November 2022 California Native Voter Guide

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Check out CILS’ updated November 2022 California Native Voter Guide!

Click image to Open Voter Guide

Restoring the Voting Rights Act: Protecting the Native American and Alaska Native Vote

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By Sheila Quinlan, CILS Escondido Office Staff Attorney

Early November is election season nationwide.  While blatant, state-sanctioned barriers to voting for Native Americans ended more than 50 years ago, many barriers—whether intentional or accidental—still hamper access to voting for many native communities.  In some places, ill-intentioned state legislatures take advantage of structural deficiencies in Indian country to suppress the native vote.  Poor roads, remote residences, and lack of access to reliable transportation, for example, can make it challenging for voters on reservations to make it to far-flung polling places off reservations to cast their ballots.  State mandates that require identification with residential addresses pose barriers to many reservation residents who may not have physical addresses.

Recently, Senator Ben Lujan, a Democrat from New Mexico, introduced legislation, the Native American Voter Protection Act, that would seek to promote and protect the Native American vote.  Some key features of the proposed legislation include requiring that states offer on-reservation early voting, registration, and polling places along with drop boxes for ballots, and that they accept tribal identification cards as a valid form of voter identification.  The proposed legislation also bans states from placing a cap on the number of ballots collected on Indian tribal lands, allowing organizations to help deliver ballots for tribal members on reservations who may live far from polling places and lack mailboxes at their homes.

During a recent hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, Senator Richard Blumenthal, a Democrat from Connecticut, highlighted that one million eligible Native Americans are not registered to vote.  He described the proposed legislation as a means of imposing accountability on public officials whose actions often have a disparate impact on Native American voters.  One witness at the hearing described a polling official’s decision not to put a polling place on a reservation, as she did not want to “catch COVID on the reservation.”  In fact, COVID-19 case numbers were comparable on the reservation as compared to the broader surrounding communities in which the polling official worked.   Witnesses at the hearing also emphasized the importance of the legislation in light of the Supreme Court’s recent erosion of the 1965 Voting Rights Act in Brnovich v. Democratic National Committee (2021) 594 U.S. ___ and Shelby County v. Holder (2013) 570 U.S. 529.

On October 5, 2021, the Senate introduced a modified John R. Lewis Voting Rights Advancement Act, which incorporated the Native American Voting Rights Act (NAVRA) as part of the bill.  The aim of the broader John R. Lewis Voting Rights Advancement Act is to restore key provisions of the now-eroded Voting Rights Act of 1965.

Unfortunately, due to political gridlock and a deeply divided Senate, on November 3, 2021, a Republican filibuster blocked both debate and a vote on the legislation.  While the Act had majority support in the Senate, the vote fell short of the needed 60 votes to advance over Republican opposition.  Despite the setbacks, one still hopes that in the case of voting rights, as Martin Luther King, Jr. noted, “The arc of the moral universe is long, but it bends toward justice.”

Efforts to protect the Native American vote are a topic currently on President Biden’s agenda.  Earlier this year, he established a Native American Voting Rights committee.  The committee will produce a report next spring outlining recommendations for protecting the Native American vote.  The committee held several tribal consultations throughout the year addressing difficulties in voting that tribes and tribal members may have faced.  The committee also sought to collect ideas for remedying any challenges faced in voting.  The President’s Committee is still accepting written comments until November 12, 2021, at consultation@bia.gov.

Resources

  1. https://www.calindian.org/california-native-voter-guide-2020/
  2. https://www.hoganlovells.com/en/publications/hiltime-with-hilary-tompkins
  3. https://www.judiciary.senate.gov/meetings/restoring-the-voting-rights-act-protecting-the-native-american-and-alaska-native-vote
  4. https://www.npr.org/2021/10/20/1040238982/senate-democrats-are-pushing-a-voting-rights-bill-republicans-have-vowed-to-bloc
  5. https://www.nytimes.com/2021/10/20/us/politics/senate-voting-rights-filibuster.html
  6. https://www.politifact.com/article/2021/oct/11/whats-voting-rights-bill-named-john-lewis/
  7. https://www.brennancenter.org/our-work/court-cases/shelby-county-v-holder
  8. https://www.narf.org/senate-testimony-voting/
  9. Addressing Barriers to Native American Voting Rights: A Tribal-Federal Roundtable Discussion https://www.youtube.com/watch?v=Jh0ITcYBQ3M&t=12s
  10. https://vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.pdf
  11. https://www.hcn.org/articles/indigenous-affairs-law-6-things-you-should-know-about-the-2021-native-american-voting-rights-act
  12. https://www.narf.org/brnovich/
  13. https://www.pbs.org/wgbh/americanexperience/features/vote-overcoming-barriers-for-native-american-voters/
  14. https://thehill.com/homenews/senate/577643-senate-will-vote-on-john-lewis-voting-bill-as-soon-as-next-week
  15. https://www.congress.gov/117/crec/2021/11/01/167/191/CREC-2021-11-01-pt1-PgS7535.pdf
  16. https://www.narf.org/voting-tribal-consultation/
  17. https://www.nytimes.com/2021/11/03/us/politics/senate-republicans-voting-rights-act.html

 

California Wildfire Information

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The following resources have been updated and are available for tribal communities impacted by the wildfires.

Inter Tribal Long Term Recovery Foundation link

Summer 2021 Ca Wildfires Helping Handbook

 

211007 Helping Handbook Wildfires Supplement

 

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.

Frequently Asked Questions

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By Kia Murdoch, CILS Sacramento office Staff Attorney

I’m Native American, can CILS help me with my legal issue?

CILS offers advice and representation in cases that involve issues unique to Native Americans, under either federal Indian law or related state law. “Indian law” refers to the field of law based on the political status of Tribes and Tribal members. A legal issue that involves a Native American does not automatically bring the issue into the field of Indian law. For more detail on what problems are considered Indian law, please read our recent blog post here: https://www.calindian.org/what-is-indian-law/.

While there are many legal aid organizations in California, CILS is the only one dedicated solely to the field of Indian law. If you are Native American, but your legal issue is not an Indian law issue, CILS can refer you to other legal aid organizations.

I was adopted, but I believe my biological parents were Tribal members. Can CILS help me unseal my adoption records to help me enroll?

Yes. Adoption records are sealed and confidential and may only be unsealed by court order. CILS can help you prepare the necessary documents to petition the Superior Court to order your adoption records to be unsealed. You will need to demonstrate to the court that you have a reasonable belief your biological parents or one of them is affiliated with an Indian Tribe.  If you do not have documentation to support your belief, a good first step is to submit a request to the California Department of Social Services (CDSS) for a non-identity report of your adoption because they often include useful information about a biological parent’s background (and therefore can be submitted to the court as evidence to support your reasonable belief).

How do I become a Tribal member?

Each Tribe has unique membership qualifications and processes. The first step is to contact the Tribe you seek to enroll in and have ready information about your family, such as names of immediate and extended family members who are Tribal members or affiliated with the Tribe. It’s important to provide the Tribe with correct spellings of names and accurate dates of birth and/or death; failure to do so may prevent the Tribe from verifying your eligibility for enrollment. You can find contact information for all federally-recognized Tribes at: https://www.bia.gov/tribal-leaders-directory.

If you are interested in the significance of indigenous DNA versus eligibility for Tribal enrollment, check our blog post on the subject: https://www.calindian.org/native-american-ancestry-family-lore-oral-swabs-and-enrollment-cards/

My family is involved in a child custody case, does the Indian Child Welfare Act apply to us?

Please refer to our blog post on who the ICWA applies to: https://www.calindian.org/when-does-the-indian-child-welfare-act-icwa-apply/.

I’m Native American, where do I get my check?

There are many misconceptions about the “Indian check.” Please see our blog posts for more information: https://www.calindian.org/mythical-indian-benefits/;  and https://www.calindian.org/the-myth-of-the-monthly-check-for-native-americans/

Can CILS help me draft my Indian Will?

Yes. Indian wills are very important when the Testator (the person writing their will) has property or assets unique to Native Americans. Check out past CILS blogs for more information:

https://www.calindian.org/where-there-is-a-will-there-is-a-way/; and

https://www.calindian.org/american-indian-probate-reform-act-aipra-and-indian-wills/

My relative has passed, and I am supposed to inherit land from them.

The Bureau of Indian Affairs (BIA) has a special probate process for Indian trust land, aka Allotments. The first step is to notify the BIA of your relative’s passing and provide them with a certified copy of the death certificate so they can open a probate for your relative

I own land, but not sure if it’s “allotment” or “assignment” land. How do I find out?

Allotment land is issued to an individual Indian by the federal government. While the allotment land may be leased to someone or even sold outright, the Bureau of Indian Affairs must approve the lease and sale. Like tribal trust land, an allotment is owned by the federal government and held in trust for the individual Indian.  This is distinct from assigned land, which is Tribal trust land assigned to an individual tribal member by the Tribe. Such land cannot be leased or sold in fee simple by the assignee (i.e., the individual Indian). Read more about these two types of land HERE https://www.calindian.org/indian-allotments-and-co-ownership/

What happens to my Indian allotment if I leave it or gift deed it to a non-Indian or an Indian that is not enrolled in a federally recognized tribe?

Non-Indians cannot hold Indian land in trust, aka an allotment. If you nonetheless want to leave your allotment to a non-Indian, you can, but the land will be taken out of trust (becomes subject to state and local taxes and regulations). However, under the American Indian Probate Reform Act (AIPRA), if the non-Indian is your spouse and they are living on the allotment at the time of your death, they will be given a “life estate” in the allotment. Meaning, they can live on the land until their death, and the land will not be taken out of trust. As for heirs that are Indian but not members of a federally recognized tribe, the AIPRA has a unique and broad definition of “Indian” and “eligible heir.” AIPRA allows your heirs who are not members of a recognized Indian tribe to inherit Indian trust land without losing its trust status.

Keep an eye out for a future blog post expanding on this complex area of law.

Can my Tribal per capita be garnished for child support?

A garnishment order is issued when a parent, after following a legal process, demonstrates to a court that the other parent owes outstanding child support. A garnishment order is a demand from the court that the debtor parent’s employer, bank, or any third party holding money for the debtor parent, withhold a certain amount from the account or salary. And turn the amount over to the parent who has the order to satisfy the child support debt. However, when the money is sought through a garnishment order is held by a Tribe in the form of a tribal per capita payment, the order is non-binding, and the Tribe cannot be forced to do a withholding or pay the creditor out of the debtor parent’s per capita payment. Tribes have sovereign immunity and are not subject to state court orders unless they consent to the order.

However, State courts can consider per capita distributions as income when calculating child support payments.

Is my per capita distribution subject to state taxation?

Tribes with gaming facilities in California are permitted to make per capita distributions of their gaming profits to their members. Your Tribal per capita distribution will be exempt from California state taxation if you meet the following: (1) you are an enrolled member in the Tribe making the distribution; and (2) you live on your Tribe’s reservation or Rancheria.

I’m going through a divorce, is my Tribal per capita community property?

Unfortunately, this question is more complex than it seems. Considerations such as whether Tribal per capita disbursements were placed in a community bank account or used for community purchases may affect how a court categorizes distributions received during the marriage. CILS can provide referrals to family law experts upon request.