By Michelle LaPena
Some people are surprised to find out that there are 110 federally recognized tribes in California, and over 100 separate reservations or Rancherias. California’s Indigenous tribes have lived in their traditional territories since before recorded history and they have deep connections to the areas they inhabit. Archaeological data has confirmed that California Indians have lived in California for at least 15,000 years. But tribal people believe that they were created here and never migrated here from across a land bridge.
Historically, the US government and the California state government have not respected Native American tribal sovereignty, which is the idea that indigenous tribes have inherent authority to govern themselves within the border of the United States. Tribes have sued government entities, held protests, and garnered media attention when unwanted development has encroached on their land or sacred sites.
In recent years, California has made some progress toward protecting and respecting tribal cultural resources. Exemptions and protections are now woven into various California laws and allow Native Americans the opportunity to safeguard their tribal cultural resources.
In 2018, I noticed a law that was passed in 2017 SB 35 (Senator Scott Wiener was the author), which fast-tracked approval processes for low-income housing projects. Under existing law, a number of lands are exempted from this streamlined development process, including historic structures, wetlands, and hazardous waste sites. However, tribal cultural resources were not included in the original bill’s list of exemptions, and therefore, are not protected. I reached out to Assemblywoman Cecelia Aguilar-Curry to carry a bill to fix this apparent oversight and she sponsored AB 168.
Tribal cultural resources are sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe. Sacred sites may be burial grounds, important archaeological areas, or religious objects.[1] This article will briefly describe the history of cultural resource protection in California and explain why the amendments contained in AB 168 are so important to Indian Country.
1976 AB 4239 - Creation of the NAHC
NAHC’s primary duties were to include the following:
Although this was a beginning, the NAHC was never provided an adequate budget and with insufficient site protections since 1979, the focused of tribes later shifted toward early consultation and better definitions.
SB 18 (Burton, 2004) - General Planning
Senate Bill 18 was signed into law in September of 2004 with the main provisions taking effect on March 1, 2005. SB 18 did three main things: 1) it added 3 new sections to the State planning laws to require tribal consultation during the general planning process; 2) it amended 5 sections of the Government Code to require notice to California Native American Tribes (as defined in the law) during the general planning process and established a process for tribal consultation; and 3) it amended the Civil Code to authorize California Native American Tribes to hold conservation easements under state law.
SB 18 requires cities and counties to contact, and consult with, “California Native American Tribes before adopting or amending a General Plan, or when designating land as Open-Space, for the purpose of protecting Native American Cultural Places. Importantly, it established a new definition of “Consultation” in state law. “Consultation means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values, and where feasible, seeking agreement. Consultation between government agencies and Tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation shall also recognize the tribes’ potential needs for confidentiality with respect to places that have traditional tribal cultural significance.” Cal. Gov’t Code 65352.4.
Governor Brown Executive Order B-10-11 (2011)- State Agency Consultations
In September 2011 Edmund G. Brown, Jr. signed Executive Order B-10-11, declaring that the “State of California recognizes and reaffirms the inherent right of these Tribes to exercise sovereign authority over their members an territory” and that the “State is committed to strengthening and sustaining effective government-to-government relationships between the State and Tribes by identifying areas of mutual concern and working to develop partnerships and consensus.”
The EO also established a new cabinet position in the Governor’s Office called the Tribal Advisor”. The Governor’s Tribal Advisor meets regularly with the elected officials of California Indian Tribes to discuss state policies that may affect California tribal communities, serve as a direct link between the Tribes and the Governor of the State of California, facilitate communication and consultations between the Tribes, the Office of the Governor, state agencies, and agency tribal liaisons, and review state legislation and regulations affecting Tribes and make recommendations on these proposals.
With the enactment of Executive Order B-10-11, California Indian Tribes finally had a new way to address the state regarding issues within each of their tribal communities and the ability to change outdated regulations for the betterment of their tribal communities.
AB 52 (Gatto, 2014) – CEQA
With a Tribal Advisor in place and increased funding being made available to the NAHC, tribes sought to fills the gaps left with SB 18. AB 52 made the following improvements to California law:
While AB 52 went a long way to closing gaps in protection for traditional tribal cultural places, it still needs improvement. However, new low- income housing streamlining bills, such as SB 35, completely ignore the protections of AB 52 and will allow low-income housing project approvals to be streamlined and could result in the destruction of burial grounds, sacred sites, village sites and other places of traditional importance to California’s indigenous people.
AB 168 is intended to close the loophole in SB 135 and to allow for the protections in AB 52 to be followed if a proposed development could impact traditional tribal cultural places. For those who have a hard time understanding what this means, I like to remind them of the movie Poltergeist. While it is a fictional story, the fact
remains that many suburban and urban housing developments have been dug into Native American burial grounds because there was so little protection in the law as the state grew in population density after colonization. I ask you to support AB 168 so that we can hopefully prevent
this from happening ever again.
AB 168- Fast Facts
[1] CA Public Resource Code Section 5097.9 Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine.
Public Resource Code Section 5097.995 Native American historic, cultural, or sacred site, that is listed or may be eligible for listing in the California Register of Historic Resources pursuant to Section 5024.1, including any historic or prehistoric ruins, any burial ground, any archaeological or historic site.
Michelle LaPena is experienced in a wide variety of tribal legal matters including cultural resource protection, Indian child welfare, tribal taxation, tribal gaming regulation, tribal governance, the fee to trust process and real estate transactions, and general civil litigation involving tribal governments.