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Calif. Sacred Sites Bill Would Boost Protections but Exclude Some 50 Tribes

Assembly Bill 52 would bolster the tribal consultation requirements for specific development projects, but only for federally recognized tribes.

About an hour north of San Diego near the Pacific Coast, Panhe is an ancient village site where the Acjachemen Nation still gather to hold ceremonies, share stories and walk among trees brimming with the voices and histories of their ancestors.

The creation area of the Pechanga Band of Luiseño Indians is where, according to tribal oral tradition, “Earth and Sky came together to form the world”, and tribal officials have said it’s the spiritual equivalent of the Luiseño Wailing Wall or Dome of the Rock.

Both tribes have recently staved off development projects that threatened to desecrate these places, but only one of them would benefit from a bill circulating in the California state legislature that would boost protections of sacred sites and amplify the voices of tribes in the state’s environmental regulatory process. But because the Acjachemen are, like nearly 50 California tribes, federally unrecognized, the bill would not apply to them.

Assembly Bill 52 would clarify and bolster the tribal consultation requirements for specific development projects under the California Environmental Quality Act (CEQA). It would lift federally recognized tribal nations to the same status as other government entities and require developers to consider the modern day cultural and spiritual value of sacred sites rather than simply the amount of archaeological artifacts in the area.

“The premise that one culture’s sacred sites and historical landmarks aren’t given the same value as another culture basically amounts to cultural imperialism,” said Assemblyman Mike Gatto. “California has the most tribes in the nation, and we need to treat these areas with the dignity and respect they deserve.”

AP Photo/Rich Pedroncelli, File

In this June 10, 2010 file photo, California Assemblyman Mike Gatto talks after his swearing in at the Assembly at the Capitol in Sacramento, California.

However, many tribal officials are concerned that the bill narrowly defines California Indians as members of federally recognized tribes when the California Native American Heritage’s consultation list, which is used by state agencies, currently includes about four dozen historical California tribes that currently don’t have federal recognition.

Many anthropologists, researchers and tribal officials have long argued that the Bureau of Indian Affairs’ recognition criteria are especially harsh and historically blind toward California tribes, who are not far removed from the chaos of the Gold Rush genocide and have a history of landlessness due to 18 unratified treaties that left many without reservations. In 1997, the Advisory Council on California Indian Policy, which was created at the direction of Congress, recommended the BIA use a distinct definition for California tribes due to the state’s unique history and expedite the cases of unacknowledged tribes.

“An amendment of CEQA that would recognize the importance of tribal nations and our sacred sites is a great step forward, but the current version is a problem. By redefining California tribes as only the federally recognized ones, we believe it would be an act of legislative genocide,” said Angela Mooney D’Arcy, executive director of the Sacred Places Institute for Indigenous Peoples. “It sets a dangerous precedent that future state laws may exclude us as well.”

The California legislature’s first foray into sacred sites protection law was Senate Bill 18, passed in 2004, which required government agencies to consult with tribes while developing general plans for their communities. California Indians are defined in S.B. 18 as members of federally and non-federally recognized tribes on the heritage commission’s list.

Mooney D’Arcy is also a member of the Acjachemen Nation, which was able to partner with the heritage commission and use state regulations in order to stop a proposed toll road that would have passed just feet from Panhe and drastically interfered with ceremonies and traditional practices.

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She and other tribal officials said they feared that once this more limited definition of California Indians is codified in one place, it will become the standard.

Morning Star Gali, Tribal Historic Preservation Officer for the federally recognized Pit River Tribe in Northern California said they may pull their support for the bill if the definition isn’t expanded.
“It’s concerning that the entire definition of tribes is at stake,” she said. “If the state is going to do this, they need to bring all the tribes to the table. It can’t just be done by a handful of individuals who are pushing personal agendas.”

Gatto said that his office has consulted with numerous gaming and non-gaming tribes, and the issue of federally unrecognized tribes has only been brought up recently. He and his staff will be examining whether they can re-write the bill to be more “inclusive,” but he said that federally recognized tribes seem to best fit the CEQA trustee status that is currently bestowed upon cities, counties and local municipalities.

According to Maplight, a nonpartisan research website, Gatto has received $73,100 in campaign donations from gaming tribes, including $3,900 from Pechanga, and it is their tribal attorney, Laura Miranda, who has served as a technical advisor to Gatto on the creation of the bill, she said.

Miranda was also recently named as the vice chairperson of the heritage commission, and she said using federally recognized tribes as the tribal definition was consistent with current law.

“It’s really a question of ‘Who are they?’ They want to make sure they know who the tribes are that they consult with, and that it’s mirroring the intent of CEQA,” she said.

The bill will help ensure that tribes are included at the beginning of project development and that tribal sources are considered experts on their own cultural resources, Miranda said.

Unrecognized tribes will still benefit in some ways from the bill, and can always ask the closest recognized tribe to “go to bat for them,” she said. “A lot of agencies are not good at involving tribes period, and this would put tribes on the radar screen,” she said.

Other tribal officials disputed the notion that other California laws use anything but the heritage commission’s list, and D’Arcy Mooney pointed to Gov. Jerry Brown’s 2010 Executive Order on tribal consultations, which included “other California Native Americans” as well as federally recognize tribes.

Some tribal officials also said they felt the bill continued an ongoing pattern of state agencies and elected officials neglecting their consultation duties. For instance, when Brown announced his emergency drought measures would include a suspension of some parts of CEQA, many tribal officials were outraged they were not notified ahead of time as it could affect tribal lands and waterways.

“Some of these agencies are putting on a good front and trying to put up some effort to be in good standing with tribes,” Gali said. “But then when they make a backdoor deal with the governor to suspend CEQA, it doesn’t show they’re sincere in their relationships with tribal governments.”

Gatto said the bill still has to go through the state Senate, and maybe have some amendments before it’s put up for a final vote, possibly some time this summer.

On the issue of recognition, he said, “We don’t want to exclude anyone who was here Pre-Columbus time, but things are tough as we try to wrestle with how this will work.”