BILL ANALYSIS Ó SB 997 Page 1 SENATE THIRD READING SB 997 (Lara) As Amended June 14, 2016 Majority vote SENATE VOTE: 28-9 ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |Ting | | | | | | | | | | | | ------------------------------------------------------------------ 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 SB 997 Page 2 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 SB 997 Page 3 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 SB 997 Page 4 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 SB 997 Page 5 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 SB 997 Page 6 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 SB 997 Page 7