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:

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.

Mythical Indian Benefits

By Denise H. Bareilles, CILS Eureka office Acting Directing Attorney

For the last ten years, I have enjoyed working with tribal communities and assisting Native Americans and tribal governments in advancing Indian rights, fostering Indian self-determination, and facilitating tribal nation building. It has been interesting and surprising when I hear common stereotypes repeated about “Indians” and “Why do they receive so many benefits?” There is a lack of understanding that tribal governments possess an inherent sovereign authority to govern their land and people similar to other government units.

Myth: Indians Have Casinos and Receive a lot of Per Capita Payments

The most common mythical statement is that Indians own casinos and have a lot of money through tribal per capita payments. Wouldn’t that be great if this was true? But no, it is not. Some tribal governments distribute discretionary per capita payments to their tribal citizens due to operating successful enterprises such as casinos or other business ventures, or through effective management of natural resources on tribal lands. However, there are a lot of tribal governments that have very minimal economic development. Non-gaming tribal governments may receive funds from gaming tribes through the Indian Gaming Revenue Sharing Trust Fund, but those monies may or may not be distributed to its enrolled tribal members.

Myth: Indians Don’t Pay Taxes

Another common myth is that Native Americans are not subject to taxes. This is not true. This myth may stem from the fact that Indians were historically not subject to state or ordinary federal taxes because they are citizens of their own politically organized government. Native Americans are subject to federal income taxes. On the other hand, the income or revenue of tribal governments is exempt from federal taxation.[1] This tax immunity is consistent with the unique sovereign status of tribes, given that the federal income tax likewise does not apply to state and local governments. This exemption may be extended to tribal revenue generated by tribally established entities depending on if the entity is organized under federal, tribal, or state law.

States presumptively lack jurisdiction to tax Tribes and Indians living and working on their reservation but may do so if a federal statute confers that power. For example, courts have found that Tribes and Indians are immune from: sales and use taxes for goods purchased or delivered and used on the reservation, registration fees for vehicles used on the reservation, net income taxes if the member lives and is employed on their reservation, and real property taxes on their Indian (restricted) lands.

Tribal governments may also levy taxes on individuals within their reservation – some do, and others do not.

Myth: Indians “Double Dip” From State and Tribal Government Public Benefits

Another surprising myth is the assumption that Indians “double dip” when it comes to applying for public benefits. Native Americans are dual citizens; they are citizens of the State of California and their tribal government. Native American families may elect to receive aid from the California Work Opportunity and Responsibility to Kids (CalWORKS) program by applying in their county of residence or applying for Tribal Temporary Assistance for Needy Families (TANF) with the appropriate Tribal TANF provider. The government agencies coordinate service delivery to avoid duplication of services. Native families may choose one program over the other based on culturally sensitive service delivery, type of services provided, and/or proximity of services to the reservation.

Please contact the California Indian Legal Services office closest to you if you have any further questions regarding benefits for Tribes and Indians.

[1] Rev. Rul. 67-284, 1967-2 C.B. 55.

When Does the Indian Child Welfare Act (ICWA) Apply?

By Kia Murdoch, CILS Sacramento office Staff Attorney

ICWA provides protections for Indian children in State Court “Child Custody Proceedings.”

The ICWA is a federal law that provides procedures to protect “the best interests of Indian children and promote the stability and security of Indian tribes and families” in certain child custody proceedings.[i] Protecting children’s connection to their culture, their Tribal community, and their Tribal membership interests are important not only for the individual children but for the future of their Tribes.

The ICWA broadly defines child custody proceedings, but ICWA protections are commonly applied in state dependency cases where a state welfare agency has removed or may remove the child from their parent’s home, whether temporarily, permanently, voluntarily, or involuntarily. ICWA specifically applies to dependency proceedings where an “Indian child” is involved or where the welfare agency has reason to know the child involved may be an “Indian child.”

The ICWA also applies in guardianship and private adoption cases involving Indian children.  The ICWA does not apply to divorce or custody cases between the Indian child’s parents.

I have Indian ancestry; does ICWA apply to my family?

Who is an “Indian child”? The ICWA defines an “Indian child” as any “unmarried person under the age of 18 who either (1) is a member of an Indian tribe, or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.[ii]

It is important to note that an “Indian tribe” for ICWA purposes refers to a federally recognized Tribe.[iii]  Not all Indian tribes are federally recognized, and unfortunately, merely having Native American or American Indian ancestry is not enough to trigger ICWA protections. The federally recognized Indian tribes are listed in the Federal Register.

However, California law gives the court discretion to allow non-federally recognized tribes to participate in child custody proceedings if the child would be an “Indian child” under ICWA, except for the Tribe’s lack of federal recognition.[iv]  Unlike child custody proceedings where a federally-recognized Tribe must be notified of the proceedings when there is reason to believe the child involved might be a Tribal member, an unrecognized California tribe is not required to be notified; instead they must request the court for permission to participate in the child custody proceeding.[v]

ICWA applies even when the court is not sure if the child is an “Indian child.” So long as the court has reason to know the child involved in the child custody proceeding may be an Indian child, the court must proceed under that assumption that the ICWA applies until the Tribe informs the court that the child is neither a member nor eligible for membership.

What counts as “membership” in a Tribe?

Under ICWA, the Tribe has the sole authority to determine what membership means.[vi] For example, membership does not necessarily mean formal enrollment.[vii] Further, the Court cannot question how the Tribe decides to define membership. If the Tribe decides the child involved in a child custody proceeding is not a member, ICWA still applies if the child is eligible for membership and is the biological child of a member of the Tribe.

If ICWA applies to my family, what should I do?

In dependency cases, the child welfare agency must notify the Tribe as soon as they have reason to know the child involved may be an Indian child. If you believe the ICWA may apply to your family, inform the social worker which Tribe(s) the child may be a member of, so the social worker can notify the Tribe(s) to determine membership status.

[i] 25 U.S.C.A. § 1902.

[ii] 25 U.S.C.A. § 1903(4).

[iii] 25 U.S.C.A. § 1903(8).

[iv] Cal. Fam. Code § 185 (See also Welf. & Inst. Code § 306.6).

[v] Ibid.

[vi] United States v. Bruce, 394 F.3d 1215, 1225 (2005) (“[O]ne of an Indian tribe’s most basic powers is the authority to determine its own membership”).

[vii] In re Jack C., 192 Cal.App.4th 967 (2011).