2021: Changes in DOI Leadership, a Win for Tribal Sovereignty, and More

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By Mark Vezzola, CILS Escondido Office Directing Attorney

As 2021 draws to a close, it is time to look back at the last twelve months. If you work in federal Indian law or care about Indian country, there are a number of developments to reflect on. Some changed the political and legal landscape, and a few were major news stories. Many were positive for those concerned about tribal sovereignty.

The U.S. Department of Interior (DOI) has a new leader who is already tackling often overlooked issues affecting Indian country. Deb Haaland, a former congresswoman from New Mexico and an enrolled member of Laguna Pueblo, became the first Native American Secretary of the Interior (which includes the Bureau of Indian Affairs) in March and the first-ever Native American Secretary in any presidential cabinet. Since taking office, Haaland has prioritized investigating murdered and missing indigenous women and examining abuse claims in now defunct federally-funded boarding schools.

More recently but less publicized, Charles “Chuck” Sams III became the first Native American Director of the National Park Service (also part of DOI) on November 19 with unanimous Senate support. Sams is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation with connections to the Cayuse, Walla Walla, Yankton Sioux, and Cocopah people. Sams previously served in the U.S. Navy as an intelligence specialist with experience in natural resource and conservation management. President Biden’s appointments are significant, considering Native Americans now hold two high offices in a federal agency once synonymous with assimilation.

Speaking of DOI,  President Biden restored over 1 million acres to Bear’s Ears National Monument in October, just four years after President Donald Trump drastically reduced the sacred, culturally rich site by a whopping 85 percent. Trump’s 2017 proclamation, praised by local landowners and oil companies and criticized by Indian country, met with lawsuits over whether a president possesses the power to reduce the size of a national monument. Bear’s Ears, which is sacred to the Hopi Tribe, the Navajo Nation, the Ute Indian Tribe of the Uintah and Ouray Reservation, the Ute Mountain Ute Tribe, and the Pueblo of Zuni, all of whom have ancestral ties to the region, remains a lightning rod for the national debate over presidential authority.

What kind of year-in-review would this be without a few major court decisions? Last term, the U.S. Supreme Court issued a favorable ruling for Indian country in a significant case about tribal jurisdiction. The conservative majority court unanimously held in United States v. Cooley, 593 U.S. ___ (2021) that tribal governments possess the power to temporarily stop, and if necessary, search non-Indians traveling on public rights-of-way through reservations for suspected violations of federal and/or state law. The holding confirmed what many tribal attorneys already believed and reinforced the idea that tribes require such power to protect their communities.

The outlook for Indian law in 2022 is less certain. In April, the Fifth Circuit Court of Appeal issued a 325- page ruling in Brackeen v. Haaland, 994 F.3d 249, holding certain parts of the federal Indian Child Welfare Act (ICWA) unconstitutional while keeping other parts intact. While the Fifth Circuit’s decision has no direct bearing in California, the showdown between pro-ICWA tribes and anti-ICWA states and non-Indians appears destined for the U.S. Supreme Court, which could issue a ruling with long-lasting and wide-ranging impacts on tribes. The Native American Rights Fund has already mobilized tribes to sign an amicus brief framing the history and purpose of ICWA for the justices. Stay tuned for more developments.

On a positive note, 2021 brought much new talent and experience to each of CILS’s four offices, enabling us to serve more individuals, tribes, and organizations in 2022.

Historical Perspective: CILS’ Protection of Tribal Court Sovereignty

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By Debra Avenmarg, CILS Eureka Office Staff Attorney

Over the years, CILS has played an important role in defending Tribal Court jurisdiction and sovereignty. One particular case that illustrates the importance of protecting Tribal Court orders from intrusion by state courts is the case of In re M.M. (2007) 154 Cal.App.4th 897.

In re M.M.: Background

In re M.M. involved a tribal child who was a dependent of the Humboldt County Superior Court in a child welfare case. After paternity testing revealed who the biological father was, the Karuk Tribe determined that the child was eligible for enrollment and intervened in the matter. The Karuk Tribe then filed a motion to transfer the case to Karuk Tribal Court. A contested hearing was held on the transfer request, along with various other issues. Ultimately, the Humboldt Superior Court granted the motion and transferred the case to Karuk Tribal Court. Before closing the case, the Humboldt Court set a hearing two weeks out to verify that the Karuk Tribal Court had accepted the case and that the transfer had been completed.  At this next hearing, it was verified that the file had been delivered to the Karuk Tribal Court, and the case was accepted by the Tribal Court within six days of ordering the transfer. The Humboldt Superior Court then closed its case.

Under California law, typically, parties have 60 days after the date of an order to file a “Notice of Appeal” to seek appellate court review of a court’s decision that they do not agree with. In the case of In re M.M., the attorney for the child did not agree with the transfer to Tribal Court and filed a “Notice of Appeal” 19 days after the order was made, which was within the usual time frame for appeal.

However, CILS, with the support of father’s counsel, argued that Notice of Appeal was not timely, and the appellate court had no authority to reconsider or undo the transfer of the case to the Karuk Tribal Court. CILS argued that once the transfer to Tribal Court was finalized and the child was made a dependent of the Tribal Court, the state courts, including the court of appeal, no longer had jurisdiction over the minor and no longer had authority to issue any decisions or orders over the minor. The time for any party to request appellate review of the decision to transfer the case and to request a stay of the transfer order, was before the Tribal Court accepted the case and the state court closed the case. Once the transfer was complete, only the Karuk Tribal Court could make decisions or orders regarding the child.

The Court of Appeal agreed with CILS and father’s counsel and concluded it had no power to compel the Tribal Court to return the case to the Humboldt County Superior Court and therefore could not provide the remedy requested by the minor’s counsel. The Court of Appeal agreed that the Humboldt County Superior Court lost jurisdiction over the dependency case when the case was transferred to Tribal Court. As a result, the Court of Appeal dismissed minor counsel’s appeal.

Outcomes and Lessons Learned

The case of In re M.M. cemented the independent sovereignty of Tribal Courts and that state courts have no authority to issue orders directing a Tribal Court to take affirmative actions.  In re M.M. provides legal authority that once a transfer from state court to Tribal Court is finalized, the decision to transfer is not appealable because the California Court of Appeal has no power over the Tribal Court to which the case has been transferred. Additionally, as a result of the In re M.M. case, California laws were amended so that courts must now advise the parties that an appeal of any order transferring a case to Tribal Court must be filed before the transfer to tribal jurisdiction is finalized, and failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction. The case of In re M.M. was a huge win for Tribal Court sovereignty, and it sent a strong message to all California courts to recognize and respect that sovereignty.

CILS continues to successfully advocate on behalf of Tribes to transfer ICWA matters into Tribal Courts and protect Tribal Court sovereignty. For more examples of ways CILS has protected Indian rights, please see “25 Great Reasons to Support CILS” https://www.calindian.org/25-great-reasons-to-support-cils/

Tribal Elections 101 – Consider the Following When Updating Tribal Election Laws and Regulations

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By Denise Bareilles, CILS Eureka Office Directing Attorney

I have had the pleasure of working closely with several Tribes in administering tribal elections.  It is an interesting area of tribal law that constantly presents new issues for tribal self-governance. Consider the information below when updating Tribal Election laws and regulations.

Does the Tribe’s Constitutional Framework Still Meet the Needs of Tribal Elections?

Most tribal Constitutions set forth the basic framework for tribal elections. The Constitution will generally have a specific section explaining the following:

  • The governing body (committee, board, or other administrative agency) responsible for administering elections
  • Qualifications for running as a candidate and respective nomination procedures
  • Voter registration process
  • When elections will be held
  • Process for enacting or amending the tribal election law
  • Process for challenging election results

The Constitution is a living document that should continuously serve its intended purpose. Does the election provisions in the Constitution continue to reflect the needs on how to administer tribal elections effectively? If not, work on updating the Constitution to avoid disputes that challenge election procedures as unconstitutional.

Here is an example of this issue presenting itself in tribal elections. The Tribe’s Constitution stated that all members of an Election Board must be elected by the voting membership. Through time, it became common practice (and well known in the community) that the Board made emergency appointments when necessary to fill empty Board seats. These emergency appointments were necessary to avoid cancelling elections due to the lack of a Board quorum to carry out election administrative actions. This emergency appointment procedure was not expressly provided for in the Constitution, and a lawsuit was eventually filed challenging the practice in the Tribal Court.  The emergency appointment procedure was ultimately held unconstitutional.

Who is Regulating the Tribal Elections?

It is important to understand the significance of an administrative election agency independent from the Tribal Council when holding elections for Tribal Council seats. Tribal governments predate the formation of the United States government. However, some tribal governments have organized under a tribal Constitution that provides that the Tribal Council substantially regulates tribal elections. Consider updating these types of Constitutions to ensure independent elections and as the tribe’s election system becomes more sophisticated. If not, this again invites disputes regarding the conflict of interest presented by the Tribal Council regulating its seats in tribal elections.

Is Tribal Election Law and Regulations Being Reviewed and Updated?

We cannot stress enough the importance of regularly reviewing and updating tribal election laws and regulations. Is nomination paperwork being submitted and reviewed correctly? Is the registrar of voters sufficiently being updated? Are petitions for ballot measures processed correctly? Are ballots being counted accurately? Are challenges to election results thoroughly addressed?

When reviewing ballot counting procedures, carefully evaluate the procedures to confirm that no one may tamper with final election results. There must be a paper trail for every single ballot. Ballots should be stored in secure locations. There should be a live video feed to the ballot tabulation room. Require tamper-evident seals, identification badges, and the presence of two or more staff members of opposite political affiliations. Tabulation equipment should be tested and certified before and after the election to confirm the machines are tabulating correctly. Provide a method for voters to track their ballots.

Is the Tribe Encouraging its Tribal Members to be a Member of its Administrative Election Agency?

Administering tribal elections is a complicated task that requires staff with substantial experience. Tribal elections are intimidating. Tribal officials and staff must understand tribal law, policies, and regulations and succinctly communicate the information to the tribal community. Tribal elections occur in smaller communities; thereby politics can be pervasive and run deep throughout. The tribal election agency’s actions are closely scrutinized and challenged sometimes on a regular basis. This may discourage tribal members from working for the election agency due to the constant pressure to respond quickly with correct information on all issues. To support the community, it is important to regularly do outreach to the community by holding regular training on administering tribal elections.

CILS has been assisting tribal governments in tribal self-governance for the last 50 years. Reach out to the CILS office closest to you if you have any questions or comments in administering tribal elections.

Respect for California Tribal Court Orders and Avenues for Tribes to Purchase Land

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By Kia Murdoch, CILS Sacramento Office Staff Attorney

CILS has been tracking bills in the California legislature that are relevant to our community. In July 2021, two bills passed that are exciting steps forwards for California tribes:

AB 627

Tribal Courts in California decide various cases, including family law cases such as dissolution of marriage, and issue orders regarding child support, spousal support, and the division of assets and benefits. Specifically, a Tribal Court may order the division of retirement benefits and other deferred compensation benefits. However, before the passage of AB 627, there was no federal or state law requiring a state court to recognize and enforce the Tribal Court on the division of these orders. Additionally, employers were not required to abide by a Tribal Court order regarding the division of retirement benefits unless a state court granted recognition and enforcement to the Tribal Court order. This bill created several problems for tribal members who chose to file their divorce in their Tribal Court: (1) the process to petition the state court to request recognition and enforcement of such a Tribal Court order is expensive and often takes months to resolve; and (2) state courts could decide not to recognize the Tribal Court order, forcing the parties to have to file a new divorce petition in state court to address the limited issue of dividing retirement or deferred compensation benefits.

AB 627, signed into law on July 9, 2021, established procedures for California courts to recognize Tribal Court family law orders involving the division of retirement and other compensation benefits. This means that the process to have a Tribal Court order regarding the division of benefits recognized in state court will be much simpler, more efficient, and less expensive.  This bill significantly reduces the burden on tribal members who need to enforce a Tribal Court order regarding the division of retirement benefits. It is also an important step in further validating the role of Tribal Courts in resolving family law issues for their members.

Now that AB 627 is signed into law, the Judicial Council of California will be creating state court forms that tribal parties can fill out and jointly file to obtain recognition of their Tribal Court family law order by a state court.

AB 1180

Before the passage of AB 1180, any local agency able to acquire and hold land (such as cities, counties, housing authorities, etc.) was able to transfer anything deemed “exempt surplus land” to another local, state, or federal agency. AB 1180 added federally recognized Indian tribes to the definition of agencies who may purchase “exempt surplus land.”

This bill is a major step for federally recognized California tribes, providing a meaningful avenue for acquiring lost ancestral territory. Local agencies must take inventory once a year of any land it holds in surplus. They are encouraged by law to dispose of surplus land by making it available for public entities to purchase through specific procedures outlined in the Surplus Land Act. However, local agencies can also designate land as “Exempt Surplus Land,” which can be bought by a small list of local, state, or federal agencies without going through the purchasing procedures under the Surplus Land Act.

Adding federally recognized tribes to the list of agencies who may purchase “Exempt Surplus Land,” AB 1180 has made it significantly easier for Tribes to buy land from local agencies. Thanks to the efforts of Tule River Tribe, the primary sponsor, and source for AB 1180, the bill was signed into law on July 9, 2021.

Other Bills We Are Watching

The following bills are still in the Legislature, but if passed, will affect California Tribes:

  • AB 516: Proposes excused absences for students to attend cultural ceremonies or events.
  • AB 798: Adds federally recognized Indian tribes to the list of public agencies that own and operate ambulances, allowing tribes to certify and license their ambulances and ambulance drivers. Under this law, tribal ambulances and drivers will no longer be subject to inspection and approval by California Highway Patrol or treated as privately-owned ambulances.
  • AB 873: Eliminates the tribe’s share of costs related to agreements between CDSS & tribal child welfare services, making agreements that include access to federal funding (such as Title IV-E) more accessible to tribes.
  • AB 945: Proposes creating a Task Force to study how to comprehensively implement all aspects of existing law related to wearing traditional tribal regalia or recognized objects of religious or cultural significance as adornment at school graduation ceremonies.
  • SB 712: Proposes to prohibit local governments from adopting or enforcing a resolution or ordinance that would prohibit the local government from conducting a fair evaluation of a fee-to-trust application by a federally recognized tribe based on the merits of the application.

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.