California's first Native American assemblymember champions historic tribal protection

As we embark on a new California legislative session, California Indian Legal Services (CILS) commends Assemblymember James Ramos for his tireless efforts - not only in serving his district constituents but in making significant, statewide impacts for Tribes and tribal communities. As the first California Native American to serve in the state legislature, Assemblymember Ramos has been instrumental in navigating the complexities of state-tribal relationships in the legislative arm and ensuring Native American priorities are represented in these policy discussions.

Tribes and their citizens have a unique political status that cannot be reduced to a racial classification or considered solely within the framework of US and California citizenship. This distinction necessitates tailored legislative efforts to ensure Tribes are not disproportionately impacted or erased from California's progress.

As Legal Director of CILS and a member of the Oglala Sioux Tribe, I wish to share my perspective on the impacts and outcomes of Assemblymember Ramos' legislative successes in tribal communities. Having practiced law since 1985, I am considered a leading expert in PL 280 and federal Indian law. In addition to overseeing CILS' legal work, I maintain an active caseload and serve as legal counsel for multiple Tribes and tribal entities. My current focus includes impact litigation and legislation on key federal Indian law matters, as well as working directly with Tribes to strengthen their governmental infrastructure. I have extensive experience assisting Tribes in developing tribal courts and law enforcement, revising governing documents, and building legal frameworks for tribal programs.

This work aligns with CILS' longstanding mission. Established in 1967, CILS is one of the oldest nonprofit Native American law firms in the country. As a tribally chartered and tribally controlled organization, CILS serves Tribes and Native Americans statewide and is dedicated to protecting and advancing Indian rights, self-determination, and Tribal nation-building. As part of its current strategic plan, CILS is working to establish a Capitol Presence to ensure Tribes and Native American voices are fully represented in California's political landscape.

AB 81 - California Indian Child Welfare Act

To fully understand the purpose and impetus for AB 81, some historical background is in order. In 1978, Congress enacted the Indian Child Welfare Act (ICWA) after finding that Native American children were being removed from their families and tribal communities and placed with non-Native families at an alarming rate. Further, many of these unwarranted removals by state courts and child protective service agencies were the product of misunderstanding of tribal cultural and traditional child-rearing practices. In some cases, removal was a product of discrimination against Native Americans. Congress expressly found that "...there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe..."

Some of the federal protections afforded under the ICWA are imposing a heightened standard for removal of a Native child from their family, requiring notice to the child's tribe of the child custody proceedings and granting the tribe the right to intervene into the proceeding. Placement preferences must include, in addition to the Indian family, tribal family placement.

The ICWA establishes the minimum standards for state court proceedings and are not limited to just dependency. It also includes juvenile delinquency cases, probate guardianship, and family court proceedings involving Indian children when the proceeding may result in a voluntary or involuntary placement or adoption of the Indian child. Over the years, California has enacted and incorporated the provisions of the ICWA into state law and, in some cases, expanded the federal standards and adopted Bureau of Indian Affairs (BIA) regulations that clarify provisions of the Act.

The ICWA has not always been embraced by some states and adoption advocates. Opposition to the ICWA became front and center. in 2017. The State of Texas, later joined by Louisiana and Indiana, along with three non-Indian foster families who had a Native American child placed with them, filed a federal lawsuit alleging ICWA was unconstitutional on several grounds, with a primary focus on violation of the Equal Protection Clause. Defendants included the federal Department of Health and Human Services and the Department of Interior. Tribal defendant intervenors comprised of the Morongo Band of Mission Indians, Quinault Indian Nation, Cherokee Nation, and Oneida Nation of Wisconsin. The case ultimately found its way to the Supreme Court, which ruled that the ICWA was constitutional on the varying challenges advanced by the plaintiffs. On the Equal Protection claim, the Supreme Court declined to address the merits of the claim, finding that neither the plaintiff states nor individuals had standing to maintain the challenge. One concurring opinion, however, signaled that:

"Courts, including ultimately this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing--for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding."

This statement left the door open for a future constitutional challenge to the ICWA.

The response from Tribes, tribal communities, organizations, Indian law scholars and ICWA advocates to the Brackeen case was unprecedented since upholding the Equal Protection claim could have had far-reaching implications. Almost all federal Indian statutes and regulations are based on the well-established premise that Indian status is a political, not racial, classification. Finding otherwise could unravel these federal laws. Many see the Brackeen decision as a temporary reprieve from ICWA opponents, and that if the federal law should be struck down in the future, states need to stand ready to protect tribes' member children. This backdrop was one of the driving forces behind AB 81 and other similar state laws around the country.

AB 81 focuses primarily on the Welfare and Institution Code (W&I) with over 30 amendments. Some changes under AB 81 are non-substantive and simply remove reference to the federal ICWA, replacing it with a state law citation. A full section-by-section analysis of AB 81 is beyond the scope of this article. However, by way of example, AB 81 adopts the congressional findings of the federal ICWA as state law.

AB 81 adds to WIC 224:

The Legislature finds and declares the following:

(c) It is the intent of the Legislature to create a comprehensive act to protect and preserve Indian families in California and to aid in improving implementation of applicable state and federal laws. This act will retain California's heightened standards, protections, and services and supports for Indian children. This act shall hereafter be known as the California Indian Child Welfare Act and shall include all provisions in this code, the Family Code, Health and Safety Code, and the Probate Code involving an Indian child to maintain clarity and consistency in provisions with application to Indian children, as defined in subdivision (b) of Section 224.1. Existing provisions, and any future amendments to provisions, applicable to Indian children in this code, the Family Code, the Health and Safety Code, or the Probate Code, or amending or creating programs designed to support tribes or tribal organizations, Indian children, and parents or Indian custodians of Indian children, as these terms are defined in Section 224.1, in their participation in Indian child custody proceedings shall be considered part of the California Indian Child Welfare Act.

AB 1863 and AB 2348 - "Feather Alert" process

Ramos has been at the forefront of the issue of Missing and Murdered Indigenous People ("MMIP"). The one staggering statistic found by the Urban Indian Health Institute was that, in 2016, the "National Crime Information Center reported that there were 5,712 reports of missing American Indian and Alaska Native women and girls, though the US Department of Justice's federal missing persons database only logged 116 cases."  In 2020, the Sovereign Bodies Institute found that 165 missing and murdered Indigenous women, girls, and two-spirit individuals were reported across California. This number of reported cases made California one of the top five states with the highest number of MMIP cases.

One focus of Ramos was passing legislation that would allow the California Highway Patrol (CHP) to issue public alerts through the Emergency Alert System for abducted or unexplained disappearances of Indigenous persons. Assembly Bill 1314, known as the "California Statewide Feather Alert Program," was introduced by Ramos and became law in 2022. AB 1314 added Section 8594.13 to the California Government Code. The CHP claimed that the "Feather Alert" will provide immediate information to the public to aid in the swift recovery of missing Indigenous persons.

Under AB 1314, the Tribes and/or tribal police departments were required to contact and work with the local law enforcement agency where the missing Indigenous person was last seen or reportedly might have been taken. The local department would evaluate the facts of the case to determine if the report met set criteria established under Section 8594.13 and if the case should be submitted to CHP. Cases are evaluated under the following criteria:

1. The missing person is an Indigenous woman or Indigenous person.

2. The investigating law enforcement agency has utilized available local and tribal resources.

3. The law enforcement agency determines that the person has gone missing under unexplainable or suspicious circumstances.

4. The law enforcement agency believes that the person is in danger.

5. There is information available that, if disseminated to the public, could assist in the safe recovery of the missing person.

While well intended, tribes and tribal police departments that attempted to use the Feather Alert found the process lacking in many areas. Having local law enforcement agencies determine whether the CHP would be notified was frustrating and resulted in time delays. When notifications were passed to CHP, there were further delays and no requirement for CHP to communicate with the Tribe or tribal law enforcement why a Feather Alert would not be issued.

Passage of AB 1863 and AB 2348 amends Government Code § 8594.13 to address the issues that tribes and tribal law enforcement encountered in requesting a Feather Alert. The amends include:

 The criteria to determine whether a Feather Alert should be issued is modified and broadened as follows:

(1) The missing person is an Indigenous woman or an Indigenous person.

(2) The investigating law enforcement agency has utilized available local and tribal resources.

(3) The law enforcement agency determines that the person is missing. 

(4) The law enforcement agency or Tribe believes that the person is in danger and is missing under circumstances that indicate any of the following: 

(A) The missing person's physical safety may be endangered.

(B) The missing person may be subject to trafficking.

(C) The missing person suffers from a mental or physical disability, or a substance use disorder.

(5) There is information available that, if disseminated to the public, could assist in the safe recovery of the missing person.

 A definition of "Law enforcement agency" that includes "tribal police departments." This allows tribal law enforcement to evaluate and apply the criteria set forth under § 8594.13 and to make requests directly to CHP.

 Allows tribes who not have tribal law enforcement to apply the criteria under § 8594.13 and submit requests directly to CHP.

 Requires CHP, in developing policies and procedures for submission and issuance of a Feather Alert, to consult with Tribes and representatives from the Sheriffs, Police Chiefs and Peace Officer Associations.

 Specific areas addressing communications, information-sharing and other details are required to be addressed in the CHP policies and procedures.

 Law enforcement agencies must determine, within 24 hours of receiving a report, if a missing Indigenous person meets the § 8594.13 criteria. If they fail to do so, the Tribe may contact CHP directly.

 CHP has 48 hours to decide whether to issue a Feather Alert once submitted. If the request is declined, CHP must notify, in writing, the Tribe or law enforcement agency the reasons for the declination within 48 hours of making its decision.   

As you can see, the amendments to § 8594.13 are responsive to the issues that Tribes and tribal law enforcement encountered in seeking a Feather Alert. With CHP consulting with tribes on developing the policies and procedures, the Feather Alert process is expected to improve, and become more effective, as intended.

AB 2695 - Disaggregated crime data of incidents in Indian Country

In his tireless pursuit of bringing attention to the MMIP issue in California Indian Country, Ramos successfully authored and passed AB 3099 in 2020. The bill addresses state and local law enforcement issues related to MMIP investigations and apprehensions, and provides a mandate to:

 Develop guidance for law enforcement training on policing and criminal investigations on tribal lands consistent with Public Law 280 (PL 280), a 1953 federal law granting California criminal jurisdiction in Indian Country to be exercised concurrently with Tribes.

 Provide educational materials geared towards tribal citizens about the complexities of concurrent criminal jurisdiction under PL 280, including information relating to victims' rights and the availability of services in the state.

 Share guidance on improving crime reporting, crime statistics, criminal procedures, and investigative tools for police investigations conducted under PL 280.

 Facilitate and support improved communication between local law enforcement agencies and tribal governments.

 Conduct a study to determine the scope of the issue of missing and murdered Native Americans in California, identifying barriers to reporting and ultimately issuing recommendations to the State Legislature

As with any social issue, the more information one has about the extent, degree and frequency of a problem in a community, the better equipped lawmakers are to address the problem. While there has been national studies and data collected from federal agencies on the MMIP problem in Indian Country, the extent of the problem specific to California is incomplete and dated. To further AB 3099's mandate to improve crime reporting and statistics, Ramos found that better crime data was needed on MMIP and crimes in general occurring on tribal laws. On close examination of California crime data, it was revealed that not all state and local law enforcement agencies identify whether a crime occurred on tribal land or a call for assistance was made from an Indian reservation. Indian Country crimes and calls are included in a county's overall crime data and report that is submitted to the CA Department of Justice.

AB 2697 was passed to address this problem. The bill adds a new section to Penal Code, §13020.5 (a), which simply states that "[r]ecords and data reported in alignment with the federal National Incident-Based Reporting system, pursuant to Sections 13010 and 13020, shall be disaggregated by whether an incident occurred in Indian country."  Subsection (b) defines "Indian Country" using the federal definition found at 18 U.S.C. § 1151.

While AB 2695 may have flown under the radar for most people, for those of us who work in Indian Country, and especially on law enforcement-related matters, the bill could have far-reaching impact. Allocation of resources (aka funding) is driven by need, which is demonstrated through data and numbers. The crime data showing the number of MMIP calls and cases, domestic violence, and other crimes on tribal lands could result in increased funding for local and state law enforcement. This data could also assist tribes in demanding greater attention and resources from the federal government. All of this could lead to safer tribal communities.

AB 1284 - Tribal Cogovernance and Comanagement of Ancestral Lands and Waters Act

The California Natural Resources Agency (CNRA) is the umbrella agency for 26 departments which includes boards, conservancies and commissions that are all charged with managing and protecting the state's natural, historical and cultural resources. While the CNRA and its various departments are required or encouraged either by statute or Executive Order to consult with Tribes in the development of resource policy and decision-making, AB 1284 authorizes the CNRA to enter into co-management and/or co-governance agreements with federally recognized Tribes. AB 1284 gives Tribes a seat at the table and an active voice in the decision-making process on how state resource decisions are made and implemented.

Pre-colonization, Tribes throughout California depended on the natural environment to survive, whether it was the fishery, acorns and pinon, hunting of game or cultivation crops. Tribes are often referred to as the first environmentalist and the original stewards of the land. They have traditional knowledge of how to protect and preserve natural resources. AB 1284 acknowledges the importance of tribal input and experience in adopting environmental policies and protecting resources.

Notably, the two Tribes that sponsored AB 1284 - the Pulikla Tribe of Yurok People and the Tolowa Dee-ni' Nation - joined with the Cher-Ae Heights Indian Community of the Trinidad Rancheria in early 2024 to designate the "Yurok-Tolowa-Dee-ni' Indigenous Marine Stewardship Area" off the northwest California coast the first marine protection area enacted by Tribal governments in the US.  The Tribal Resolution making the designation reads, in part:

"Our Tribes hereby declare and designate the ocean and coastal territory from what is commonly known as the California - Oregon border (north) to Little River (south), mean high tide (east), and out three (3) nautical miles beyond the outermost islands, reefs, and rocks, and including all waters between those and the coast (west), which encompasses to be the Yurok - Tolowa Dee-ni′ Indigenous Marine Stewardship Area or IMSA; and be it further resolved, these waters are also claimed by the State of California, who through its California Natural Resources Agency Pathways to 30x30: Accelerating Conservation of California's Nature Report, support the concept of Indigenous Marine Stewardship." 

Implementation of AB 1284 might follow the federal government's long history of promoting, signing and implementing co-management (joint decision-making) and co-stewardship (sharing of tribal techniques, practices and expertise in resource management). The Biden administration recognized the importance of increasing tribal participation in the management and stewardship of federal lands and waters that are significant to tribal communities. On Dec. 9, 2024, Secretary of the Department of Interior Deb Haaland applauded the 400 co-stewardship agreements signed by the Biden-Harris administration with tribes, Alaska Native Corporations and consortiums.

AB 2108 - Luke Madrigal Act

The National Center for Missing & Exploited Children (NCMEC) conducted an analysis of missing Native American Children between 2012 -2021 and found that Native American children were reported missing from social service care at a higher rate compared to all other children missing from foster care. This finding, combined with data showing that Native Americans and Black children are placed in foster care at a higher rate than non-minority children, shows a critical crisis facing Native American children, their families and their tribes. Compounding this crisis is that all missing youth face heightened dangers from drugs, sexual exploitation and other harms.

Under Welfare & Institution Code § 16501.35, county child welfare agencies and probation departments have long been legally required to implement policies and procedures requiring them to identify children receiving child welfare services who are, or are at risk of becoming, victims of commercial sexual exploitation. Further, the law broadly required that the welfare agencies and departments adopt protocols addressing missing youth receiving social services. Aside from taking steps to "expeditiously locate any child missing from foster care," the agency and department protocols required that notice be given to "individuals or entities" entitled to it when a minor is missing. When notice must be given and who was entitled to it was not defined under the statute.

The Luke Madrigal Act (AB 2108) amends §16501.35, giving greater detail about what county child welfare agencies' and probation departments' protocols must include, which now extends to specific notice to tribes. Here are some of those critical changes with emphasis on references to tribes, tribal caregivers and tribal police:

Notification must be given immediately, but no less than 24 hours, to:

(i) The child's or nonminor dependent's parents or Indian custodians unless parental notification has been limited or terminated by the court.

(ii) The child's or nonminor dependent's legal guardians unless guardian notification has been limited or terminated by the court.

(iii) The attorneys for the parents, legal guardians, or Indian custodians unless notification of the parents, guardians or Indian custodians has been limited or terminated by the court.

(iv) The child's or nonminor dependent's attorney appointed pursuant to subdivision (c) of Section 317, or Section 634.

(v) The child's or nonminor dependent's Court-Appointed Special Advocate, if one has been appointed.

(vi) The court of jurisdiction.

(vii) The child's or nonminor dependent's tribe or tribal representative, if the child or nonminor dependent is, or may be, an Indian child, as defined in Section 224.1.

(viii) Any known sibling of the child or nonminor dependent who is 10 years of age or older and adjudged to be a dependent child of the juvenile court, if such notice would not be contrary to the safety and well-being of that sibling. Notice to siblings shall be provided in a trauma-informed manner.

(ix) The local law enforcement agency, including, if applicable, any tribal law enforcement agency for the child's tribe in the case of an Indian child, as defined in Section 224.1. (Emphasis added)

The bill also defines "missing from foster care" to mean more than just when  a child's whereabouts are unknown to the county child welfare agency or probation department, but also "when the county child welfare agency or probation department has located a child subject to an order of foster care placement in a location not approved by the court that may pose a risk to the child, taking into account the age, intelligence, mental functioning, and physical condition of the child."

The purpose and goal of the Luke Madrigal Act is to make all foster youth safe by giving more details to the agencies and departments that are responsible for their care and oversight. For Native American youth in foster care, there are other factors that must be considered, given their unique political status. Tribes know their youth, and because of the close tribal community family, they can bring resources to a missing tribal member youth perhaps not seen in other communities. Early tribal notification and involvement of tribal police can only enhance better outcomes for missing Native youth.

AB 1821 Teaching the Impacts on California Native Americans During the Mission and Gold Rush Eras

When my daughters (now adults) were in 4^th grade they brought home a "Mission Project" that involved hand-crafting a replicate of one of the 21 California Missions and writing a report on the Mission's history.  Some background materials were provided to each student on the Mission era in California as a starting point for their Project. As an Indian lawyer, I found the Project completely devoid of any of the atrocities that the Mission era inflicted on California Natives. When Native people were referenced, they were described as converted Christians who lived and worked at the Mission in exchange for food, shelter and safety. As good parents, my husband and I built the perfect model of our daughters' chosen Mission (with assistance from our daughter handing us the glue). As an Indian lawyer, I felt compelled to have each of my daughters' Mission reports include a true account of the treatment of the Natives who were enslaved and forced to build the Mission and the countless number of those who died in doing so. Luckily, both of my daughters received passing grades on their Mission Project and made it out of 4^th grade.

AB 1821, through a series of amendments to the Education Code, requires that the Instructional Quality Commission, when developing a social science curriculum for understanding the Spanish (Mission) colonization of California and the Gold Rush Era, "include the treatment and perspectives of Native Americans during those periods."  Specifically, when developing a curriculum that deals with civil rights, human rights violations, genocide, slavery, and the Holocaust, the Commission shall consider, in consultation with California tribes, including in that curriculum framework or in its evaluation criteria for instructional materials, content on the treatment and perspectives of Native Americans during the periods of the Mission and the Gold Rush Era.

Telling the history and treatment of Native peoples from their perspective during key historical periods in California is a long overview. The complete narrative of the treatment of California Natives during the Mission and Gold Rush eras is beyond the scope of this article but suffice it to say Native Americans view these periods as ending in the loss of their land and ancestors. These eras brought the enslavement of Native people, their displacement, disease, poverty, and the destruction of their livelihood.

At the beginning of the Mission era (1769) the California Native American population was 300,000 by the end of the period (1845) the population had fallen to 150,000 with the tribes living along the coast being hit the hardest. Disease was the dominant cause of this deviation. Any recovery from the Mission era was short-lived since the Gold Rush followed (1848) forcing Native peoples from their ancestorial lands and their traditional livelihood. The Gold Rush era brought more disease and reduced the Native population to 30,000 over 12 years.

Despite these devastating events, California tribes found renewed hope that federal intervention would secure for them the remaining portions of their ancestral land that had not been occupied by white settlers. The federal government promised, through treaties, that tribes would be settled on reservations that would be protected from encroachment. The treaty process was initiated in 1851 and ended on Jan. 5th of 1852. In all, eighteen treaties were negotiated. The treaties agreed to not only set aside certain tracts of land for the signatory tribes but additionally promised the assistance of farmers, schoolteachers, blacksmiths, stock animals, seeds and agricultural equipment, cloth, and much more. In return, the signatory tribes promised to forever quitclaim to the United States their lands. Just what specific lands were being surrendered were not specified. The treaties were signed by 114 tribal representatives. Despite the obvious fact that not all California Indian tribes had been consulted or contacted they nonetheless would be bound by the negotiations. The federal government promised to reserve 7,466,000 acres of land for the dispossessed Indians. When the treaties were presented to Congress for ratification, they were met with strong opposition from California state legislators, mining companies, California ranchers and farmers. Congress heeded the opposition and proceeded to seal and lock the treaties away for almost 50 years. Although uncovered, they were never ratified leaving tribes and Indigenous people landless and homeless.

The early treatment of California Native peoples and tribes by Spain, Mexico, the state, and the federal government is a tragic and troubling chapter in California's history. However, it is a history that must be acknowledged and shared--something AB 1821 aims to ensure.

For inquiries about CILS' work and mission, contact info@calindian.org.