TRIBAL ALERT: Support the Governor Signing Important Native American Legislation

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To All Tribal Leaders:

Governor Newsom has four (4) Native American bills on his desk that will:

  1. AB 275- Amends CA Native American Grace Protection and Repatriation Act;
  2. AB 2112- Create a statewide “Office of Suicide Prevention”;
  3. AB 2314- Increase Native American Voter Participation;
  4. AB 3099- Provide Public Law 280 training to state law enforcement and foster better coordination between tribal and state law enforcement.

The Governor needs to know NOW that there is tribal support for these important bills since the Governor may sign or devote the bills any day!

Assemblymember James Ramos’ (D-Dist. 40) (member of the San Manuel Band of Mission Indians) website provides information on each bill, a sample letter of support can be downloaded, and the Governor’s email address. Please visit https://a40.asmdc.org/press-releases/20200917-sample-letters-support-governor

Assemblymember Ramos and CILS thank you for your attention and support of these important new laws; if you have any questions, feel free to contact Assembly Member Ramos’ Chief of Staff Adriana Ruelas at adriana.ruelas@asm.ca.gov 916-319-2040 or CILS’ Executive Director Dorothy Alther at dalther@calindian.org.

Stay safe and healthy.

House Bill for Federal Recognition of the Mono Lake Kutzadikaa Tribe Introduced by Congressman Paul Cook

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The Mono Lake Tribe’s recognition has been one of the longest-lasting cases at CILS. In response to the recognition bill, Dorothy Alther, CILS Executive Director and lead legal counsel for the Tribe said, “I cannot fully express my gratitude to Representative Cook for introducing the Mono Lake Tribe’s recognition bill. I have had the privilege of working with the Tribe over a decade and find no tribe more worthy of federal recognition. While we are excited, we also acknowledge the legislative process can be long and arduous, but the Tribe and CILS are dedicated to seeing the process through. Thank you again, Representative Cook.”

DA PRESS RELEASE Edited

Streamlined Path to Firefighting Employment for the Formerly Incarcerated

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By Jay Petersen, CILS Sacramento Senior Attorney

Assembly member Eloise Gómez Reyes (D-47th) of San Bernardino introduced AB 2147 in February 2020 and Governor Newsom signed the bill in early September.  The law takes effect January 1st, 2021.

AB 2147 represents a clear eyed and fair minded “ban-the-box” law intended to reduce unnecessary barriers to employment for individuals with conviction histories.  “Ban-the-box” laws prohibit the required disclosure of conviction histories in job applications until prospective employers extend an initial offer of employment to a job applicant. “Ban-the-box” laws are built on solid, long term evidence that conviction histories are too often arbitrarily used to prevent post-conviction employment.  Gainful post-conviction employment is one of the key factors that enables formerly incarcerated individuals to successfully re-join their communities.

California faces a critical shortage of qualified firefighters. To help meet the urgent Statewide need for skilled and experienced firefighters, AB 2147 amends current expungement law by providing professionally trained state prisoners and county inmate firefighters with a streamlined path to clearing their convictions that is not available to them when they apply for other jobs.

The Native community has a long and successful track record in fighting fires from serving as smoke jumpers, and “hot shot crew” members to frontline firefighters. Native community members are also disproportionally represented in California’s incarcerated population. These demographic factors make this new law especially important to members of the Native community with qualified training who are released from or who are nearing release from custody and who want to continue to serve their communities as firefighters.

Under AB 2147, courts are empowered to dismiss the convictions and terminate the parole or probation conditions of individuals who are trained and who have successfully served as members of state and county fire fighting units as state prisoners or county inmates. Local law enforcement must be notified of all petitions to dismiss convictions and terminate parole or probation terms and can object to these requests.  State and local officials certify an individual’s qualifications to reviewing courts. Certain felony convictions are ineligible for dismissal.

California Indian Legal Services maintains a State Bar funded Native American Record Clearing Project that helps eligible individuals with criminal histories re-enter the work force.  Individuals who think they may qualify for conviction dismissal under this new law should contact us for an evaluation of their eligibility and for possible assistance in filing expungement petitions so they can continue to serve their communities in the firefighting profession.

For further information, consult https://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml and please contact:

Bishop Office:

873 N. Main Street, Suite 120
Bishop, CA 93514
Tel: (760)873-3581;
(800)736-3582
Fax: (760)873-7461
Map

Counties Served
Alpine, Inyo, Kern, Mono, Tuolumne

Escondido Office:
609 S. Escondido Boulevard
Escondido, CA 92025
Tel: (760)746-8941;
(800)743-8941
Fax: (760)746-1815
Map

Counties Served
Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, Ventura

Eureka Office:
324 F Street
Eureka, CA 95501
Tel: (707)443-8397;
(800)347-2402
Fax: (707)443-8913
Map

Counties Served
Del Norte, Humboldt, Mendocino, Siskiyou, Trinity

Sacramento Office:
117 J Street, Suite 201
Sacramento, CA 95814
Tel: (916)978-0960;
(800)829-0284
Fax: (916)400-4891
Map
Counties Served
Alameda, Amador, Butte, Calaveras, Colusa, Contra Costa, El Dorado, Fresno, Glenn, Kings, Lake, Lassen, Madera, Marin, Mariposa, Merced, Modoc, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Solano, Sonoma, Stanislaus, Sutter, Tehama, Tulare, Yolo, Yuba

An Introduction into Public Law 280

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By Dorothy Alther, Executive Director

If you are a California Native American chances are you have heard of Public Law 280 (PL 280) at some point in your life.  But what does PL 280 really mean to you, to your tribes, and California tribal communities? The following is a short introduction and overview of PL 280. Please note that PL 280 is complex[1] and reports, books, law review articles, and lengthy court opinions have been written on the topic.

Jurisdiction in California “Indian Country”[2] Before PL 280.  Prior to PL 280, the state’s criminal and civil jurisdiction in California Indian County was limited to cases where all the parties were non-Indians. For example, the state only prosecuted a crime committed in Indian Country where both the defendant and victim were non-Indians.  In civil cases, the state only heard cases where the act occurred in Indian County if both the plaintiff and defendant were non-Indian.

Thus, prior to PL 280, crimes involving a Native American were prosecuted by the federal government and/or tribal government, depending on the nature of the crime and if the accused was a non-Indian. Civil cases arising in California Indian Country where one of the parties was a Native American would be heard in tribal court.

Confusing I know, but the main point to remember is that in California prior to the passage of PL 280, the state had very limited jurisdiction in Indian Country.

PL 280 Changed the Jurisdictional Scheme in California Indian Country.  PL 280 was passed in 1953 and consists of two jurisdictional laws[3] which grants state concurrent (shared)criminal and limited civil jurisdiction with the tribes in California, Nebraska, Oregon, Wisconsin and Minnesota (commonly referred to as the “mandatory states”) and Alaska was added in 1958.

Remember prior the PL 280, these mandatory states had no criminal or civil jurisdiction in Indian Country unless all parties were non-Indians.  PL 280 changed the rules.

Under the criminal portion of PL 280, Congress removed two federal criminal jurisdictional statutes[4] used by the federal government to prosecute crimes in Indian Country. This does not mean that there are no federal criminal laws applicable in California Indian Country, but PL 280 removed the two main federal statutes specific to crimes occurring in Indian Country.  Now, crimes committed in California Indian Country are criminally prosecuted in state court.  Tribes can also prosecute the same crime in tribal court if the defendant is Native American.[5]

On the civil side of PL 280, state jurisdiction is more limited and was designed to open the door for Native Americans to file private civil suits in state court regardless of whether the defendant is a Native American or a non-Indian and the cause of action occurred in Indian Country.

PL 280 did not Change all the Rules.  Although PL 280 opened the door for state concurrent jurisdiction in California Indian Country, it did not remove the door from its hinges, at least in the area of civil jurisdiction.  Under the civil PL 280 statute, Congress lists a number of exceptions to state jurisdiction in Indian Country, for example there is no state jurisdiction: to tax trust lands, probate allotted lands, regulate or encumber trust lands, or determine the right to possess or ownership of trust land or property.

What PL 280 did not do:

  1. PL 280 did not “divest” (take away) tribes of their criminal and civil jurisdiction. Tribes can establish their own courts, have their tribal law enforcement and pass tribal laws enforceable on their reservations;
  2. PL 280 does not allow the state to impose its civil “regulatory” laws on the reservation (i.e. environmental laws, labor laws, building or fire codes, hunting and fishing regulations, and other laws designed to regulate land use); and
  3. PL 280 does not allow city or municipalities to impose their ordinances on the reservation.

CILS offers trainings and community presentations to tribes and tribal communities that take a deeper dive into the more complex and controversial issues of PL 280. CILS can provide direct representation to tribes and individuals in case involving state actions that are in violation of PL 280. CILS can also assist in preparing and advising  tribes in developing tribal courts and codes while navigating the nuances of PL 280.  Due to the COVID-19 pandemic our trainings and presentations are virtual but please contact to learn more about our services and trainings.

 

Bishop Office:

873 N. Main Street, Suite 120
Bishop, CA 93514
Tel: (760)873-3581;
(800)736-3582
Fax: (760)873-7461
Map

Escondido Office:
609 S. Escondido Boulevard
Escondido, CA 92025
Tel: (760)746-8941;
(800)743-8941
Fax: (760)746-1815
Map

Eureka Office:
324 F Street
Eureka, CA 95501
Tel: (707)443-8397;
(800)347-2402
Fax: (707)443-8913
Map

Sacramento Office:
117 J Street, Suite 201
Sacramento, CA 95814
Tel: (916)978-0960;
(800)829-0284
Fax: (916)400-4891

Map

 

[1] As a frequent presenter on PL-280 many presentations can take well over three hours.

[2] Federal law “Indian Country” is as “reservations, allotments and dependent Indian communities.” 18 U.S.C. § 1151.

[3] 18 U.S.C. § 1162 (Criminal) and 28 U.S.C. § 1360 (Civil)

[4] Major Crimes Act 18 U.S.C. § 1153 and Indian Country Crimes Act (aka General Crimes Act) 18 U.S.C. § 1152.

[5] In 1978 the Supreme Court held that tribes could not prosecute or punish non-Indians in tribal court. Oliphant v. Suquamish, 435 U.S. 191 (1978).  However, Congress has passed recent legislation to allow tribes to prosecute non-Indians under some circumstances for the act of domestic violence.

Tort Claims

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CAUTION: Wet Floors = Tribal Tort Claims

By Mark Vezzola, CILS Escondido Directing Attorney

What is a tort? A tort is something someone does or fails to do that harms the person or property of another. Negligence, for example, is a type of tort, as is conversion, making someone else’s property your own. What do torts have to do with Indian tribes? Torts occur every day and everywhere, including on Indian reservations, including Indian casinos. Consider all the possible ways to get injured in a casino, a place full of large, metal machines with blinking lights and zippy sounds, area rugs and mats, cleaning equipment, and patrons maneuvering between a maze of slot machines, shops, and restaurants.

Imagine an Indian casino patron entering a restroom and slipping on the wet floor. Maybe someone forgot to leave out a caution sign. Perhaps there was a sign outside the door, but the patron missed it because he was glued to his smartphone. Maybe the patron ignored the sign because he just had to go. Chances are there will be at least two sides to the story of what happened. Thorough documentation and investigations are necessary to ferret out the truth. But how do you get there? Whatever happened, this is a tort claim the patron will likely pursue, especially if he sustained bodily injury.

The most important thing to know about casino tort claims is that they are governed by tribal law. Even though tribes, as sovereign nations, are protected from lawsuits by a doctrine called sovereign immunity, those with Class III gaming (games of chance, high stakes, etc.) agreed to waive this immunity in compacts made with the state of California. Each tribe with a casino is required to have a tort claim process for injured patrons and insurance coverage. For this reason, gaming tribes have laws specifically for casino tort claims. While provisions vary from tribe to tribe, they all have at least one thing in common: the claims cannot be heard in state courts.

In the case of the patron who slipped on the restroom floor, how would he initiate a claim for monetary damages? First, an injured party must follow the claim process, which usually involves filing a claim form describing the event, the extent of injury, and the amount of any monetary losses, under penalty of perjury within the applicable statute of limitations, usually 180 days. Based on that information and a review of the evidence, the tribe or its insurer will issue a decision about liability. If the claim is denied, the claimant usually has a right to appeal, either by requesting binding arbitration or submitting the matter to tribal court, whichever tribal law allows. That body will make a final decision.

Warning: Tribes should be aware that some lawyers are looking for ways around tribal sovereign immunity. In Lewis v. Clarke, 581 U.S. ___ (2017), the Supreme Court ruled tribal employees are not protected by the tribe’s sovereign immunity when sued as individuals. Citing Lewis, lawyers representing injured parties are filing suits in state and federal courts against tribal employees, including security officers and paramedics.

How can tribes protect themselves? Careful code drafting and vigorous defense of tort claims are key. CILS can help tribes with both and represent tribes and tribal employees in court or arbitration and by staying abreast of developments under both state and tribal law.