CILS Announces Heather Hostler as Next Executive Director

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On September 7, 2021, CILS will be welcoming a new Executive Director, Heather Hostler, working in our Sacramento Office. For my part, I will be remaining in our Escondido Office in my new role as CILS Legal Director. While organizational change can be hard and challenging, it can also bring new ideas, energy, and improvements to an organization. CILS has been my home for over 30 years, and I am confident that Heather, with my full support and that of staff, can enhance CILS and keep it the premier non-profit Indian law firm it has always been.

I am looking forward to my new role as Legal Director, which will allow me to devote all my attention to being an Indian law lawyer once again and working more closely with our great team of CILS attorneys and advocates. Doing Indian law and representing Native American individuals and tribes has been my passion for the 36 years of being an attorney. It was an honor and a privilege to be the Executive Director of CILS for the last eight years. Still, I am looking forward to my new position and contributing to the legal program that I love and the communities we serve.

Welcome, Heather, and this new chapter at CILS.

With appreciation,
Dorothy Alther
CILS Executive Director

California Indian Legal Services Announces Heather Hostler as Next Executive Director

SACRAMENTO, CA, August 30, 2021 – The Board of Trustees of California Indian Legal Services is honored to announce that it has selected the California Department of Social Services Office of Tribal Affairs Director Heather Hostler to be CILS’ next Executive Director. Heather will succeed current CILS Executive Director Dorothy Alther.

“It is my pleasure to announce that the CILS Board of Trustees has hired the new Executive Director, Heather Hostler. She will be the ED beginning September 7, 2021. Heather has a Bachelor of Arts degree in Native American Studies from Humboldt State University and over twenty years experience working with tribal governments,” said Mark Romero, Board Chair of California Indian Legal Services. “Let’s all welcome her and work with her towards a bright future for CILS.”

Heather has garnered an outstanding reputation as a passionate advocate and positive change maker for Native Americans in California in her current role as Director of the Office of Tribal Affairs in the California Department of Social Services. Before that, she was the Chief Deputy Tribal Advisor to the Office of Governor Edmund G. Brown. She served as the Native American Liaison at the California Department of Alcohol and Drug Programs and the Program Manager for Grants and Scholarships at the Humboldt Area Foundation. She also served as the Executive Administrator for the Hoopa Valley Tribal Chairman. She began her career at Native Cultures Fund and North Coast Cultural Trust and currently serves on the Tribal Court State Court Forum.

“I am excited to start my new chapter of leading CILS,” said Heather Hostler. “As someone who grew up on the Hoopa Valley tribal village of Tak’mil-ding, I have a deep appreciation for the interconnected struggles of Native American families and a personal connection to their struggle for racial, economic, and environmental justice. Today, Native Americans are on the frontline of democracy reform, and legal aids like CILS will continue to lead the charge for every major social issue for their communities. CILS will continue the fight for a fairer, more just society, every day, for as long as it takes—just like they have always done for over fifty years.”

“I am delighted that the board has selected Heather Hostler as CILS’s next Executive Director. The board could not be more thrilled for the continued growth and development of our organization under her leadership,” said CILS Vice-Chairman Joe Ayala. “Serving on the CILS board has been an opportunity for me to grow and give. I am grateful to all the dedicated partners, lawyers, and advocates that I have been fortunate to work with along the way. CILS’ fight for a just, free, and equitable society for all has never been more important, and Heather is the right leader for this important moment.”

Indian Wills – Planning for the Inevitable

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By Mike Godbe, CILS Bishop office Staff Attorney

It is often said, “nothing can be said to be certain, except death and taxes.” Because taxation in Indian Country is often uncertain (e.g., sales and use tax, property tax, etc.), this leaves death as the only certainty for Native Americans.

Death: the only certainty!

Well, now that I’ve got you feeling upbeat about how we’ll all be kicking the bucket someday, it’s a great time to remember that it’s never too early to start end-of-life planning!

For Native Americans who own an interest in an allotment or have money from their allotment in an Individual Indian Money (IIM) Accounts (referred to “trust assets”), there is a special set of probate rules for giving (“devising”) these assets by will.

Making a Valid Indian Will
While under state law a handwritten will with no witnesses, or a type-written will with two witnesses, may be valid, this state rule is not valid for leaving your trust assets to a relative or loved one. You must execute a will (“Indian Will”) that meets the requirements found in Title 25 of the Code of Federal Regulations, Subpart A (25 CFR §§15.1 – 15.12) to transfer trust assets.[1]  Some of these requirements are that, in addition to having 2 disinterested witnesses, the testator and witnesses must all sign Affidavits with specific language in the presence of “an officer authorized to administer oaths,” such as a notary, and contain specific language.

CILS Attorneys and Advocates have many years of experience assisting clients in drafting valid Indian Wills for their trust assets.

A Valid Indian Will can also Satisfy California Law  (Combined Will)
A valid Indian Will can meet the less-stringent requirements for a valid will under California law (i.e for transferring personal property and non-trust land).  (see Probate Code § 6110-6113). This means that you don’t need two wills– one for your trust and one for your non-trust assets—- as long as the more stringent requirements for Indian Wills are met.

Wills are also an appropriate place to record any specific wishes you may have following your passing. For example, whether you would like to be buried or cremated, where your ashes should be spread, whether you want a traditional burial ceremony, if your body should be left undisturbed for a certain period of time, and anything that requires the consent of your next of kin such as an autopsy. These can be hard conversations for families to have and CILS Attorneys and Advocates can help you navigate these challenging considerations.

What Happens to my Trust Assets if I Die Without Making a Valid Will?
If you die without a will, your trust assets will pass according to the rules set out in the American Indian Probate Reform Act of 2004 (AIPRA).[2] AIPRA creates specific rules for succession (transferring) of trust assets, which differ depending on whether the individual who died intestate (without a will) owns greater or less than 5% interest in the allotment being probated.

Before AIPRA was enacted, if there was no will, Indian trust assets would be distributed by following state law. As a result, throughout the country there was wide variation in how trust assets would be distributed among the heirs of deceased allottees. This of course is the legacy of the Allotment period (1877-1934) that resulted in severe fractionation of Indian trust lands. It is not unusual for Indian allotments to have hundreds of living interest holders sharing the land as tenants in common, with each only owning a fraction of one percent. A primary goal of AIPRA was to reduce – or at least lessen – this fractionation.

The AIPRA does not apply if a Tribe has its own Probate Code that has been approved by the Bureau of Indian Affairs.

CILS Is Here to Help
If you have more questions or are ready to move forward and make an Indian Will, don’t hesitate to contact your local CILS office.

For additional resources, check out the Trust Assets and Probate section of CILS’ Self-Help resources, where you can find AIPRA resources and helpful guides.

[1] This section of the Code of Federal Regulations does not apply to members of the Osage Nation and the “Five Civilized Tribes” of Oklahoma.

[2] If your tribe has its own probate code that has been approved by the Secretary of the Interior, then the tribe’s probate code, not AIPRA, applies.

An Overview of Indian Water Rights in California – Part 2 Federal Winters Rights

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By Mike Godbe, CILS Bishop office Staff Attorney

This is the second in a three-part series providing an overview of Indian Water Rights in California. This installment focuses on federal reserved rights, also known as Winters rights. Part 1 on state water rights may be found here.

The Winters doctrine is a federal common law doctrine that establishes that an American Indian tribe has the right to access enough water to meet the needs of the tribe, even where there is no treaty provision expressly recognizing such a right. The doctrine states that when the United States withdraws land from the public domain to establish an Indian reservation, the federal government implicitly reserves the amount of water necessary to fulfill the purpose of the reservation. The doctrine is based on the idea that when Congress reserved lands for the Indians, it did so to ensure that the land would be useful and sustain the tribal community.

The Winters doctrine derives its name from the 1908 Supreme Court case Winters v. United States. The Court held that the federal government had transitioned the Fort Belknap tribal members in Montana from a nomadic lifestyle to an agricultural and pastoral way of life. As demonstrated in Winters and subsequent cases, the purpose of creating a reservation is a question of Congressional intent, inferred based upon the specific legal documents and facts surrounding the creation of the reservation.

In creating the Fort Belknap Reservation, Congress sought to force the A’aninin (Gros Ventre) and the Nakoda (Assiniboine) people to give up large areas of land that they moved freely in and make them into farmers confined to a much smaller area. The Winters doctrine holds that, by reserving federal land for this purpose, Congress impliedly reserved the water rights necessary for the purpose (agriculture).  Ironically, the case that enshrined federal reserved water rights for Indian people came about in the same federal policy era that oversaw the reduction and breaking-up of tribal land and tribal governments. Such are the paradoxes and contradictions contained within the long history of Federal Indian Law.

Courts have noted that reservations were created to serve as homelands for tribes and thus require enough water to account for “changing circumstances” and “meet[ing] future as well as present needs.” Some courts have taken this rationale to heart, for example, by holding that the purpose of reservations is to be construed liberally, such that the “purpose” of a reservation is amenable to modern policies of self-determination.[1]

Because Winters rights are implied as those rights reserved to effect Congress’s purpose, they do not apply to situations where Congress explicitly provides for a tribe’s water rights when it creates a reservation. The idea here is that it is not necessary to envision what Congress intended with regard to water rights when Congress has expressly stated its intensions.

In 2017, the 9th Circuit Federal Court of Appeals ( includes California) held that the Winters doctrine applies to groundwater.[2]

Winters rights contain features of both riparian and appropriative water law systems (see Part 1 of this series). In a riparian systems, Winters rights are not lost through non-use. Under an appropriative systems, the tribe’s priority date will correspond to the date the reservation was created, which can be junior or senior to neighboring water interests. Although Winters rights are federal and thus generally superior to state-law-created water rights, it is an established understanding that Winter rights do not trump the superior rights of prior appropriators under state law.[3]

Winters Rights and  Allotments

Allotments are federal lands held in trust for individual Native Americans rather than for tribes. There are generally two types of allotments: 1) those that were created from former tribal lands and are within the boundaries of the reservation that was broken up (as initiated by the General Allotment Act or “Dawes” Act of 1877), and 2) ones that were created from the public domain, and exist separately and independently from any tribe’s reservation (“public domain allotments”).

Courts have conclusively held that Winters rights apply to allotments within the bounds of reservations, that the priority date extends back to the earlier creation of the reservation – not the creation of the allotment, and that allottees are entitled to a fair share of the tribal reserved water rights proportional to the relevant size of the irrigable lands of the allotment to that of the entire reservation. Colville Confederated Tribes v. Walton, 647 F.3d 42, 53 (9th Cir. 1981).

In contrast, we can find no case law explicitly applying Winters rights to public domain allotments. However, considering the purpose of public domain allotments, federal case law regarding the reserved rights doctrine applying to allotments within reservations, and the historical use of public domain allotments to provide land for the allegedly “landless Indians,” there is a strong argument that the Winters doctrine also applies to public domain allotments. Indeed, it has been found to apply to all other land held in trust for Indian people.

What’s Next

In part 3 of this series, we will explore California’s Integrated Regional Water Management system under California law and how it can create opportunities for both recognized and unrecognized tribes to engage with other stakeholders and obtain funding for water-related projects.

[1] In re Gila River Sys. & Source, 35 P.3d 68, 77 (Ariz. 2001).

[2] Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262 (9th Cir. 2017).

[3] See Arizona v. California, 373 U.S. 546, 600 (1963); Cappaert v. United States, 426 U.S. 128, 138 (1976); see also Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1268 (9th Cir. 2017).

CILS Board of Trustees—Who Are They?

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By Dorothy Alther, Executive Director

Federal law and regulation dictate who is eligible to be a CILS Board of Trustees member. The Legal Service Corporation (LSC), CILS’s largest funding provider, is bound by these regulations and ensures that legal service programs it funds follow the rules. The LSC regulations do not restrict the number of Board of Trustees CILS can have, but rather define the percentage of the various groups that must be represented on the Board.

LSC regulations provide that 60% of recipients governing be attorneys, one-third of the Board must be persons who are client eligible, and the remainder of the Board members may be appointed or selected by the Board but must make the Board, as a whole, reasonably reflective of the diversity of the areas served by the recipient.

Pictured from left to right are our Principle Office Staff and Board Members: Executive Director Dorothy Alther, Board Member Joe Ayala, Board Member Merri Lopez-Keifer, Board Member Sheila Quinlan, Board Chairman Mark Romero, Board Member Robert Gonzalez, Board Member Gabe Cayton, Board Member Victorio Shaw, Director of Administration Patricia De La Cruz-Lynas, and Director of Marketing and Development Nicole Scott.

CILS’ has eleven (11) Board members falling within these required categories. CILS divides the state into two (2) equal regions: the north and the south. Community representatives on the Board are recruited from each area. To be eligible for an appointment to the CILS Board as a community representative, an individual must be California Indian. California Indian tribes and organizations make recommendations for the appointment of community representative. A recommendation can come from: federally recognized Indian tribes, terminated Indian tribes, unrecognized Indian tribes, Indian associations, organizations, and groups. The individual must be a resident of California and reside in the geographic area they will represent (see below which region the applicant can represent).

Northern California Counties include: Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Napa, Nevada, Placer, Plumas, Sacramento, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba.

Southern California Counties include: Fresno, Imperial, Inyo, Kern, Kings, Los Angeles, Monterey, Orange, Riverside, San Benito, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Tulare, and Ventura.

Board members are expected to attend four (4) quarterly Board meetings each year; at a minimum of three (3) via teleconference and one (1) in-person meeting (in-person attendance for all meetings is encouraged), attend at least one (1) CILS sponsored event per year, participate on 1-2 Board committees, contribute an average of 1-2 hours per month between quarterly meetings, attend Board development retreats and training, participate in annual strategic planning sessions and fundraising efforts, make a personally significant financial contribution each year (100% participation from the board is expected), and actively contribute their expertise to the Board’s important role in CILS’ organizational and programmatic affair, including recruiting new Board members and community relations.

How to Apply:  All applications are comprised of:  1) a letter of interest and 2) a resume from the individual.  In their letter of interest, applicants should describe not only their interest in serving on the CILS Board but also specific skills, experience, or areas of expertise they would bring to the Board.  Applicants should indicate the name of the California Indian tribe, organization, or group that would support their application.  Before appointment, a formal resolution, support letter, or similar action from the recommending organization or tribe must be submitted.  Applications can be submitted directly to boardapplications@calindian.org.

What Constitutes a Tribal Constitution?

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By Mark Vezzola, CILS Directing Attorney Escondido Office

Before 1934, most Indian tribes did not have written laws and certainly not constitutions. There are exceptions, however. The Cherokee Nation adopted its first constitution in 1827, establishing a three-branch system of government not unlike that of the United States. That does not mean tribes were without law before European colonization and American expansion; tribes, depending on their size and traditions, governed through councils of elders or individual leaders to ensure communal safety, protect resources, and punish wrongdoers.

How and why, then, did tribes begin adopting written constitutions when unwritten rules and social norms worked for millennia? After a dark period that saw the end of the Indian wars and the advent of boarding schools, Bureau of Indian Affairs Commission John Collier, an appointee of Franklin Roosevelt, worked behind the scenes on the Indian Reorganization Act (IRA). The far-reaching 1934 law ended the allotment of Indian land, authorized the Secretary of Interior to take land into trust for tribes, and attempted to rebuild tribal self-government. The Act represented a compromise between progressives who supported tribal sovereignty and those who felt threatened by it.

To promote what he considered modernized, effective government, Secretary of Interior Harold Ickes created a model tribal constitution and dispatched federal agents to Indian reservations across the country to promote it. Elections, an unusual way for most tribes to pass or change laws, gave tribes the opportunity to decide if they would accept the IRA and its constitutional governments. As an enticement, congress appropriated millions of dollars in loans available only to those tribes that adopted the IRA. About 177 did just that, while 81 tribes rejected the IRA altogether. Some believe that tribal members who did not vote in IRA elections counted as “yes” votes by federal officials.[i]

The constitutions offered to tribes under Collier’s “Indian New Deal” did not look like the United States constitution. Generally, BIA agents presented tribes with boilerplate forms that included one executive branch of government, usually a tribal council, to pass laws and negotiate contracts. They did not create tribal courts or legislatures (which were not prohibited either), perhaps because tribes were not yet accustomed to developing written laws or ensuring BIA control over tribal governments. Maybe the biggest difference between tribal constitutions and those of states was the requirement for the Secretary of Interior to approve tribes leasing their land and hiring an attorney.

Over time, tribal constitutions evolved from boilerplate forms into more complex bodies of law reflecting the tribe’s customs and preferred styles of self-governance. The constitution of the Mandan, Hidatsa, and Arikara Nation of North Dakota, for example, authorizes its tribal court to hear suits under the Indian Civil Rights Act of 1968. Others do not. Section II of the Hopi Constitution and By-Laws outlines enrollment criteria for tribal members. The Mississippi Band of Choctaw Indians dictated the frequency and timing of elections in its constitution. Keep in mind; not all tribes have constitutions. Some, like the Navajo Nation, opted against it.

Tribal constitutions are as diverse and fascinating as their origin history. Although they initially did not reflect traditional governance, they marked a huge leap away from the assimilationist policies of the previous last century.

[i] See Pevar, Stephen L. The Rights of Indians and Tribes, Oxford University Press, 2012, p. 86.