information sharing, other counties are not. The variation between counties highlights a broader concern of oversight. Previous changes to California ICWA law intended to provide greater protections for tribes and Indian children, but inconsistent application of the law poses a greater negative consequence – fewer children being connected to their tribes.

It is troubling to see in recent case law that inquiring into Indian status and providing notice to tribes may be considered moot when a child is returned home in a family maintenance case because it is believed the only benefit involving a tribe could offer is to potential invalidation of a foster care order. Invalidation of a foster care order could have a significant effect on the case if it changes how the timeline for services is calculated. Additionally, tribal involvement comes with significant benefits- resources, culturally appropriate services, information about the family, and active efforts to prevent the need for any future removal. More informal communications between county agencies and tribes, less formal notice, and less verification of contacts may mean more cases fall through the cracks. Less verification of contact between county agencies and tribes makes it difficult to enforce and monitor “further inquiry” requirements and ensure the agency is reaching out in a meaningful manner to the correct person at the tribe and providing adequate information to determine membership or eligibility.

California courts, in interpreting new California ICWA laws, have lessened “further inquiry” requirements. These judicial interpretations are unfortunate because they overlook important reasons parents and families may not have information on their Indian status. It is of utmost importance for courts and county agencies to understand how historical federal and state policies geared at eradicating tribes and Indian individuals resulted in many losing their connection to their tribes. Some reasons a parent or family may lack of knowledge of their Indian status may be due to historical trauma, including genocide, displacement, forced relocations of tribes, a family’s involvement in the foster care system due to being Indian, adoption within the family, a family’s involvement with boarding schools, issues with racism, the stigma associated with being a tribal member or associating with a reservation. Thus, when county agencies vary in their application of ICWA inquiry and when an agency fails to conduct appropriate inquiry, the families who have been disconnected from their tribe and lack knowledge or resources to piece together their tribal connection are failed. Ultimately, the shift in case law reinforces the historical legacy of disconnecting Indian individuals from their tribe.