Frequently Asked Questions
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:
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.