Lessons Learned from California ICWA Cases in the Last Year

 

Since the enactment of AB 3176 in 2019, California case law has begun to define when there is “reason to believe” a child is an Indian child (which comes with the duty of further inquiry of Indian status by the county agency), and “reason to know” (which comes with the requirement of providing formal notice to tribes). AB 3176 was a tribally sponsored bill which sought to incorporate 2016 federal ICWA regulations from the Bureau of Indians Affairs into California law. As recent California cases illustrate, understanding when further inquiry should occur and when formal notice to tribes is required should be of utmost concern to courts, county agencies, and tribes. Failure to provide appropriate inquiry and or notice may result in unnecessary delays and infringes on the rights of tribes to be involved in cases involving their children.

Click here for Current Case Summaries

 

Concerns for the Future of ICWA Inquiry and Noticing

There is debate as to whether the changes to California ICWA laws had any positive effects. While some counties are providing less formal notice to tribes and more informal information sharing, other counties are not. The variation between counties highlights a broader concern of oversight. Previous changes to California ICWA law intended to provide greater protections for tribes and Indian children, but inconsistent application of the law poses a greater negative consequence – fewer children being connected to their tribes.

It is troubling to see in recent case law that inquiring into Indian status and providing notice to tribes may be considered moot when a child is returned home in a family maintenance case because it is believed the only benefit involving a tribe could offer is to potential invalidation of a foster care order. Invalidation of a foster care order could have a significant effect on the case if it changes how the timeline for services is calculated. Additionally, tribal involvement comes with significant benefits- resources, culturally appropriate services, information about the family, and active efforts to prevent the need for any future removal. More informal communications between county agencies and tribes, less formal notice, and less verification of contacts may mean more cases fall through the cracks. Less verification of contact between county agencies and tribes makes it difficult to enforce and monitor “further inquiry” requirements and ensure the agency is reaching out in a meaningful manner to the correct person at the tribe and providing adequate information to determine membership or eligibility.

California courts, in interpreting new California ICWA laws, have lessened “further inquiry” requirements. These judicial interpretations are unfortunate because they overlook important reasons parents and families may not have information on their Indian status. It is of utmost importance for courts and county agencies to understand how historical federal and state policies geared at eradicating tribes and Indian individuals resulted in many losing their connection to their tribes. Some reasons a parent or family may lack of knowledge of their Indian status may be due to historical trauma, including genocide, displacement, forced relocations of tribes, a family’s involvement in the foster care system due to being Indian, adoption within the family, a family’s involvement with boarding schools, issues with racism, the stigma associated with being a tribal member or associating with a reservation. Thus, when county agencies vary in their application of ICWA inquiry and when an agency fails to conduct appropriate inquiry, the families who have been disconnected from their tribe and lack knowledge or resources to piece together their tribal connection are failed. Ultimately, the shift in case law reinforces the historical legacy of disconnecting Indian individuals from their tribe.

 

FCC’s Rural Tribal Priority Application Window for Access to 2.5 GHz Spectrum

By Michael Godbe, CILS Bishop office Registered Legal Aid Attorney

 

7/31/20 UPDATE

Deadline to apply extended 30 days to 3pm PST on September 2, 2020.

Follow these links to read the FCC’s News Release and Order.

 

Apply before the August 3rd Deadline!

The Federal Communications Commission (FCC) is currently accepting applications from federally recognized rural tribes for licenses to control unassigned airwave spectrum over their tribal lands.

Rural tribes that apply before the 3:00 p.m.(PSD) August 3, 2020 deadline will receive spectrum licenses for free before the remaining spectrum is opened up to large corporations for sale at auction.

This is a one-of-a-kind opportunity to promote tribal sovereignty and economic development for rural tribes. This has never happened before and should not be missed.

Find out more information below and act now!

Here is what rural tribes should know.

 

What?

The Federal Communication Commission (FCC) – the federal body that controls the licensing of the public airwaves (e.g. radio licenses) – has created a Rural Tribal Priority Window for federally-recognized tribes to apply for licenses to control bands of 2.5 GHz spectrum over tribal lands. This spectrum band is high enough for use with the deployment of 5G wireless technology – widely anticipated to be the future of digital communication and interconnection, e.g. – cell phones, ‘internet of things’, driverless cars, etc.

 

Who?

Any federally recognized tribe located in a “rural” area may apply for during the Rural Tribal Priority Window. Consortia of federally recognized tribes, or other entities controlled and majority-owned by such tribes or consortiums, are also eligible to apply.

“Rural” means areas that do not include an urbanized area or urban cluster with a population equal to or greater than 50,000. The FCC’s list of rural tribal shapefiles excludes urban areas (i.e., if a tribe’s land is included in the list shapefiles, it qualifies as “rural”).

 

When?

The Rural Tribal Priority Window opened Monday, February 3, 2020, and closes on Monday, August 3, 2020 at 6PM EDT / 3pm PSD. This is the deadline for rural tribes to apply for spectrum licenses.

Due to delays caused by the coronavirus (COVID-19), the Congressional Native American Caucus and the National Congregation of American Indians have each sent letters to the FCC requesting the deadline be extended, however, the deadline is not expected to be extended.

Tribes that want to apply during the window should expect and plan to submit applications before the August 3, 2020 deadline.

 

What Are the Benefits of Accessing this Spectrum?

Holding a spectrum license can be both a resource and an asset, and can be used to support tribal sovereignty and economic development. When rural tribes control their own spectrum, they are empowered to close the digital divide and bring high-speed wireless technology to their lands instead of waiting for a telecom company to decide to bring it to them.

Corporations spend enormous sums of money in FCC auctions to obtain spectrum. Tribes now have a very short window to obtain spectrum licenses over their rural tribal lands at no cost. By obtaining a spectrum license, tribes may be able to:

  • Establish or enhance a broadband network for their rural lands
  • Leverage the license to incentivize telecom companies to establish high-quality service on otherwise neglected tribal lands
  • Leverage the value of the license to obtain credit (i.e., use the license as collateral on a bank loan)
  • Lease their spectrum to telecom companies for the provision of services and economic development
  • Trade access to their spectrum for other assets or services
  • Sell their spectrum

By controlling spectrum, tribes can ensure that various tribal services, such as tribal police departments and medical services, receive access to high-speed internet connectivity.

As the frequency bands used to communicate change with technological development, control over more useful and desired bands of spectrum will become an increasingly important aspect of tribal sovereignty and self-determination. If tribes control a useful band of spectrum in the airspace above their lands, they can ensure their members receive high-speed internet and 5G mobile coverage, and they can prevent third parties from charging them to access this band of spectrum.

Spectrum may also become an important tool for economic development, as it may be able to be leveraged for the development of other projects as necessary (e.g. by leasing spectrum access to digital services providers seeking to provide access to consumers on reservation land, or by securing bank loans for economic development).

 

What is required of tribes once they receive a Spectrum License?

Successful tribal applicants to the Rural Tribal Priority Window that receive a license must put their spectrum to use. While the following may sound complicated, it is actually relatively easy for even small rural tribes to meet the requirements. What’s important right now is that rural tribes apply before August 3rd, and then they can figure out these details later.

Here are the requirements for license holders:

Tribes can meet the licensee requirements in either of two ways: tribal licensees can meet the Coverage requirement goals or they can meet the Point-to-Point requirement goals. Tribes can also pursue both, but they do not need to in order to keep their license.

Both requirement tracks have the first deadline after two years and a final deadline after five years. If a tribe fails to meet the first deadline (2 years), the final deadline shortened by one year, from five to four years.

 

Coverage requirement goals:

After 2 years . . . After 5 years . . .
Mobile or Point-to-multipoint Service Coverage must be available to 50% of the population in your license area (tribal land) (50% adoption is not required) Coverage must be available to 80% of the population in your license area (tribal land) (80% adoption is not required)

 

Point-to-point requirement goals:

After 2 years . . . After 5 years . . .
Fixed Point-to-Point Service 1 point-to-point link per 50,000 people 1 point-to-point link per 25,000 people

 

Timeline / Deadlines:

After 2 years . . . After 5 years . . .
Consequence if neither goal is met Final deadline speeds up: you will be required to meet the ‘after 5 years’ requirements within 4 years Tribe will lose the spectrum license

 

Coverage Requirement Goals

The Coverage (aka point-to-multipoint or mobile) requirement goals are really about making cellular or internet service available to the population living on the tribe’s trust land.

Meeting the Coverage goals will likely be more difficult than meeting the Point-to-Point goals, however, most tribes will be able to meet this goal by installing (or contracting with a telecom company to install and operate) a single access point (e.g.a. cell tower).

Don’t worry, these coverage requirement goals do not mean that 50% / 80% of the population must have their own wired connections to their homes, or that 50% / 80% of the population must be using the newest, most expensive, 5G-compatible cell phone. Access must be available to the population.

Interested tribes can seek assistance from legal counsel like CILS if they have specific questions, but tribes should not let the coverage requirement goals discourage them from applying. 

Point-to-Point Link Requirement Goals

Alternatively, or in addition to, a tribal licensee may meet the Point-to-Point Link requirement goal.  This primarily relates to sharing a closed network between two or more physically separate buildings.

To meet this goal, licensees must build one “point-to-point link” by the first deadline (2 years from license grant) and have at least one “point-to-point link” per 25,000 people within the service area by the second deadline (5, or 4 years from license grant). All California tribal licensees will meet the final deadline when they meet the first deadline because no California tribes have a reservation population above 25,000 people.

A “point-to-point link” simply means creating a wireless connection between two or more points, using the 2.5 GHz spectrum.

For example, if a rural tribe has two administrative buildings separated by 100 feet, the tribe could meet the single ‘point-to-point’ link requirement by bringing the internet via fiber optic cable into building A, setting up a transmitter (point 1, in building A) and receiver (point 2, in building B), and transmitting the internet wirelessly to the second building. While market prices are always subject to change, setting up a simple ‘point-to-point’ link like the one described above should cost a tribe roughly between $2,500 and $3,500. Of course, tribal licensees can do much more than this with their spectrum, but the point is that a tribe can hold on to its spectrum license with an investment of a few thousand dollars.

 

What Happens if a tribal licensee fails to meet those goals?

Ultimately, a tribal licensee that fails to meet either of the goals by the final deadline will lose the Spectrum license. If a tribe does nothing at all after receiving a spectrum license, it will lose the license in 4 years. There is no other consequence besides losing the license. If a tribe loses its license, the spectrum will revert to the overlay license holder for the relevant county, or the FCC may sell the lost license at auction.

 

How soon can a tribal licensee sell or transfer their Spectrum License?

Successful tribal licensees may not sell or transfer their licenses until after the above final buildout requirements are met (service coverage available to 80% of the population by the final deadline or one point-to-point link per every 25,000 people by the final deadline). However, licensees may lease their spectrum sooner, and the service provided by a lessee (i.e. a telecom company) will be counted towards the buildout requirement.

 

Is Spectrum available to every Federally Recognized Tribe?

Not necessarily. In order to apply for a license in the Tribal Priority Window, there must be some spectrum on the channel and over the rural tribal land that is not currently assigned/licensed to another licensee.

There are three (3) channels available to tribes in the 2.5GHz spectrum, and tribes can apply for licenses in one or all three channels – as long as there is not currently assigned spectrum in the channel that covers the entirety of the tribe’s land.

To determine if spectrum is available for your tribe, the FCC has created a rural tribal mapping tool. The FCC’s mapping tool can be used by tribal entities to help assess whether and to what extent there is unassigned 2.5 GHz spectrum in each of three channels is available over their eligible tribal lands. Tribes should check each channel over their lands in the mapping tool and verify that all channels are not all red. For some tribes in Southern California, there is no available unassigned spectrum in any of the 3 channels.

For example, the Hoopa Tribe in Northern California is eligible to apply for spectrum in all three channels because the entirety of the spectrum over its trust land is not already assigned:

 

The FCC’s mapping tool can also be used to determine where tribal applications have been submitted.

Spectrum licenses are only available to federally recognized tribes.

 

What happens if your tribe does not apply for available spectrum?

The Tribal Priority Window allows tribes to apply for licenses in three specific frequencies/channels all within the 2.5GHz band of spectrum.  The FCC has already auctioned off other high-frequency spectrum bands and has additional actions for the mid-band range planned for 2020.

It is likely that the FCC will auction off 2.5GHz spectrum bands over tribal lands which tribes decline to apply for during the Tribal Priority Window to private bidders. If this happens, tribes may end up with no choice but to pay a third party to access this band of spectrum over their lands.

 

Which tribes have already applied for spectrum?

You can view a list of tribal applicants that have applied for spectrum within the Tribal Priority Window here.

 

How do tribes apply for Spectrum?

All applications must be completed online using the FCC’s Universal Licensing System (ULS); there is no other way to submit an application during the Rural Tribal Priority Window.

First, tribal applicants need an FCC Registration Number (FRN) to apply. Instructions for applying an FRN can be found here (click on “Register for a New FRN”), and the application itself can be found here. FCC staff are also available to assist applicants throughout the process, and questions should be directed to RuralTribalWindow@fcc.gov.

Once tribes have an FRN, they can proceed with the application.

Second, tribal applicants will submit a current FCC Form 602 (Ownership Disclosure Application) online. The online version of this form is a streamlined version of what is available on the FCC’s website.

Third, tribal applicants must submit a current FCC Form 601 (Application for Radio Service Authorization). Tribal applicants will use this form to demonstrate that they have a local presence on the trust land (i.e. that the tribe is providing service on/to the land and have tribal members living there), and select available channels. The online version of this form is a streamlined version of what is available on the FCC’s website.

Fourth, tribal applicants will submit a shapefile file that shows the geographic outline of their tribal lands (find your rural tribe’s shapefile on the FCC website here).

Tribes interested in applying for spectrum should being this process as soon as possible.

 

How CILS Can Help:

CILS is here for you and your tribe and can assist your tribe to completely and correctly submit an application to the FCC. We can also answer questions about the application and the potential benefits to your tribe of licensing spectrum. Don’t wait until the last minute to reach out to us!

 

Additional Resources:

The Myth of the Monthly Check for Native Americans

By Mark Vezzola, CILS Escondido office Directing Attorney

About ten years ago, I attended a social event for young professionals at an upscale hotel in downtown San Diego (back then, I was young). As almost everyone was a stranger to me, most conversations began with introductions and inquiries about our jobs. One man, upon learning that I represented tribes, shook his head and said something like, “sorry, but I don’t think we should give reparations to Indians.” I wondered who he was talking to as no one had mentioned reparations. But his belief, while mistaken, is common. Many people think Native Americans get a monthly government check as some form of apology.

The truth is that Native Americans do not receive monthly checks from the federal government, although many think they should. The United States does not pay reparations to indigenous people as a way of saying “I/m sorry” for centuries of genocide, land theft, and disease outbreaks. There are, however, several reasons why a Native American might receive a check in the mail or automatic deposit. Some specific federal laws authorized one-time payments to compensate Native people for taking land, such as the 1971 Alaskan Native Claims Settlement Act passed by congress to settle all land claims brought against the United States by Alaskan Natives.

Some tribes issue quarterly or monthly per capita payments to their members from the profits of tribally owned enterprises such as casinos. The amount and frequency of these payments depend on several factors, including the success of the business, the overall fiscal health of the tribe, and the tribal government’s decision on whether and how to distribute wealth. Not all tribes have casinos, and some that do still struggle financially. One southern California tribe filed for bankruptcy in 2012 after its casino folded. Non-gaming tribes within the state receive revenue sharing trust payments from gaming tribes and sometimes divide these funds among individual tribal members. Again, the payments do not come from the United States.

Other sources of financial payments include various government benefit programs which have eligibility criteria; it is not automatic, nor is it limited to Native Americans. TANF, or Temporary Assistance for Needy Families, for example, is a federal program designed to help low income families attain self-sufficiency. Individuals with children can apply for TANF funds to supplement their income. Federally recognized tribes can apply to administer and operate their own TANF programs to accomplish one of the program’s purposes for eligible individuals and families. The funds go to families, however, and are barely enough to pay for basic living expenses, let alone support a lavish lifestyle.

The myth of the monthly check could also have its roots in lease payments made to Indian landowners who receive royalties from mining and grazing on allotment land held in trust for them by the United States. This revenue, however, is not a gift, but part of the federal government’s trust responsibility to manage land allotted to Native Americans in the late nineteenth or early twentieth centuries (the allotment process ended in 1934 with the passage of the Indian Reorganization Act). The amount of lease payments depends on the income generated by the land, the owner’s proportionate share, and the terms of the lease.

The bottom line is Native Americans do not get automatic monthly or quarterly checks from the United States government. Maybe they should, and maybe one day they will, but at this time it is merely a myth.

For more information about funding for tribes, government benefits, or general questions about federal Indian law, contact your local CILS office.

ICWA Implementation Shortfalls

By Jedd Parr, CILS Sacramento Office Directing Attorney

In 1978, the federal government passed the Indian Child Welfare Act in response to wildly disproportionate numbers of Native American children being removed from their parents and placed outside of their families and tribes.  Many grew into adulthood with no knowledge of their heritage.  Before the ICWA, little regard was given to the long-term impacts on those children and their tribal communities.  The ICWA was intended to solve the problem by creating minimum standards for state agencies and courts, seeking to reunify Indian children with their parents if possible, and if not, then to encourage connections between the children and their extended families and tribes.

Forty-two years later, even in a state like California, where several significant pieces of legislation have been passed to implement the law better, numerous problems remain.  Too often, the ICWA is poorly understood by some county social service agencies, attorneys representing children in dependency cases, and even the courts themselves.  Where the law is better understood, it may still be seen as an unwelcome impediment to the usual course of business – additional legal requirements, additional forms to be filed, tribes to be contacted or to join the cases as parties, extended family members and tribal members to be searched for and evaluated as possible placements.  In a system where many counties already feel overloaded, it is not surprising that the ICWA is at times given short shrift.

The heart of the problem is that the purpose of the law is typically not wholly realized or believed.  The importance of the connection between Native Americans and their tribes is not something easily understood by non-Indians.  As a result, tribes are commonly treated as less than the sovereign governments concerned for their people’s welfare that they are.

Tribes may not be notified at all of a case involving one of their children.  They may be denied information about the case due to outdated understandings of confidentiality.  They may send a representative to a far-off hearing only to find that the other parties have already agreed to ask for a continuance.  Tribal representatives may receive reports of a county’s recommendations for a child on the day of the hearing at which the court is to decide on those recommendations, with no opportunity to evaluate beforehand with the decision-makers of the tribe.  They may be ignored when building reunification plans for the parents, or in identifying extended family and tribal member placements preferred under federal and state law.  Tribes may be told that arranging visitation with out-of-the-area family and tribal members, in case reunification fails and placement with a non-parent is necessary, is too difficult or expensive.  They may later be told, if reunification does not occur, that placement with a family or tribal member is not in the child’s best interests because he or she doesn’t know the family or tribal member well enough, and have instead bonded to the foster family in the local area.

What’s the solution, if these problems persist so many years after the ICWA became law?  Information can help.  In 2015 the California ICWA Compliance Task Force convened at the invitation of the California Attorney General.  Chaired by seven tribal leaders and composed of other tribal representatives and advocates, in 2017 it delivered a detailed report to the Attorney General, which documented ICWA issues throughout the state. It made 20 specific recommendations to help improve implementation.  Some of those recommendations have seen progress – for example, the formation of the Office of Tribal Affairs within the California Department of Social Services, or California’s collection of data on ICWA compliance for the federal Adoption and Foster Care Analysis and Reporting System.  But others have seen little or no progress.

In the opinion of many tribes, ICWA advocates and practitioners, tribes need to be represented by counsel from the outset in more dependency cases.  All other parties – the county, the parents, the children – are provided with attorneys.  Doing the same for tribes would help ensure that the ICWA is followed and that the spirit and purpose of the law are finally met.

TRIBAL ALERT: CARES Act Funding – Second Distribution URGENT Action

To All Tribal Leaders:

The United States Treasury Department (Treasury) expects to take additional time to distribute the remaining $3.2 billion in COVID-19 related funding under the CARES Act (aka Coronavirus Relief Fund). This delay is due to missing submissions from 57 tribes and incomplete or incorrect information submitted by 336 tribes regarding their tribal employment and expenditures, which is the information needed for Treasury to make the final CARES Act distribution.

If you are one of these tribes, Treasury would have sent an email to you with either of the following email addresses: CARES-STATES@treasury.gov or tribal.consult@treasury.gov. If you have received an email from Treasury, you need to review and correct any errors or provide missing documentation by 11:59 pm Alaska Daylight Time on Saturday, June 6. If you miss this deadline, you will not receive funding in this second round of distribution. Similarly, if you did not submit any documents, you will not receive funding.

CILS urges tribes to respond immediately to Treasury’s communication before the Saturday, June 6, 2020 deadline. 

CILS is here to help. If you need assistance with your submission please contact Dorothy Alther at dalther@calindian.org or Mica Llerandi at mllerandi@calindian.org. Thank you.