CILS Brackeen News Flash

On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

However, per our preliminary review, a majority of the Fifth Circuit found three portions of the ICWA unconstitutional under the anticommandeering doctrine:

  • 25 USC 1912(d) – active efforts requirement as applied to state agencies;
  • 25 USC 1912(e) and (f) – testimony of a qualified expert witness; and,
  • 25 USC 1915(e) – placement record-keeping requirements.

The anticommandeering doctrine, which springs from the Tenth Amendment, says that the federal government cannot make states adopt federal laws as their own nor enforce those laws.  It’s important to remember that in states like California, which have codified the ICWA into state law; the anticommandeering doctrine cannot be used to invalidate state law because it only addresses the compulsory adoption and enforcement of federal laws.

Flowing from the anticommandeering holdings, the Fifth Circuit also held certain related portions of the BIA’s 2016 ICWA regulations to be invalid.  California has already incorporated those regulations into state law (as of 2019 via AB 3176), so ICWA cases here will be unaffected for the same reasons as above.

There is a strong likelihood that one or both parties will ask for a review by the U.S. Supreme Court.  The Supreme Court accepts very few of the many petitions for review it receives, although the chances of it granting certiorari do increase with the creation of a split amongst the federal appellate courts, as the Brackeen decision does.

It is worth noting the lead portion of the decision calls out the fact that the states challenging the ICWA’s constitutionality (Texas, Louisiana, Indiana, and Ohio with its amicus brief) are home to only a tiny fraction of the nation’s Indian tribes and citizens, while the 26 states who came out in favor of the law, including California, are home to a vast majority of both.

Again, CILS will have further analysis to offer as we work our way through this lengthy decision.  We will continue to monitor the case if a review is sought and will continue to be watchful for attempts to push anti-ICWA arguments in California.

Stay safe!

TRIBAL ALERT – Tribes Disqualified from ARP Public Safety and Justice Funding

To All Tribal Leaders;

The BIA is proposing to set aside $772.5 million dollars of the American Rescue Plan (ARP) appropriation for “public safety and justice (PSJ)”.  This set aside will be distributed “based on the existing allocation of base (reoccurring annual) funding level for OJS-funded, tribally operated, programs.”  This means the funding will be allocated to tribes based on their annual 638 contract funding levels for PSJ services which includes tribal courts and law enforcement.

Unfortunately, the BIA does not execute 638 contracts for PSJ funding to tribes in Public Law 280 states (except for Self-Governance tribes).  Since California is a Public Law 280 state, tribes do not have 638 contracts for PSJ funding and thus there is no “base (reoccurring annual) funding level” in which to allocate the $772.5 million to California Tribes.

CILS strongly encourages Tribes in their written comments to the BIA that it develop a fair and equitable funding formula for the distribution of the $772.5 million set aside so that California Tribes, and all tribes in Public Law 280 states, receive PSJ funding.

Written comments are due tomorrow Wednesday March 31, 2021 and should be sent to consultation@bia.gov.

If you have any questions, would like further information, or need assistance, please contact Dorothy Alther at dalther@calindian.org.

Attached is a sample letter.

Draft Comment Letter

 

The Long and Winding Road to Federal Recognition

By Dorothy Alther, CILS Executive Director

The federal government defines a “tribe” as “a designated group with whom the federal government has established some kind of political relationship or recognition.” Federal recognition entitles tribes to federal benefits, services, provides governmental immunity from unconsented lawsuits, to establish and be governed by their own laws, and to come within federal statutes that protect tribal resources. How and why countless tribes in California are “unrecognized” is beyond the scope of this paper but is a topic for a later date.

There are two paths to federal recognition: filing a petition with the Office of Federal Acknowledgement (OFA) or seeking congressional recognition through legislation, both paths are time-consuming and expensive.

The OFA is housed within the Bureau of Indian Affairs and the petitioning process and recognition criteria is set forth under federal regulations found at 25 C.F.R. Part 83, recently amended in 2015. There are seven criteria that an unrecognized tribe must meet to have a successful petition:

Criterion 83.11(a)- Identifications of Indian entity from 1900 to present: the petitioner must be identified as an “Indian entity” by external sources as it existed contemporary the time of the identifications and should be no more than 10 years. This means the petitioner must find an outside source that identifies the tribe as a “tribe” or a distinct group beginning in 1900 through 2020.

Criterion 83.11(b) – Distinct Community: documentation of the group’s social and cultural events and activities from 1900 to the present.

Criterion 83.11 (c)- Political Influence or Authority: evidence that reflects the petitioner’s political events and activities from 1900 to the present.

Criterion 83.11(d)- Governing documents: Constitution and tribal laws that address enrollment, elections, or other internal matters.

Criterion 83.11 (e)-Descent of current members from historical Indian tribe: this criteria requires a complete genealogy to establish the earliest members of the tribe and that all current members descend from these ancestors.

Criterion 83.11 (f) – Membership is composed principally of persons who are not members of any other federally recognized Indian tribe.

Criterion 83.11 (g) – No congressional legislation that prohibits or terminated the federal relationship.

As you can see meeting this criterion requires in-depth research of historical, anthropological, ethnological, and genealogical work dating back to 1900 and for every decade to current times. In compiling this documentation tribes rely on dedicated tribal members and professional volunteers such as university professors and graduate students. Also challenging is when tribes are faced with “gaps” in their history and no documentation can be found. Remember there were periods in California history of extermination of Native people and the destruction of tribes. California tribes and their members during these periods clearly would not have wanted to be “externally identified” or their cultural practices documented and may have been prevented from exercising “political influence” over their members. As a result, a tribe might have difficulty meeting the OFA criterion.

Even once a petition is completed, it can take the OFA years to review and verify the tribe’s documentation. Most tribal petitions are massive since all facts within the petition must be supported by sources verifying the facts. The 2015 regulatory changes to Part 83 attempts to streamline the review process to make the decision-making process more efficient and expeditious. Time will tell.

Given the cumbersome OFA process, some tribes have turned to Congress for legislative recognition. Even with this alternative route, tribes are often still required to demonstrate their historical existence and that they continue today as organized functioning governments. Because legislative recognition is a political process it is critical that there be no strong opposition to the tribe’s recognition. A congressional representative may shy away from sponsoring or supporting a bill if there is opposition from the county or other tribes back home.

Because most unrecognized tribes have no financial resources they cannot hire a lobbyist to usher their recognition bill through the halls of Congress (House and Senate) and lack the political clout needed to open doors to key politicians. However, strong letter-writing campaigns and perseverance can and does work. Finding friendly congressional representatives to commit to seeing the recognition bill through is the key to success.

TRIBAL ALERT: Tribal Letters of Support for Federal Legislation to Extend Coronavirus Relief Funds Deadline

Hopefully, you have received the email sent out today from the Native American Financial Officers Association (NAFOA) urging you to send a letter of support for S. 4898. This new legislation will extend the period for all states, tribes, and territories to use the Coronavirus Relief Fund payments from December 30, 2020, to September 30, 2021. California Indian Legal Services strongly urges tribes to submit the letter of support for S. 4898 using the support letter template provided by NAFOA (download the letter here) or contact CILS for any assistance or questions you may have.

You can reach out to NAFOA’s Executive Director, Dante Desiderio, at Danta@nafoa.org or (202) 631-2003 or Mica Llerandi at mllerandi@calindian.org. Thank you.

 

Stay safe and healthy.

TRIBAL ALERT: Support the Governor Signing Important Native American Legislation

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.