SACRAMENTO, Calif. - Lost in the shadows of recent news regarding tribal
compacts and other legislation, the California Senate voted 68 - 4 in favor
of legislation that would require developers and landowners to consult with
tribes early in the planning process for proposed developments. Other than
a few formalities, the legislation is headed to Gov. Arnold
Schwarzenegger's desk for dismissal or approval.
"This was a long-fought bill, and I am proud to have worked alongside so
many California tribes to help protect vitally important sacred sites. I
encourage Gov. Schwarzenegger to sign this bill," said Senate President.
Pro Tern and the bill's author Sen. John Burton, D-San Francisco.
Four Republicans voted against the bill including Sen. Roy Ashburn, Sen.
Samuel Aanestad, Sen. Bill Morrow and Sen. Ross Johnson. Calls to all four
opponents' offices were not returned though press reports indicate that
they were concerned with private property rights.
This is the second go-round for this bill, which is known by its
legislative moniker SB 18. It was killed in the legislature last year after
active opposition from the state's powerful business lobby took opposition
to that bill. The primary difference between last year's version of the
bill and this year's is that it does not give authority to the California
Native American Heritage Commission to define sacred and other
However, the commission still retains the right to decide which existing
federally or non-federally recognized tribe would be the appropriate
contact for each specific development project.
Also, the latest version of the bill also does not require that California
Indian sacred sites be part of the California Environmental Quality Act
(CEQUA), a standard series of assessments that developers must go through
before they can receive approval for proposed projects.
The first version of the bill, introduced in 2002, originally stipulated
that the CEQUA process include the Native American Heritage Commission as
the lead agency in defining sacred sites. Opponents claimed that this would
cause undue harm for business and gave too broad a stroke to the commission
to define sacred and other culturally-sensitive sites.
Generally speaking tribes do not think of this legislation as ideal though
they have backed this legislation and hail it as an important first step.
One of the groups that has backed the legislation is the California Nations
Indian Gaming Association (CNIGA) who issued a press statement after the
"This bill by no means addresses all our concerns but developing a system
whereby tribes and local governments more closely communicate with one
another to identify sacred sites at the earliest possible stage is a
critical first step," said Anthony Miranda, chairman of CNIGA.
Despite being less than ideal, tribal sources still say that the bill is an
important recognition of tribal interests which they feel have been
relegated to the back seat for the past century and a half in the Golden
The bill also sets forth no new penalties for the unlawful destruction of
artifacts and other kinds of materials unearthed at development sites; and
only insists that local governments enforce existing laws.
How such consultation will take place is not clear. The only thing that the
bill seems to require is that a consultation must take place early in the
development process but does not make any concerns made by tribes binding
other than the enforcement of existing laws. It assumes that this
consultation alone will determine in the proper level of discretion and
mitigation but does not necessarily require that tribal recommendations be
Schwarzenegger's office would not comment on whether the governor would
sign it or not, but the Sacramento Bee cites a "Republican analysis,"
presumably of the bill, as indicating that the governor is content with the
bill in its current form.
Last year's bill was not the only one that addressed tribal sacred sites.
Another bill, known as AB 974 which passed the state Assembly sought to
protect American Indian sacred sites as well as general archaeological or
paleontological sites along the state's coastal zone. That bill failed in
the Senate earlier this year though it garnered more yes votes than no but
failed to make the threshold of votes needed to pass. It is currently
inactive and its future is uncertain.