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

“Knowledge is Power”: CILS’ Focus on Tribal Community Education

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By Dorothy Alther, CILS Executive Director

Federal Indian law is complex and is a highly specialized area of legal practice. Lawyers outside the practice of Indian law, including state and federal court judges, are often as confused as the public at large on the maze of jurisdictional laws and regulations that govern in Indian Country. Yet, the lives of tribal community members, daily, must navigate the tribal, state, and federal laws that control their housing, health care, environment, parent and child relationships, income tax, their government institutions such as tribal courts, law enforcement, and their economic enterprises.

In addition to providing direct legal representation to Native Americans and tribes, CILS provides Indian law training and presentations. The purpose of the training is to help tribal members, leaders, and outside agencies and departments that interact with the tribal community better understand the laws that apply (and do not apply) in Indian Country. Our training and educational presentations are developed for the audience we are speaking to and are designed for interactive engagement to respond to questions without intimidation or hesitation. Our community education services are free if opened to other tribes and tribal communities.

CILS has a vast library of existing training and educational materials which it expands upon as new laws, regulations, policies, and issues evolve in Indian Country. The following is a non-inclusive list of training topics that CILS has developed and that our experienced and talented attorney staff are available to provide to your community upon request:

Indian Child Welfare Act (ICWA)

  • Introduction to ICWA and BIA Regulations
  • Qualified Expert Witnesses
  • Active Efforts
  • Criminal Background Checks for Tribally Approved Homes
  • Tribal Customary Adoptions
  • Tribal ICWA Advocate Training

Public Law 280 Jurisdiction

  • Introduction to PL 280
  • Policing in a PL 280 State
  • Regulatory Jurisdiction
  • Retrocession and Re-Assumption of Federal Jurisdiction Under the TLOA

Developing Tribal Courts

  • Training Tribal Court Advocates
  • Expanded Jurisdiction Under TLOA

Cultural Resource Protection Laws

  • Tribal Consultation Under State and Federal Law
  • NAGPRA

American Indian Probate Reform Act

  • Simple Estate Planning

Section 184-Federal Guarantee Home Loan Program

Tribal Law and Order Act

Indian Civil Rights Act

Economic Development

Expungement

Domestic Violence

  • Code Development
  • Enforcement of Tribal Court DV Orders
  • Expanded Jurisdiction Over Non-Indians for Acts of Domestic Violence

Please contact your nearest CILS Office if your tribe or tribal community would like to host a training or education presentation for your community.

Community Education

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By Mark Vezzola, CILS Escondido office Directing Attorney

This blog entry is devoted to a concept rather than a specific issue. California Indian Legal Services has made community education a priority since its creation in 1967. In addition to representing and advocating on behalf of Native American individuals, tribes, and organizations, CILS is committed to sharing information and resources related to federal Indian and Tribal law with all sectors of our community, fellow members of the state bar to law enforcement officers to Tribal elders.

Figure 1 – CILS Escondido office Directing Attorney Mark Vezzola presenting to a group of San Diego City Attorneys in 2019.

In normal times, grants allow CILS attorneys to attend and participate in conferences and presentations across California. These are not normal times, however. Since the COVID-19 pandemic effectively stopped in-person events, CILS adapted by educating groups and individuals through virtual and remote means such as Zoom, Microsoft Teams, and other platforms. Read about some of the Escondido office’s recent community education engagements below:

Addressing Tribal Court-State Court Forum – August 13, 2020

The California Tribal Court-State Court Forum, a statewide entity made up of Tribal and state court judges that advises the California Judicial Council on overlapping jurisdictional issues, asked me to present on potential issues resulting from the Supreme Court’s monumental ruling in McGirt v. Oklahoma (2020), 591 U.S. ___, 140 S. Ct. 2452. In a 5-4 decision, the Court held that the federal government never disestablished the Muscogee Creek Reservation in Oklahoma, meaning the eastern half of the state remains Indian country for purposes of Tribal jurisdiction.

Tribal Will Clinic – October 27-28, 2020

The Escondido office of CILS supervised ASU law students in hosting a will clinic for southern California to encourage Tribal members to create executed wills, powers of attorney, and/or healthcare directives. As the supervising attorney, I met with law students in private to discuss clients’ wishes and reviewed preliminary drafts of estate planning documents. We protected client privacy and safety by using confidential online meeting rooms and observed all safety protocols to allow twenty Tribal members to sign their documents at the Tribal administration center.

Fair Housing Conference Panel – February 10, 2021

Last month, I participated in a panel called “Sources and Applications of Law under Reservation and Urban Housing Programs” as part of a statewide fair housing conference on the history leading to loss of land and limited housing options in Indian country. All planning and presenting was remote thanks to PowerPoint and Zoom.

What kind of community education does CILS offer? Well, this blog is just one example of how CILS shares information and ideas related to our work. Other written materials developed by CILS and available at no cost include handouts, resource guides, and even an ICWA bench guide for state court judges. In terms of presentations, CILS participates in conferences and panels across the country, on a variety of topics including but not limited to the following:

  • Development of Tribal Economic Development Corporations
  • Public Law 280 (for state, local, and Tribal law enforcement, government leaders)
  • Indian Child Welfare Act (developments, regulations, case law updates)
  • AIPRA and estate planning (wills, powers of attorney, healthcare directives)
  • Domestic Violence (rights, resources, prevention, etc.)

As they say, the show must go on. Like all of us, CILS anxiously awaits life returning to normal, whatever that is, and remains available to educate the community on our work and updates and developments in federal Indian and Tribal law.

New COVID-Related Eviction Protections for Off-Reservation Renters

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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.

 

The Myth of the Monthly Check for Native Americans

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By Mark Vezzola, CILS Escondido office Directing Attorney

About ten years ago, I attended a social event for young professionals at an upscale hotel in downtown San Diego (back then, I was young). As almost everyone was a stranger to me, most conversations began with introductions and inquiries about our jobs. One man, upon learning that I represented tribes, shook his head and said something like, “sorry, but I don’t think we should give reparations to Indians.” I wondered who he was talking to as no one had mentioned reparations. But his belief, while mistaken, is common. Many people think Native Americans get a monthly government check as some form of apology.

The truth is that Native Americans do not receive monthly checks from the federal government, although many think they should. The United States does not pay reparations to indigenous people as a way of saying “I’m sorry” for centuries of genocide, land theft, and disease outbreaks. There are, however, several reasons why a Native American might receive a check in the mail or automatic deposit. Some specific federal laws authorized one-time payments to compensate Native people for taking land, such as the 1971 Alaskan Native Claims Settlement Act passed by congress to settle all land claims brought against the United States by Alaskan Natives.

Some tribes issue quarterly or monthly per capita payments to their members from the profits of tribally owned enterprises such as casinos. The amount and frequency of these payments depend on several factors, including the success of the business, the overall fiscal health of the tribe, and the tribal government’s decision on whether and how to distribute wealth. Not all tribes have casinos, and some that do still struggle financially. One southern California tribe filed for bankruptcy in 2012 after its casino folded. Non-gaming tribes within the state receive revenue sharing trust payments from gaming tribes and sometimes divide these funds among individual tribal members. Again, the payments do not come from the United States.

Other sources of financial payments include various government benefit programs which have eligibility criteria; it is not automatic, nor is it limited to Native Americans. TANF, or Temporary Assistance for Needy Families, for example, is a federal program designed to help low income families attain self-sufficiency. Individuals with children can apply for TANF funds to supplement their income. Federally recognized tribes can apply to administer and operate their own TANF programs to accomplish one of the program’s purposes for eligible individuals and families. The funds go to families, however, and are barely enough to pay for basic living expenses, let alone support a lavish lifestyle.

The myth of the monthly check could also have its roots in lease payments made to Indian landowners who receive royalties from mining and grazing on allotment land held in trust for them by the United States. This revenue, however, is not a gift, but part of the federal government’s trust responsibility to manage land allotted to Native Americans in the late nineteenth or early twentieth centuries (the allotment process ended in 1934 with the passage of the Indian Reorganization Act). The amount of lease payments depends on the income generated by the land, the owner’s proportionate share, and the terms of the lease.

The bottom line is Native Americans do not get automatic monthly or quarterly checks from the United States government. Maybe they should, and maybe one day they will, but at this time it is merely a myth.

For more information about funding for tribes, government benefits, or general questions about federal Indian law, contact your local CILS office.