What is Indian Law?

By Jedd Parr, CILS Sacramento office Directing Attorney

Indian law is rooted in two main concepts – first, that Indian tribes are sovereign entities with powers which predate the U.S. Constitution, including the inherent power to make their own laws and be governed by them, and second, that there is a political relationship between the federal government and Indian tribes which generally removes tribes from state jurisdiction.

The first concept seems obvious, as tribes have occupied North America since time immemorial.  The second draws largely from the Constitution’s Indian Commerce Clause, giving Congress the sole power to regulate commerce with Indian tribes.  As is true in other practice areas, case law has been the most significant factor in defining exactly how Indian law is built on these bedrock concepts.  Beginning with a series of Supreme Court decisions in 1823-1832, commonly referred to as the “Marshall Trilogy” since they were principally authored by then Chief Justice John Marshall, case law has laid the foundations of Indian law – one key principle being that while Indian tribes retain certain aspects of their original sovereignty, Congress can abrogate that sovereignty unilaterally.

There are competing views of whether a federal law may be imposed upon tribes only when Congress expresses an intent to do so explicitly, or whether Congress, without saying so, implied that the law would apply to tribes.  For many years, the first view was widely accepted – that an intrusion upon the right of tribes to be governed by their own laws must be plainly set forth in the federal law itself, or in the legislative history of the law’s passage.  But in 1985, the Ninth Circuit Court of Appeals held that a federal law which was silent on whether it was intended to apply to tribes would apply by default unless one of three exceptions was present: 1) if it interfered with “exclusive rights of self-governance in purely intramural matters;” 2) if it would abrogate rights guaranteed by treaties, or 3) if it could be shown (by legislative history or otherwise) that Congress did not intend the law to apply to tribes.  This position has been widely criticized by scholars of Supreme Court jurisprudence but has been adopted by several federal appellate circuits, while others remain of the view that a tribe’s sovereignty may only be undermined explicitly.

Direct and tribal-specific actions of Congress have also affected tribal sovereignty, though unintended consequences have sometimes been the result.  For example, in California, the passage of Public Law 280 in 1953 by Congress had a tremendous effect.  Under Public Law 280, the transfer of federal criminal jurisdiction on Indian lands to the state, and the provision for limited state civil jurisdiction on those lands, inadvertently created a new state-tribal concurrent jurisdictional maze, the parameters of which are still being litigated today.

Thus, Indian law today is highly varied and complex.  An Indian law case can be a question of purely tribal law, or the interplay of tribal and state law, or of tribal and federal law, or even all three simultaneously.  It can involve the rights of individuals, or of tribes, or of one or both of those in relation to the state or to each other.  It can pertain to activities both on and off Indian reservations.  This mosaic is laid over a number of practice areas – real property, taxation, child welfare, environmental and cultural resource protection, an inheritance of estates, public safety, religious practices, public benefits, contracts, and torts, just to name a few.  At CILS, we are proud to work in this field and to assist wherever we can to protect and advance Indian rights, foster Indian self-determination, and facilitate tribal nation-building.

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Governor Newsom’s Order Regarding Tribal Lands

By Dorothy Alther, Executive Director

On September 22, 2020, Governor Newsom signed “A Statement of Administration Policy on Native American Ancestral Lands” acknowledging and reiterating that Native Americans occupied California long before statehood and were forced to relinquish their lands and sacred sites,  through violence or other means, to the newcomers descending upon the state. The Policy’s purpose is to “partner with California tribes to facilitate tribal access, use, and co-management of State-owned or controlled natural lands and to work cooperatively with California tribes that are interested in acquiring natural lands in excess of State needs …” This defined purpose is to be accomplished through facilitating Native American access to their sacred and cultural sites located on state lands, improve the ability of California Native Americans to engage in traditional and sustenance gathering, hunting and fishing; manage state lands through co-management agreements that utilize “Traditional Ecological Knowledges” and foster “opportunities for education, community development, economic diversification, and investment in public health, information technology, and infrastructure, renewable energy, water conservation, and cultural preservation or awareness.”

This directive to state agencies means that Native Americans will hopefully no longer be denied access to their sacred and cultural sites on state lands in order to carry out their traditional practices. Native gathering, and substance hunting and fishing will be easier to engage in on state lands. Tribes will be allowed to voice and be involved in applying their traditional knowledge of maintaining natural resources on state lands through co-management agreements with state agencies. Most importantly, tribes may acquire excess state land not needed for a state purpose, meaning areas of cultural importance may be returned to Native American ownership.

New COVID-Related Eviction Protections for Off-Reservation Renters

By Mike Godbe, CILS Bishop office Registered Legal Aid Attorney

If you rent your home in California and have had difficulty paying your rent because of the COVID-19 pandemic, a new state law can help you stay in your home.

This blog post aims to provide an overview of some of the most important protections in a new California law known as “AB 3088”, which does not apply on Indian reservations or allotments.[1] Because California has the largest Native American population of any state, and over half of that population lives in urban areas off reservations, this new law provides important protections for California Indians. With the exception of our Bishop office, CILS deals exclusively with matters of federal Indian law, so off-reservation tenants in need of legal services should seek assistance from other legal service providers[2] on this and other state-law issues.

Disclaimer: AB 3088 is complex and cannot be fully explained[3] in one blog post – this post is NOT legal advice. If you have a specific question regarding your situation, contact a landlord/tenant attorney or one of the many tenants’ rights advocacy groups across the state.

Nonpayment Evictions

AB 3088 provides protections to California renters who are behind on rent that came due between March 1, 2020 and January 31, 2021 (the “Covered Period”), who are behind for a COVID-related reason, and who provide their landlord with a signed declaration swearing to the COVID-relation. The law applies to all residential rental tenants and mobile home residents, including single-family home and ADU rentals.

If a landlord has a tenant that is behind on rent due during the Covered Period, the landlord must first send the tenant a general notice describing the rights provided by AB 3088 before they can serve an eviction notice. CCP § 1179.04.

AB 3088 extends the notice period for nonpayment evictions from 3 to 15 days (not including weekends or holidays) to provide tenants additional time to either pay their landlord or provide the landlord with a declaration of hardship. Landlords must attach to the eviction notice a blank copy of the declaration for the tenant to sign and return.

If the nonpayment is based on unpaid rent that was due between March 1, 2020 and August 31, 2020 and the tenant timely returns the signed declaration, the tenant cannot be evicted.

If the nonpayment is based on unpaid rent that was due between September 1, 2020 and January 31, 2021, and the tenant timely returns the signed declaration AND pays 25% of all unpaid rent by January 31, 2021, the tenant cannot be evicted.

If your head is spinning, you’re not alone. Here is a video in English and in Spanish.

So does this mean that tenants will not owe the rent?  No. Tenants still owe their landlords the rent that they are contractually obligated to pay, however, tenants cannot be evicted based on unpaid rent from the Covered Period (March 2020 through January 2021), provided they timely return the signed declaration.  Beginning on March 1, 2021, Landlords will be able to sue their tenants in small claims court for the unpaid rent, receive judgments, and collect those judgments – but they cannot evict their tenants for unpaid rent from the Covered Period and cannot sue to collect before March 2021.

However, if a tenant does not timely return the declaration, he or she can be evicted (but note that he or she will also have a chance to prove – at a hearing before a judge in the eviction lawsuit – that this failure was an accident, in which case the judge should dismiss the lawsuit).

Evictions for Reasons other than nonpayment and “No-Fault” Evictions

Until September 1, 2020, California Courts were not allowing any evictions to move forward (except in exceptional circumstances involving threats to health and safety).  With the passage of AB 3088, this is no longer the case: evictions based on a reason other than nonpayment of rent (e.g., breach of rental lease) are now happening in California. However, until February 2, 2021, all landlords must have some reason (i.e., ‘just cause’) to evict any tenant (i.e., ‘no-cause’ or ‘no-fault’ evictions are largely prohibited until February 2, 2021, though a small category of ‘no-fault just cause’ evictions may still able to proceed, see Civil Code 1946.2).

Landlords cannot retaliate against tenants for not paying rent for a COVID-related reason between March 1, 2020 and January 31, 2021. And landlords cannot mask a ‘nonpayment’ eviction in another type of eviction. For example, if a landlord evicts for breach of the lease, he cannot under the guise of a breach-of-lease eviction try to collect unpaid rent from between March 1, 2020 and January 31, 2021.

How are Local Laws Affected?

AB 3088 overrules or modifies local ordinances setting time periods for repayment of rent that went unpaid due to COVID. For most local ordinances that allow tenants more time to repay rent, AB 3088 changes those ordinances to require repayment begin by March 1, 2021 and end no later than March 31, 2022.

Penalties for Landlords

For landlords who simply mess-up these new legal requirements by serving an old eviction notice, providing less time, failing to attach a copy of the unsigned declaration or provide the required notice of tenants’ rights, the punishment is only that the eviction lawsuit will fail and the landlord will have to start over and follow the law.

However, AB 3088 also adds section 789.4 to the Civil Code, which provides penalties between $1,000 and $2,500 against landlords who resort to self-help evictions (i.e. locking the tenant out, throwing personal property out onto the curb, shutting off utilities, etc).


If you believe your rights under AB 3088 may have been violated, contact your local legal services provider, a tenants’ rights advocacy group, or a private California attorney knowledgeable in housing law.

[1] Civil “regulatory” state laws to not apply in Indian Country in California. To learn more, check out our Executive Director Dorothy Alther’s introductory blog post on Public Law 280.

[2] Find a legal service provider close to your area by visiting http://lawhelpca.org/

[3] AB 3088 includes protections for some homeowners having difficulty paying their mortgages, limited protections for higher income tenants, protections for some small landlords who have seen their rental income decrease due to the COVID-19 pandemic, and language requirements for the notices if the rental agreement was negotiated in a language besides English – however, these matters are beyond the scope of this post.