BILL ANALYSIS Ó
SB 997
Page 1
SENATE THIRD READING
SB
997 (Lara)
As Amended June 14, 2016
Majority vote
SENATE VOTE: 28-9
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
| | | | |
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SUMMARY: Revises the list of acceptable non-state and
foreign-issued documents that notaries public may reasonably
rely upon as evidence to prove a person's identity when
acknowledging a written instrument. Specifically, this bill
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authorizes a notary public to take acknowledgement of a written
instrument in reasonable reliance upon the presentation of the
following document as satisfactory evidence that the person is
the same individual described in and executing the instrument:
An identification card issued by a federally recognized tribal
government.
FISCAL EFFECT: None.
COMMENTS: When an individual is looking to obtain services that
require a formal written instrument (such as an advance health
care directive, a mortgage, a deed, a property transfer, a
guardianship letter, or powers of attorney), the individual must
obtain the acknowledgment of a notary public on that written
instrument. It is well established that "the purpose of a
certificate of acknowledgment is to establish, under oath, the
identity of the person making the acknowledgment and the
genuineness of the signature subscribed to the instrument. As
otherwise stated, the purpose of statutes requiring
acknowledgment is to? give notice to those examining the record
that the execution has been made with due care and
circumspection." (1 Cal.Jur.3d (2014) Acknowledgments, Section
2, p. 749-50.)
Current law prohibits a notary public from acknowledging a
written instrument unless the notary has satisfactory evidence
that the person making the acknowledgement is the person he or
she claims to be. (Civil Code Section 1185.) As it stands,
there are several ways for the person to establish his or her
identity. First and foremost, there must be no evidence or
other circumstances that would lead a reasonable person to
believe that the person is not the individual he or she claims
to be. (Ibid.) Then, the notary can either rely on oaths made
by credible witnesses, or - far more commonly-on some form of
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identification.
For sake of simplicity, the forms of identification can be
grouped into two categories: 1) identification documents issued
by the State of California or by the United States; or 2)
documents issued outside of California, including foreign
countries.
Need for Notarization is Especially Acute on Tribal Lands and
for Tribal Members. According to the author:
Native Americans often require notarizations relating to
business with the Bureau of Indian Affairs (BIA) and
Office of the Special Trustee (OST), both sub-agencies
under the Department of the Interior. One common example
is when a Native American executes a last will and
testament for disposition of property held in trust for
his or her benefit by the federal government. Special
federal laws and regulations govern the validity of such
wills. (See 25 [United States Code] U.S.C. section 2201
et seq. and 25 [Code of Federal Regulations] C.F.R. Part
15.) The federal Office of Hearings and Appeals (OHA),
also under the Department of the Interior, follows these
laws and regulations when conducting the probate of a
deceased Native American's estate. ...The OHA process
for such probates is hastened when a testator executes a
self-proving affidavit in order to confirm the identity
of the witnesses to the will, to confirm his or her own
testamentary capacity, and to verify that the testator
was not under duress or other undue influence. (25 C.F.R.
15.9.) The affidavit, which must be notarized in order
to be valid, often may speed up the probate process by
eliminating the need for the OHA to hear testimony from
the witnesses as to the above, and by reducing the
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ability of disgruntled relatives or heirs to challenge
the will's validity. Other examples of situations in
which a Native American requires a notarial act include
establishing eligibility for tribally-administered
welfare programs or housing assistance. Clients of these
programs are often indigent.
The need for additional identification options for tribal
members is particularly acute in California, according to the
author, because our state has the highest population of
residents identifying as Native American, and the second-highest
number of federally-recognized tribes, of any state in the
nation. (U.S. Census Bureau, (ST-99-46) States Ranked by
American Indian and Alaska Native Population, July 1, 1999
(August 30, 2000); 81 Fed. Reg. 26826 (May 4, 2016).)
This Bill Appropriately Allows Reliance on a Federally
Recognized Tribal Government-Issued Identification. Existing
state law does not specifically authorize tribal identification
cards to be accepted as a valid form of personal identification
that is necessary to obtain notary services and such
identification cards do not fit within the existing categories
of documents that are acceptable to prove the bearer's identity.
A federally recognized tribe is considered a "sovereign
nation," but not a "foreign" one and certainly not a "state
other than California."
In Worcester v. Georgia (31 United States (U.S.) (6 Pet.) 515
(1832)), the United States Supreme Court addressed the issue of
whether the state of Georgia could impose criminal penalties on
a number of missionaries who were residing in Cherokee
territory, without having obtained licenses from the governor of
Georgia. Ruling that the laws of Georgia could have no effect in
Cherokee territory, the Court said, "[t]he Cherokee nation...is
a distinct community, occupying its own territory, with
boundaries accurately described, in which the laws of Georgia
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can have no force, and which the citizens of Georgia have no
right to enter, but with the assent of the Cherokees themselves,
or in conformity with treaties, and with the acts of
Congress[.]"
According to the author, a growing number of other states have
specifically authorized tribal identification cards to be used.
For example, Washington and Oregon allow tribal identification
cards for all notarial purposes, and Colorado, Montana,
Minnesota, Nevada, Arizona, and South Dakota allow tribal
identification cards for a number of other purposes such as
voter identification/registration, banking, age verification,
motor vehicle title registrations, and alcohol/tobacco
purchases.
This bill would allow a notary public to reasonably rely on an
identification card issued by a federally recognized tribal
government to establish the identity of the person seeking the
acknowledgment of the notary public.
Security Measures In Existing Law Would Apply to Tribal
Identification, Ensuring Authenticity. This bill would allow,
as "satisfactory evidence" that the person making the
acknowledgment is the individual who is described in a document,
reasonable reliance upon "an identification card issued by a
federally recognized tribal government." But it would require
that such an identification card meet the following criteria,
consistent with other types of identification issued by
governments outside of California.
The bill sensibly applies these requirements to an
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identification card issued by a federally recognized tribal
government, ensuring their security and authenticity in a
similar manner to other government-issued identification.
According to the author, "Tribal identification cards must meet
the same criteria as documents issued by foreign governments,
other states, the Armed Forces, and city, county, and state
offices and agencies."
Previous or Related Legislation: AB 2566 (Nazarian), of the
current legislative session, authorizes a notary public to
reasonably rely upon a valid consular identification document
issued by a consulate from the applicant's county of
citizenship, or a valid passport from the applicant's country of
citizenship. AB 2566 is pending on the Senate Floor.
AB 442 (Arambula) of 2009, sought to authorize notaries public
to reasonably rely on presentation of a Matricular Consular, an
identification card issued by the Mexican government, to
establish the identity of a person attempting to have a document
notarized. AB 442 was vetoed.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0003543
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