California Wildfire Information
The following resources have been updated and are available for tribal communities impacted by the wildfires.
Inter Tribal Long Term Recovery Foundation link
Indian Wills – Planning for the Inevitable
/in For Native Individuals, Indian Wills, Self-Help, Taxes /by webadminBy Mike Godbe, CILS Bishop office Staff Attorney
It is often said, “nothing can be said to be certain, except death and taxes.” Because taxation in Indian Country is often uncertain (e.g., sales and use tax, property tax, etc.), this leaves death as the only certainty for Native Americans.
Death: the only certainty!
Well, now that I’ve got you feeling upbeat about how we’ll all be kicking the bucket someday, it’s a great time to remember that it’s never too early to start end-of-life planning!
For Native Americans who own an interest in an allotment or have money from their allotment in an Individual Indian Money (IIM) Accounts (referred to “trust assets”), there is a special set of probate rules for giving (“devising”) these assets by will.
Making a Valid Indian Will
While under state law a handwritten will with no witnesses, or a type-written will with two witnesses, may be valid, this state rule is not valid for leaving your trust assets to a relative or loved one. You must execute a will (“Indian Will”) that meets the requirements found in Title 25 of the Code of Federal Regulations, Subpart A (25 CFR §§15.1 – 15.12) to transfer trust assets.[1] Some of these requirements are that, in addition to having 2 disinterested witnesses, the testator and witnesses must all sign Affidavits with specific language in the presence of “an officer authorized to administer oaths,” such as a notary, and contain specific language.
CILS Attorneys and Advocates have many years of experience assisting clients in drafting valid Indian Wills for their trust assets.
A Valid Indian Will can also Satisfy California Law (Combined Will)
A valid Indian Will can meet the less-stringent requirements for a valid will under California law (i.e for transferring personal property and non-trust land). (see Probate Code § 6110-6113). This means that you don’t need two wills– one for your trust and one for your non-trust assets—- as long as the more stringent requirements for Indian Wills are met.
Wills are also an appropriate place to record any specific wishes you may have following your passing. For example, whether you would like to be buried or cremated, where your ashes should be spread, whether you want a traditional burial ceremony, if your body should be left undisturbed for a certain period of time, and anything that requires the consent of your next of kin such as an autopsy. These can be hard conversations for families to have and CILS Attorneys and Advocates can help you navigate these challenging considerations.
What Happens to my Trust Assets if I Die Without Making a Valid Will?
If you die without a will, your trust assets will pass according to the rules set out in the American Indian Probate Reform Act of 2004 (AIPRA).[2] AIPRA creates specific rules for succession (transferring) of trust assets, which differ depending on whether the individual who died intestate (without a will) owns greater or less than 5% interest in the allotment being probated.
Before AIPRA was enacted, if there was no will, Indian trust assets would be distributed by following state law. As a result, throughout the country there was wide variation in how trust assets would be distributed among the heirs of deceased allottees. This of course is the legacy of the Allotment period (1877-1934) that resulted in severe fractionation of Indian trust lands. It is not unusual for Indian allotments to have hundreds of living interest holders sharing the land as tenants in common, with each only owning a fraction of one percent. A primary goal of AIPRA was to reduce – or at least lessen – this fractionation.
The AIPRA does not apply if a Tribe has its own Probate Code that has been approved by the Bureau of Indian Affairs.
CILS Is Here to Help
If you have more questions or are ready to move forward and make an Indian Will, don’t hesitate to contact your local CILS office.
For additional resources, check out the Trust Assets and Probate section of CILS’ Self-Help resources, where you can find AIPRA resources and helpful guides.
[1] This section of the Code of Federal Regulations does not apply to members of the Osage Nation and the “Five Civilized Tribes” of Oklahoma.
[2] If your tribe has its own probate code that has been approved by the Secretary of the Interior, then the tribe’s probate code, not AIPRA, applies.
Frequently Asked Questions
/in FAQs, For Native Individuals, Self-Help /by webadminBy 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
/in FAQs, Self-Help /by webadminBy 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.
California Stimulus Check
/in Self-Help, Special Benefits, Taxes /by webadminBy Ryan Buuck, LMU Loyola Law School, J.D./M.B.A. Dual Degree Candidate
Last week, Governor Gavin Newsom announced a new economic recovery package that will include $12 billion of direct payments to residents of the State of California. These payments will be like the three stimulus checks sent by the federal government during the CoVID-19 Pandemic. Under this new California plan, many residents who earn up to $75,000 per year will qualify for a one-time check. California expects two out of every three residents to receive economic relief from the state this year.
Do I qualify?
To qualify, you must be a resident of the State of California, you must have already filed your 2020 taxes, and you must earn between $30,000 and $75,000 per year. If you are married and file your taxes jointly with your spouse, you must make less than $75,000 combined to qualify. If you earn less than $30,000 per year, you will not be able to get this check because you qualified for the Golden State Stimulus check that was announced in February, and you can still claim that payment up until October 15, 2021. The $75,000 threshold is measured by “California Adjusted Gross Income,” which means you could make more than $75,000 per year, but if you make less than $75,000 after deductions, you will still qualify for the check.
Unlike the federal stimulus checks, undocumented immigrants and their families and non-resident and resident aliens who use an Individual Taxpayer Identification Number (ITIN) are eligible for the California stimulus check.
How much will I get?
Each Californian that qualifies for the stimulus check will get $600. If you are married and file jointly, you and your spouse will get $600 total. If you are eligible and you have dependents, you will receive an extra $500. This additional amount will be the same no matter how many dependents you have. For example, if you have one child, you will get an extra $500, and if you have five children, you will also get an additional $500. If you received the Golden State Stimulus earlier this year and you have dependents, you will not be getting the $600 check, but you will qualify for the extra $500 for your dependent.
When will I get it?
Although the e state has announced this payment plan, our legislature still needs to approve it, which may take some time. If the Golden State Stimulus earlier this year is a good indicator, you should expect the state to move quickly on processing these payments. Once a taxpayer is deemed eligible, it takes between two and six weeks to receive the check. Taxpayers who set up direct deposit for their taxes will get theirs faster than those waiting on a check to come in the mail. You can set up a direct deposit at ftb.ca.gov.
How can the state afford this?
In 1979 Californians voted to create a limit on the amount of money the state is legally allowed to spend every year. We pay high taxes in California, and this cap, called the Gann Limit, ensures that our state government is responsible for our tax money. When the state reaches the Gann Limit, the rest of the funds must be returned – half goes to our public schools, and half goes straight back to the taxpayers. The only time this has happened before was 1989, and we got a 15% cut on our taxes. This year, there was a ton of money left over, and it is coming back to many of our bank accounts.
