BILL ANALYSIS
AB 1325
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1325 (Cook and Beall) - As Amended: April 21, 2009
As Proposed to be Amended
SUBJECT : INDIAN CHILDREN: CUSTOMARY ADOPTION
KEY ISSUES :
1)SHOULD THE TRIBES OF INDIAN CHILDREN IN THE DEPENDENCY SYSTEM
BE PERMITTED TO USE "CUSTOMARY ADOPTION," WHEREBY THE TRIBE
APPROVES AN ADOPTION WITHOUT TERMINATING THE BIRTH PARENTS'
RIGHTS, GIVING THE CHILDREN MORE THAN TWO LEGAL PARENTS?
2)GIVEN THAT THIS BILL PROPOSES TO ESTABLISH A FIRST IN
CALIFORNIA - adoption without termination of the birth PARENTS'
rights - SHOULD CUSTOMARY ADOPTION BE SUBJECT TO REVIEW AND A
SUNSET TO ENSURE THAT CHILDREN'S BEST INTERESTS, ALONG WITH THE
INTERESTS OF THE TRIBE, ARE PROPERLY PROTECTED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by the Soboba Band of Luiseno Indians,
establishes a process to allow Indian children in the child
welfare system to be provided with the permanence offered by
adoption without first terminating the birth parents rights
through the use of traditional or customary adoption. The bill
represents the authors' second attempt to establish customary
adoption in California. Last year's AB 2736 was not moved off
the Senate Floor. Proponents argue that customary adoption
allows the child to retain his or her connection with the tribe
and allows for the flow of Adoption Assistance Program funds to
the adoptive parents. In dependency cases involving Indian
children where termination of parental rights is warranted, this
bill permits the child's tribe to seek tribal customary adoption
without ending the birth parent's rights. The tribe, through a
process that permits participation by the parties and their
counsel, develops an adoption order, which specifies the legal
rights and obligations of the birth parents or Indian custodian
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and the prospective adoptive parents. The order is then filed
with the dependency court, which must issue the order as
submitted by the tribe, provided that it complies with full,
faith and credit and other specified requirements.
The bill is supported by numerous tribes, the counties and the
County Welfare Directors Association, but is opposed unless
amended by the Family Law Section of the State Bar. This bill
passed unanimously out of the Assembly Human Services Committee.
The analysis suggests, and the author has agreed to take, a
number of amendments to ensure that the rights of all parties,
and the best interests of the child, are protected.
SUMMARY : As of July 1, 2010, establishes customary adoption as
an additional exception to termination of parental rights for
parents of Indian children who have been adjudicated dependents
of the court. Specifically, this bill :
1)Defines "tribal customary adoption" as adoption by and through
tribal custom, traditions or law and specifies that termination
of parental rights is not required to effect the adoption.
Requires tribal customary adoption orders to describe the
modification of the relationship between the birth parents or
Indian custodian and child, including contact, if any, between
the birth parents or custodian and the child, the
responsibilities of the birth parents or custodian and the
child's rights of inheritance, as well as the child's legal
relationship to the tribe. Establishes a presumption that
parental rights or obligations not specified in the order vest
in the adoptive parents.
2)Specifies that individuals who may be, will be, or are adoptive
parents through a tribal customary adoption have all of the
rights and privileges given to other adoptive parents in the
state and that the prior consent of the birth parents or Indian
custodian is not necessary to establish a tribal customary
adoption.
3)Requires the tribe or its designee, as specified, to conduct an
adoptive home study prior to final approval of an adoptive
placement. Establishes the standard for evaluating the
adoptive home as the prevailing social and cultural standards
of the child's tribe. Requires the tribe or its designee to
conduct specified background checks to the extent required by
federal law as a condition of receiving Title IV-E funding.
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4)Authorizes the court to continue the selection and
implementation hearing for a period not to exceed 120 days to
permit the tribe to complete the tribal customary adoption
process and file an order to document its completion. Further
authorizes the court to grant a continuance if additional time
of up to 60 days is needed. Directs the court to make new
findings and orders if the customary adoption is not completed
during that time.
5)Requires that social workers or child advocates include
information in each social study or evaluation given to the
court on whether tribal customary adoption is an appropriate
permanent plan for an Indian child if reunification was not
successful. Requires that this information be provided in
consultation with the Indian child's tribe.
6)Specifies that if a court does not order family reunification
services, it shall, at the dispositional hearing, determine if
a hearing to terminate parental rights shall be set in order to
determine the most appropriate plan for the child, which could
include tribal customary adoption.
7)After the court has ordered that a hearing to terminate
parental rights be held, requires the assessment the agency
prepares to include a preliminary assessment of the eligibility
and commitment of a prospective tribal customary adoptive
parent. When tribal customary adoption is recommended, also
requires assessment to include the likelihood of adoption,
whether or not a customary adoption would be detrimental to the
child, and whether the Indian child cannot or should not be
returned to the home of the Indian parent or custodian.
8)Adds a tribal customary adoption order to the list of
compelling reasons for which a court may find that termination
of parental rights over an Indian child would not be in a
child's best interests. Specifies that a court shall not
terminate parental rights if the court has ordered a tribal
customary adoption.
9)At a hearing regarding the possible termination of parental
rights, adds tribal customary adoption, without termination of
parental rights, as an order the court may make. Prioritizes
this option behind the termination of parental rights and
placement of the child for adoption, and before the appointment
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of a relative guardian, establishment of a goal of adoption,
appointment of a nonrelative guardian and placement in
long-term foster care.
10)Requires the court to set an adoption hearing at which the
tribal customary adoption order shall be filed if the Indian
child's tribe has elected a permanent plan of tribal customary
adoption. Specifies that the court will, upon receipt of the
tribal order, afford the order full faith and credit to the
same extent as it applies to the public acts, records, judicial
proceedings, and judgments of other entities, and, upon a
determination that the order can be afforded full faith and
credit, thereafter issue an order of tribal customary adoption.
Requires the court to terminate its jurisdiction over an
Indian child after a tribal customary adoption has been
completed and the order of adoption has issued.
11)Allows a child otherwise eligible for the adoption assistance
program to receive those benefits if he or she is the subject
of a tribal customary adoption order.
12)Specifies that a tribal customary adoption has the same force
and effects as other adoption orders and that the rights and
obligations of all parties are binding. Prohibits a court from
ordering compliance with the tribal customary adoption order
unless the party seeking enforcement participated or attempted
to participate in good faith in family mediation services
through the court, or dispute resolution through the tribe,
prior to filing the enforcement action.
13)Exempts tribal customary adoptions from various provisions of
the Family Code applicable to adoptions generally, including
those related to birth parent consent, the minimum age
difference of 10 years between the child and prospective
adoptive parent and the requirement that a child over the age
of 12 years consent to the adoption.
14)Requires the Judicial Council to adopt, before July 1, 2010,
rules of court and forms to implement tribal customary adoption
as a permanent plan for dependent Indian children.
EXISTING LAW :
1)Governs, through the Indian Child Welfare Act (ICWA), specified
custody proceedings involving Indian children, including:
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a) Establishing jurisdictional requirements, and allowing
for notice of and intervention in Indian child custody
proceedings by a tribe. (25 U.S.C. Sections 1911, 1912,
1918, 1920.)
b) Providing that the acts, records and judicial proceedings
of tribal courts are entitled to full faith and credit to
the same extent that the acts, records or judicial
proceedings of another state would be. (25 U.S.C. Section
1911.)
c) Providing that an indigent parent or Indian custodian has
the right to court-appointed counsel. (25 U.S.C. Section
1912.)
d) Requiring that "active efforts" have been made, and have
failed, to prevent the breakup of the Indian family when a
party seeks a foster care placement, guardianship or
termination of parental rights. (25 U.S.C. Section 1912.)
e) Prohibiting a court from terminating parental rights
without proof beyond a reasonable doubt, or ordering foster
care or guardianship without clear and convincing evidence,
including the testimony of a qualified expert, that
continued custody by the child's parent or Indian custodian
is likely to result in serious emotional or physical damage
to the child. (25 U.S.C. Section 1912.)
f) Establishing placement preferences for Indian children
who are being placed in foster care or adoptive placements.
(25 U.S.C. Section 1915.)
g) Creating protections for a parent or Indian custodian who
voluntarily consents to foster care placement, guardianship
or termination of parental rights. (25 U.S.C. Section
1913.)
h) Requiring states to keep records of Indian child
placements and providing them to the Secretary of the
Interior and the child's tribe. (25 U.S.C. Sections 1915
and 1951.)
2)Makes application of ICWA in Indian child custody proceedings
mandatory. (Welfare & Institutions Code Section 360.6. Unless
stated otherwise, all further statutory references are to that
code.)
3)Allows the court in specified circumstances to hold a hearing
to permanently terminate parental rights. (Section 366.26.)
4)Provides two exceptions to termination of parental rights of a
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parent of an Indian child who has been declared a dependent of
the court:
a) Termination of parental rights would substantially
interfere with the child's connection to his or her tribal
community or the child's tribal membership rights.
b) The child's tribe has identified guardianship, long-term
foster care with a fit and willing relative, or another
planned permanent living arrangement for the child.
(Section 366.26(c)(1)(B)(vi).)
5)Affirms that it is in the interests of Indian children to have
their tribal membership and connection to the tribal community
encouraged and protected and that courts must take this into
consideration when determining the best interest of the Indian
child and recognize that the child's tribal membership or
eligibility for membership constitutes a significant political
affiliation with the tribe. (Section 224.)
6)Defines "Indian custodian" to be, as defined under ICWA, any
Indian person who has legal custody of an Indian child under
tribal law or custom or under state law or to whom temporary
physical care, custody, and control has been transferred by the
parent of such child. (Section 224.1.)
7)Requires the court, in any Indian child custody proceeding, to
give full faith and credit to the public acts, records,
judicial proceedings and judgments of any Indian tribe
applicable to the proceeding to the same extent that full faith
and credit is given to any other entity. (Section 224.5.)
COMMENTS : This bill, sponsored by the Soboba Band of Luiseno
Indians, establishes a process to allow Indian children in the
child welfare system to be provided with the permanence offered
by adoption without first terminating the birth parents rights
through the use of traditional or customary adoption. It is very
similar to last year's AB 2736 (Cook and Beall), which died on
the Senate inactive file. Write the authors:
For most tribes in the U.S., adoption has been
practiced within the tribe through tribal law, custom,
or tradition. However, TPR [termination of parental
rights] is totally contrary to many tribes' cultural
beliefs and it is, in fact, associated with some of
the most oppressive policies historically used against
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tribes and Indian people - for example, forced removal
of Indian children and Indian boarding schools . . . .
Further, TPR has cultural implications for the entire
tribal community, disrupting important cultural norms
of family structure, completely changing the
fundamental dynamics and familial order.
Additionally, this might affect the child's ability to
be a full member of the tribe, create barriers to full
participation in tribal life, and might prevent the
child from accessing services and benefits available
to tribal members.
Tribes, to avoid TPR when an Indian child cannot
reunify with birth parents, often advocate that the
Indian child remain in a permanent plan of
guardianship. However, guardianship does not offer
the permanency that adoption does, nor does it allow
for the supportive resources available to families
where there is TPR. Further, adoption assistance is
not available to families where there is a
guardianship.
The motivation for AB 1325 was borne out of the
tension between tribal cultural norms and existing
state law, which does not include a culturally
appropriate means of achieving permanency for
dependent Indian children. The experience of many
tribes and tribal families engaged in the dependency
system is that of being pressured to accept TPR and
adoption despite articulating fundamental opposition
to TPR. AB 1325 will allow Indian children and
families to realize the permanency and support of
adoption without the culturally offensive precursor of
TPR by providing "Customary Adoption" as an additional
option for permanency planning in ICWA cases.
In addition, the authors explain there is another distinct
disadvantage to a guardianship. Counties do not receive the same
reimbursement from the state and federal governments for
guardianships as they do for adoptions and, even though these
placements are permanent, counties are unable to report them to
the state and federal governments as completed cases.
Additionally, funding for guardianship placements is very
limited. While there are Kinship Guardianship Assistance Payment
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Program (Kin GAP) funds available to guardians, the funds are
significantly less than those provided to adoptive parents
through the Adoption Assistance Program (AAP).
The Indian Child Welfare Act : In response to reports that a
large percentage of Indian children were removed from their
families by courts and child welfare agencies and placed in
foster or adoptive homes and institutions, Congress enacted ICWA
in 1978. The goal of ICWA is to "protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families." (25 USC Section 1902.) In doing
so, Congress recognized that states "often failed to recognize
the essential tribal relations of Indian people and the cultural
and social standards prevailing in Indian communities and
families" and that the removal of Indian children was "often
unwarranted." (25 USC Section 1901.)
ICWA governs child welfare proceedings involving Indian children
who are subject to the jurisdiction of the dependency court
because of abuse or neglect or the risk of such harm. Among
other things, ICWA sets forth minimum federal standards by
establishing jurisdictional requirements; allowing for notice of
and intervention in Indian child custody proceedings by a tribe;
providing that the acts, records and judicial proceedings of
tribal courts are entitled to full faith and credit to the same
extent that the acts, records or judicial proceedings of another
state would be; and prohibiting a court from terminating parental
rights without proof beyond a reasonable doubt, or ordering
foster care or guardianship without clear and convincing
evidence, including the testimony of a qualified expert, that
continued custody by the child's parent or Indian custodian is
likely to result in serious emotional or physical damage to the
child. (25 USC Section 1911 et seq.)
Existing law recognizes exceptions to termination of parental
rights for Indian children . AB 678 (Ducheny), Chap. 838, Stats.
2006, created two exceptions to the termination of parental
rights for the parents of Indian children in the child welfare
system where the court could otherwise order such termination of
rights. The court can, if termination would be detrimental to
the Indian child, not order such termination if either of the
following is true: (1) Termination of parental rights would
substantially interfere with the child's connection to his or her
tribal community or the child's tribal membership rights; or (2)
the child's tribe has identified guardianship, long-term foster
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care with a fit and willing relative, or another planned
permanent living arrangement for the child. This bill creates,
in essence, another exception to termination of parental rights:
tribal customary adoption.
A Brief History of Customary Adoption : Historically, adoption
was practiced in most tribal communities - traditional or
customary adoption was the way that many Native American children
were cared for when their parents were unable or unwilling to do
so. There is no evidence, however, that the rights of birth
parents were terminated before such customary adoptions. Since
passage of the federal Adoption and Safe Families Act, which
creates strong incentives for achieving permanency for children
in the foster care system by, in appropriate cases, terminating
parental rights and arranging for adoption of children, many
tribes have had a renewed interest in customary adoption.
Committee staff is only aware of one state - Minnesota - that
specifically recognizes customary adoption performed by tribes
(without tribal courts) without termination of the birth parents'
rights. (Minn. Stat. 259.67 Subdiv. 4 (3)(ii).) The Minnesota
statute, however, is short on details and process.
Recent Changes in Federal Indian Child Welfare Laws : In October,
2008, Congress enacted one of the most significant pieces of
child welfare legislation in some time. Among its provisions,
the Fostering Connections to Success and Increasing Adoptions Act
(Fostering Connections Act, P.L. 110-351) authorizes Indian
tribes, under specified circumstances, to receive federal funds
to support the operation of child welfare programs directly. The
Fostering Connections Act also requires states to negotiate in
good faith with an Indian tribe, organization or consortium that
requests to develop an agreement with the state to administer all
or part of the child welfare program on behalf of Indian children
under authority of the tribe. 42 USC Section 671(a). AB 770
(Torres) was introduced this session to conform state law to
these requirements.
The bill establishes processes and procedures for tribal
customary adoption . The process begins after the court has
ordered that a hearing to terminate parental rights for an Indian
child be held. At that point, the child welfare agency must, in
their assessment, address the issue of tribal customary adoption
and whether it may be appropriate. When tribal customary
adoption is recommended, the child welfare agency assessment must
include the likelihood of adoption, whether or not a customary
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adoption would be detrimental to the child, and whether the
Indian child cannot or should not be returned to the home of the
Indian parent or custodian.
Under the bill, a tribal customary adoption order is added to the
list of compelling reasons for which a court may find that
termination of parental rights over an Indian child would not be
in a child's best interests. After that determination, the court
retains jurisdiction over the child, but the tribe completes the
adoptive home study and the tribe's designee performs the
background checks for all caregivers and adults living in the
prospective home. The bill specifies that the standard for
evaluation of the home study is the prevailing social and
cultural standards of the child's tribe. This is consistent with
ICWA. (See 25 USC Section 1915(b).)
The tribe is required, within 120 days, to file with the court a
tribal customary adoption order showing that the customary
adoption has been completed. The tribe may seek a continuance of
up to 60 days to finalize the order, which the court has
discretion to grant. If the tribe does not file the adoption
order with the court in the allotted time, the court shall make
new findings and orders to determine an alternative permanent
plan for the child. If the tribe submits an order, the court is
required to afford the order full faith and credit.
This bill represents the first time that children will have more
than two legal parents . California law recognizes that children
can have only two parents. While there have been academic
discussions about recognizing more than two legal parents, our
law has thus far not recognized more than two legal parents at
any one time. This bill, however, by recognizing a legal
adoption without termination of the birth parents' rights, would
allow for the existence of up to four parents - the birth parents
whose rights have not been terminated and the adoptive parents.
To make matters more complicated, these cases may also include an
Indian custodian.
To help resolve the myriad of legal confusions that could arise
from four parents with legal rights and responsibilities of
parenthood, this bill requires the adoption order to include (1)
the modification of the legal relationship between the birth
parents or Indian custodian and the child, including contact,
responsibilities of the birth parents or Indian custodian, and
rights of inheritance of the child; and (2) the child's legal
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relationship with the tribe. There is a conclusive presumption
that any rights or obligations not specified in the tribal
customary adoption order vest in the adoptive parents.
New Child Support Obligations for Birth Parents and the Indian
Custodian : As currently in print, the bill allows a tribe to
require birth parents, who have not had their rights terminated,
but may still have no other substantive rights of a parent, and
an Indian custodian, who no longer has responsibility for the
child, to maintain ongoing child support obligations, even though
the child has been adopted through customary adoption. There are
several concerns with this proposal. Firstly, this bill allows a
tribe to cut off all a birth parent's rights to a child, but
still require ongoing payment of child support. If the court had
terminated parental rights, the parent would have no rights to
the child, but would also have no ongoing obligation to support
the child. While it is difficult to imagine that receipt of
extra child support could harm the child, it is likely to be seen
as extremely unjust to birth parents, which will be compounded if
the birth parents perceived the tribal process for establishing
the adoption order as lacking in process or fairness.
Secondly, this bill allows a tribe to make an Indian custodian
liable for support of a child no longer residing with that Indian
custodian. An Indian custodian is defined as any Indian person
who has legal custody of an Indian child under tribal law or
custom or under state law or to whom temporary physical care,
custody, and control has been transferred by the parent of such
child. However, in the case of customary adoption, the Indian
custodian would likely not have custody of the child - the
adoptive parents would - but might instead, under the terms of
the bill, be left - for the very first time under California -
with an on-going child support obligation.
Given these significant concerns, the authors have agreed to
prevent a tribe from requiring child support from either the
birth parents or the Indian custodian for a child adopted through
customary adoption.
This bill poses unique jurisdictional considerations for the
court and the tribe . California law also allows a dependency
court, in specified cases, to dismiss a proceeding or terminate
jurisdiction and transfer the case to a tribal court. (Section
305.5.) However, most tribes in California do not have tribal
courts. Under ICWA, states must afford full faith and credit to
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tribal acts, records, and judicial proceedings to the same extent
that the acts, records, or judicial proceedings of another state
would be granted full faith and credit. Full faith and credit
does not, however, require the court to apply the law of the
tribe in violation of the legitimate public policy of the state.
( See In re Laura F. et al. v. Tulare County Health and Human
Services Agency, (2000) 83 Cal.App.4th 583; see also In re
Marriage of Maria and Randy Jacobsen, (2004) 121 Cal.App.4th
1187.) In the case of juvenile dependency proceedings, the
state's primary objective is to ensure that court orders are in
the best interests of the dependent child.
As proposed to be amended by the authors, this bill would make
very clear that the court is only required to enter the tribal
adoption order if the order comports with full faith and credit.
Thus, if the order violates the legitimate public policy of the
state, the court is not required to enter the order. Under that
standard, a court would not be required to enter an order that it
determined was not in the best interests of a dependent child
under the court's jurisdiction. In all other cases, however, the
dependency court would be required to enter the tribal adoption
order, provided that it complied with the requirements of this
bill.
Given that the significant changes proposed by this bill
represent uncharted territory, the authors have agreed to a
sunset for the bill, with a report due to the Legislature . The
bill charts significantly new territory for California law by
creating more than two legal parents for a child. The
recognition of more than two legal parents (potentially four and
perhaps an Indian custodian) will raise unique and previously
unexplored issues that cannot be fully considered without some
experience in the area. As a result, the authors have rightly
agreed to a four-year sunset to the bill and requiring a report
from the Judicial Council, three years after the bill has been in
operation, on how the bill is being implemented, examining, in
particular, the best interests of the child and the rights and
obligations of all parents and the Indian custodian. The report
should help the Legislature determine how customary adoption is
working, whether it requires any legislative changes and whether
it should be extended indefinitely.
ARGUMENTS IN SUPPORT : In support of the bill, the tribes write:
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Currently, California law requires the legal
termination of parental rights, severing all legal
relationships between the Indian child and his/her
parents, in order that an Indian child achieves the
permanency of adoption. The legal severing of
parental rights is viewed by many tribes as
inconsistent with tribal custom and tradition, as it
destroys the family order and negatively impacts
family and tribal structure. It may also have
long-term implications affecting future generations
where familial relationships have been disturbed.
AB 1325 provides Tribes with a culturally appropriate
option for their children, who, for whatever reason,
are not in the care of their birth parents.
ARGUMENTS IN OPPOSITION : The Family Law Section of the State Bar
is opposed to this bill unless amended to make very clear that
the final authority in these cases rests with the California
courts. Specifically, they suggest an amendment to state that
the court shall grant the tribal order full faith and credit and
thereafter issue an order, "unless the court finds by clear and
convincing evidence that issuance of the order would be
detrimental to the child." However, given the amendment already
agreed to by the authors, it is clear that the dependency court
has the ultimate authority to determine whether to afford the
tribal adoption order full faith and credit, and thus the
ultimate authority on whether or not to enter the order,
consistent with full faith and credit.
Proposed Author's Amendments :
1. On page 38, line 22, after the period, insert: The order
shall not include any child support obligation from the birth
parents or Indian custodian.
2. On page 39, line 5, after the period, insert: The Judicial
Council shall study California's tribal customary adoption
provisions and their affects on children, birth parents, adoptive
parents, Indian custodians, tribes, and the court, and shall
report all of its findings to the Legislature on or before
January 1, 2013.
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3. On page 49, delete lines 27 and 28 and insert:
entity, and upon a determination that the tribal customary
adoption order may be afforded full faith and credit, consistent
with Section 224.5, the court shall thereafter issue an order of
adoption consistent with Section 366.24.
4. Sunset the bill as of January 1, 2014
REGISTERED SUPPORT / OPPOSITION :
Support
California State Association of Counties
California Valley Miwok Tribe
California Welfare Directors Association (CWDA)
County Welfare Directors Association of California
Elem Indian Colony of Pomo Indians
Habematolel Pomo of Upper Lake
Iipay Nation of Santa Ysabel
Los Coyotes Band of Indians
Kashia Band of Pomo Indians
Middletown Rancheria Band of Pomo Indians
Morongo Band of Mission Indians
North Fork Rancheria of Mono Indian of California
Pechanga Band of Luse?o Mission Indians
Pinoleville Pomo Nation
Ramona Band of Cahuilla Indians
Redding Rancheria
Robinson Racheria Band of Pomo Indians
Rincon Band of Luiseno Indians
San Pasqual Band of Mission Indians
One individual
Opposition
Family Law Section of the State Bar (unless amended)
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334