November 2022 California Native Voter Guide

Check out CILS’ updated November 2022 California Native Voter Guide!

Click image to Open Voter Guide

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.

California Stimulus Check

By 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.

AB 1869 – Eliminating Criminal Adminstrative Fees

This bill repeals the authority to collect many of these fees, among others. The bill makes the unpaid balance of these court-imposed costs unenforceable and uncollectible and requires any portion of a judgment imposing those costs to be vacated. If you qualify or have questions contact any CILS office nearest to you.

AB 1869 Flyer

CILS Brackeen News Flash

On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

However, per our preliminary review, a majority of the Fifth Circuit found three portions of the ICWA unconstitutional under the anticommandeering doctrine:

  • 25 USC 1912(d) – active efforts requirement as applied to state agencies;
  • 25 USC 1912(e) and (f) – testimony of a qualified expert witness; and,
  • 25 USC 1915(e) – placement record-keeping requirements.

The anticommandeering doctrine, which springs from the Tenth Amendment, says that the federal government cannot make states adopt federal laws as their own nor enforce those laws.  It’s important to remember that in states like California, which have codified the ICWA into state law; the anticommandeering doctrine cannot be used to invalidate state law because it only addresses the compulsory adoption and enforcement of federal laws.

Flowing from the anticommandeering holdings, the Fifth Circuit also held certain related portions of the BIA’s 2016 ICWA regulations to be invalid.  California has already incorporated those regulations into state law (as of 2019 via AB 3176), so ICWA cases here will be unaffected for the same reasons as above.

There is a strong likelihood that one or both parties will ask for a review by the U.S. Supreme Court.  The Supreme Court accepts very few of the many petitions for review it receives, although the chances of it granting certiorari do increase with the creation of a split amongst the federal appellate courts, as the Brackeen decision does.

It is worth noting the lead portion of the decision calls out the fact that the states challenging the ICWA’s constitutionality (Texas, Louisiana, Indiana, and Ohio with its amicus brief) are home to only a tiny fraction of the nation’s Indian tribes and citizens, while the 26 states who came out in favor of the law, including California, are home to a vast majority of both.

Again, CILS will have further analysis to offer as we work our way through this lengthy decision.  We will continue to monitor the case if a review is sought and will continue to be watchful for attempts to push anti-ICWA arguments in California.

Stay safe!