HAPPY PRIDE FROM CALIFORNIA INDIAN LEGAL SERVICES!

By Mark Vezzola, CILS Escondido office Directing Attorney

CILS wishes everyone a happy and safe Pride month! The month-long collection of events, flag-waving, and parade floats is meant to celebrate and honor who we are and show support for our clients, friends, staff, and allies who do not identify with traditional ideas of gender or sexuality.

What does CILS have to do with Pride? Our federal Indian and Tribal law work builds on values promoted by the LGBTQ2+ community – fairness, equality, and inclusion. Interestingly enough, the number “2” in LGBTQ2+ recognizes people who identify as “Two-Spirit,” a pan-Indian idea that acknowledges individuals who do not identify as heterosexual or cisgender but rather a third gender or gender variant. The term “Two-Spirit” came out of a 1990 Native American/First Nations gay and lesbian conference in Winnipeg, Canada, as more precise and culturally informed than “gay” or “transgender” because such individuals were not only embraced by their communities but often revered for possessing qualities connected to both sexes.  It was non-binary people of color who helped launch the modern gay rights movement with the Stonewall Riots of 1969, thus giving CILS and Native communities another reason to celebrate Pride.

Long before the U.S. Supreme Court upheld marriage equality on equal protection grounds in Obergefell v. Hodges, 576 U.S. 644 (2015), Native American communities not only accepted but respected and even revered people who did not conform to conventional gender roles or sexual identities. The Lakota people, for example, recognized winktes, males who adopted a female identity, as powerful and often relied on them to name infants and serve in other ceremonial roles. More recently, in the wake of the cultural and political debate that unfolded over marriage equality in the mid-2000s, many Tribal nations have shown their commitment to inclusion and equality while flexing their sovereign powers to amend and develop laws that allow for same-sex marriage.  Dozens of Tribal nations, including Suquamish (WA), Little Traverse Bay Band (MI), Iipay Nation of Santa Ysabel (CA), Pokagon Potawatomi (MI), Leech Lake (MN), Puyallup (WA), Coquille (OR), Shoshone Arapaho (WY), Keweenaw Bay Indian Community (MI), Tlingit & Haida Indian Tribes (AK), Mashantucket Pequot Tribal Nation (CT), and the Oneida Nation of Wisconsin, recognized and permitted same-sex marriage before it was legal throughout the United States.

CILS continues to advocate for equality and sovereignty on behalf of Tribal  Nations, Native American organizations, and individuals. CILS projects and work that address LGBTQ2+ issues include drafting and revising family and employment codes to use gender-neutral pronouns and acknowledging the rights of same-sex couples and non-binary individuals. Helping clients who identify as LGBTQ2+ draft prepare thorough estate plans that protect their same-sex spouses, partners, and other family members, and more. Not long ago, a CILS staff member serving as a Tribal court judge officiated at the same-sex couple’s wedding, the first we know of under the laws of that Tribe.

Resources and Information

To read more about Two-Spirit identity and Two Spirit-focused resources, check out the Indian Health Service’s website:  https://www.ihs.gov/lgbt/health/twospirit/

For a discussion of same-sex marriage in Indian country, we recommend Professor Ann Tweedy’s 2015 Columbia University’s Human Rights Law Review article: https://turtletalk.blog/2015/06/02/tribes-and-same-sex-marriage-in-columbia-human-rights-law-review/

For statistics about the economic opportunities, family acceptance, and health risks facing Two-Spirit people, check out “Spotlight on Two-Spirit Communities” by NCAI: https://www.ncai.org/policy-research-center/research-data/prc-publications/A_Spotlight_on_Native_LGBT.pdf

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.

Sacramento CILS Office Highlights

By Jedd Parr, CILS Sacramento office Directing Attorney

Here are a few examples of the good work from our Sacramento office:

We gave an ICWA training on April 28, 2021, to Butte, Yuba, and Tehama Counties, and several local tribes. About 40 people attended via Zoom. Similar training was given for Tulare County and local tribes on June 3, 2021, which about 20 people attended.

We updated a tribal client’s Communicable Disease Ordinance to better allow them to enforce quarantine and isolation orders issued by their Tribal Public Health Authority, which they believe will improve their control of the spread of COVID-19 on the reservation.

We helped an individual client obtain a residential lease on an allotment on his tribe’s reservation, where he has built a traditional cedar plank house.

We persuaded a County in an ICWA case to support a tribal client’s preferred placement. The County first supported a non-Indian extended family member in another state, while our client’s placement was a tribal member but not family. However, the tribe’s placement was local and had another tribal member child in the home, and the tribe’s position was that their home would best support the child’s connection to the tribe. After some contention and negotiation between the tribe and County, we modified the ICWA’s placement preferences by tribal Resolution. The court ultimately ordered the tribal family as the child’s placement.

We continue to work with the California Public Domain Allottee Association to develop potential collaborations with environmental and natural resource nonprofits and academic research institutes. In addition, we continued to assist several individuals with regaining access to landlocked allotments.

We are helping an individual client appeal to the Social Security Administration (SSA) after she received a coronavirus-related stimulus payment from her tribe – based on her status as a low-income individual on SSI – but then had her SSI benefits reduced by the SSA. This poses a circular problem and does not serve the intent of the funding, which was to stimulate the economy by giving those most likely to spend money a little extra to spend.

Finally, we have recently begun work on how a new California law, The Families Over Fees Act (AB 1869), can help write off certain unpaid criminal administrative fees and related liens and interest, which disproportionately affect low-income individuals and pose a barrier to successful reentry to society.

“Knowledge is Power”: CILS’ Focus on Tribal Community Education

By Dorothy Alther, CILS Executive Director

Federal Indian law is complex and is a highly specialized area of legal practice. Lawyers outside the practice of Indian law, including state and federal court judges, are often as confused as the public at large on the maze of jurisdictional laws and regulations that govern in Indian Country. Yet, the lives of tribal community members, daily, must navigate the tribal, state, and federal laws that control their housing, health care, environment, parent and child relationships, income tax, their government institutions such as tribal courts, law enforcement, and their economic enterprises.

In addition to providing direct legal representation to Native Americans and tribes, CILS provides Indian law training and presentations. The purpose of the training is to help tribal members, leaders, and outside agencies and departments that interact with the tribal community better understand the laws that apply (and do not apply) in Indian Country. Our training and educational presentations are developed for the audience we are speaking to and are designed for interactive engagement to respond to questions without intimidation or hesitation. Our community education services are free if opened to other tribes and tribal communities.

CILS has a vast library of existing training and educational materials which it expands upon as new laws, regulations, policies, and issues evolve in Indian Country. The following is a non-inclusive list of training topics that CILS has developed and that our experienced and talented attorney staff are available to provide to your community upon request:

Indian Child Welfare Act (ICWA)

  • Introduction to ICWA and BIA Regulations
  • Qualified Expert Witnesses
  • Active Efforts
  • Criminal Background Checks for Tribally Approved Homes
  • Tribal Customary Adoptions
  • Tribal ICWA Advocate Training

Public Law 280 Jurisdiction

  • Introduction to PL 280
  • Policing in a PL 280 State
  • Regulatory Jurisdiction
  • Retrocession and Re-Assumption of Federal Jurisdiction Under the TLOA

Developing Tribal Courts

  • Training Tribal Court Advocates
  • Expanded Jurisdiction Under TLOA

Cultural Resource Protection Laws

  • Tribal Consultation Under State and Federal Law
  • NAGPRA

American Indian Probate Reform Act

  • Simple Estate Planning

Section 184-Federal Guarantee Home Loan Program

Tribal Law and Order Act

Indian Civil Rights Act

Economic Development

Expungement

Domestic Violence

  • Code Development
  • Enforcement of Tribal Court DV Orders
  • Expanded Jurisdiction Over Non-Indians for Acts of Domestic Violence

Please contact your nearest CILS Office if your tribe or tribal community would like to host a training or education presentation for your community.

Supreme Court Ruling Confirms Tribal Inherent Authority and Makes Tribal Communities Safer

By Dorothy Alther, CILS Executive Director

On June 1, 2021, the Supreme Court, in a unanimous decision, issued its ruling in U.S. v. Cooley finding that tribes have inherent authority to stop non-Indians on a right-of-way within the boundaries of an Indian reservation who are suspected of committing a state or federal crime. Once stopped, Tribal police officers, acting with probable cause, have the authority to conduct a limited investigation and if evidence of a crime is discovered, the Tribal officer can detain the non-Indian until he or she can be transferred or transported to the custody of state or federal law enforcement.  To those less familiar with Indian Country this ruling might seem to be so obvious that it was unnecessary for the Supreme Court to have announced it in a unanimous ruling.  However, while tribal authority over non-Indians on Tribal land has long been settled, that authority over non-Indians on non-Tribal lands, such as right-of-way, has been less clearly defined until now.

The Cooley case involved a Crow Tribal police officer who encountered a non-Indian stopped on a state highway within the Crow reservation early one morning.  After questioning the driver, the Tribal officer became suspicious of the driver’s story and explanation of where he been and why he was parked on the highway. After detaining the driver and a child who was in the vehicle, the Tribal officer conducted a search of the vehicle and discovered firearms, drugs, and drug paraphernalia. The driver and child were turned over to a local sheriff deputy and Bureau of Indian Affairs police officer, as was the evidence seized during the Tribal officer’s search.  A federal court dismissed the drug and firearm charges against the driver finding the Tribal officer lacked authority to conduct the search, therefore the evidence obtained during the search was inadmissible.  The case was appealed to the Ninth Circuit Court of Appeals, which upheld the suppression of the evidence ruling that Tribal authority over a non-Indian on non-Tribal lands, such as right-of-way, was limited to the Tribal officer first determining whether the driver is Indian. If the driver is non-Indian, a Tribal officer cannot search the driver’s person or vehicle unless there is “apparent or obvious” evidence that a state or federal crime has been committed.  If no such evidence is present, the Tribal officer must release the driver.

In overruling the Ninth Circuit Court, the Supreme Court applied a test created in the 1981 case of Montana v. United States, which provides two exceptions to the general rule that a tribe lacks jurisdiction over non-Indian on non-tribal lands within the reservation. The first exception is when the non-Indian consents to Tribal jurisdiction. Under the second exception, tribal jurisdiction can be extended to non-Indians on non-tribal lands if the person’s conduct “… threatens or has a direct effect on … the health or welfare of the tribe.”  The Supreme Court found that the Montana two exception fit the current case like a “glove.”

CILS paid close attention to this case due to its close work with Tribal governments, particularly Tribal police departments, and representing the California Tribal Police Chiefs Association (CTPCA).  The Ninth Circuit Court decision in Cooley raised practical and safety concerns for Tribal officers who routinely encounter non-Indians on the many state and county right-of-ways that crisscross California Indian Country. The United States, who prosecuted defendant Cooley, sought Supreme Court review of the Ninth Circuit decision seeking not only reversal but clarification on inherent Tribal authority over non-Indians found on non-Tribal lands within the reservation that have or are committing crimes.

CILS, on behalf of the CTPCA, filed an amicus (friend of the court) brief in partnership with the law firm Jenner & Block LLP in support of the federal government’s effort to overturn the Ninth Circuit Court’s decision.  Our brief focused on the day-to-day practical impacts the Ninth Circuit’s ruling would have on Tribal law enforcement officers and public safety in the tribal communities they are sworn to protect. The Supreme Court took note of our argument that negotiating county MOUs or other cross-deputations agreements are not the “be all” solution to Ninth Circuit Court’s ruling.

The Supreme Court’s decision in Cooley has given Tribes, their Tribal police officers the clarity needed when encountering non-Indians committing crimes on non-Tribal lands within a Tribe’s reservation.  The decision also establishes additional definition on the reach of inherent Tribal authority over non-Indians in general and to the application of the Montana two exception. The Supreme Court decision is clearly a win for Tribes, Tribal law enforcement and to Tribal community safety.

The U.S. v. Cooley decision here

If you have further questions regarding the holding or the impacts of the decision on your tribal law enforcement department please contact Dorothy Alther at dalther@calindian.org or Jedd Parr jparr@calindian.org.