BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 997


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          SENATE THIRD READING


          SB  
          997 (Lara)


          As Amended  August 11, 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.  This bill also addresses chaptering conflicts  
          between this bill and AB 2566 of the current legislative session  
          by adding double-jointing language.


          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  








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          to be.  (Ibid.)  Then, the notary can either rely on oaths made  
          by credible witnesses, or - far more commonly-on some form of  
          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  








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               eliminating the need for the OHA to hear testimony from  
               the witnesses as to the above, and by reducing the  
               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  








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          a distinct community, occupying its own territory, with  
          boundaries accurately described, in which the laws of Georgia  
          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.









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          This bill sensibly applies these requirements to an  
          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."




          Analysis Prepared by:                                             
                          Alison Merrilees / JUD. / (916) 319-2334  FN:  
          0003832