Tribal clash stalls CEQA consultation reform bill

An intense dispute between federally- and non-federally recognized California Native American tribes over a bill intended to give tribal governments more control over development that encroaches on their sacred lands has convinced the author to pause the measure.

After significant negotiations over the last few weeks failed to bring the opponents together, Assembly Majority Leader Cecilia Aguiar-Curry (D-Winters) turned her proposal, AB 52, into a two-year bill to allow the two sides time to come closer together.

The bill – sponsored by the Pechanga Band of Luiseño Indians, Federated Indians of Graton Rancheria, and Habematolel Pomo of Upper Lake – attempts to address a problem that has long plagued California’s Native American tribes: lead agencies under the California Environmental Quality Act who rely on the expertise of outsiders instead of the tribes when negotiating access to Tribal Cultural Resources (TCR).

It is not the first effort to codify the tribes’ primacy in such circumstances. In 2012, then-Assemblymember Mike Gatto authored another AB 52, which requires lead agencies to consult with Native American tribes in such situations.

That bill was signed into law in 2014, and other measures have since followed to augment the statute. But Aguiar-Curry’s office says it has not work out as planned. In a fact sheet for the original version, they said AB 52 had been “grossly misunderstood” by lead agencies, local governments and developers, and that lead agencies have further “allowed archaeologists and consultants to control the identification of TCRs while dismissing critical Tribal heritage information.”

Aguiar-Curry says she introduced this year’s AB 52 to not only clarify that tribal governments are the primary authorities of their own cultural heritage but also to assert that tribal expertise must take precedence in the CEQA process over archaeologists and other outside sources.

But her proposal almost immediately ran into problems of its own. Some California tribes contend that the bill’s language only protects the federally recognized tribes while diminishing the rights of non-federally recognized communities, some of which nonetheless appear on the contact list of the California Native American Heritage Commission.

“This amendment [to 2014’s AB 52] is disheartening. It’s an atrocity,” said Andrew Salas, hereditary chief of the Gabrieleño Band of Mission Indians–Kizh Nation, a non-federally recognized tribe based in Los Angeles County.

Aguiar-Curry says she introduced this year’s AB 52 to not only clarify that tribal governments are the primary authorities of their own cultural heritage but also to assert that tribal expertise must take precedence in the CEQA process over archaeologists and other outside sources.

Salas said outside archaeologists certainly shouldn’t be dictating what tribes should do with their land, but both types of tribes should be treated equally under CEQA.

He also expresses doubt that the bill is actually about the pervasive land-use protocol, arguing it is really an under-the-radar attempt by federally recognized tribes to seize control over ancestorial lands of non-federally recognized tribes.

“The federally recognized tribes never want to see the non-federally recognized tribes coming up,” Salas said.

Salas’s tribe is actively seeking federal recognition, which would open the door for it to build a casino in the L.A. Basin. He says that is not their intent for seeking federal recognition, but believes California’s gaming tribes are worried that if it does happen it could create competition they do not want to face.

He is not the only one who thinks that. Nathan Banda, chairman of the Juaneño Band of Mission Indians, a non-federally recognized tribe in Orange County, said his tribe has been seeking federal recognition for 40 years, but its efforts have been opposed by federally recognized tribes concerned that Juaneño could built a casino in a more desirable part of the state that would take business away from their existing casinos.

“I know these tribes are scared and worried we’ll gain federal recognition,” Banda said.

But the opponents contend their opposition also runs deeper, pointing to bill language they say will make them subordinate to federally recognized tribes.

“One of consequences of the bill is federally recognized tribes would have deference to manage tribal resources in the ancestorial lands of unrecognized tribes,” said Jonathan Cordero, chairman of the Ramaytush Tribe, a non-federally recognized tribe that’s primarily tied to San Francisco and San Mateo county.

Federally recognized tribes having control over the resources and cultural artifacts of non-recognized tribes has been another longstanding issue between the two entities.

Another member of the Juaneño Band posted a petition on Change.org urging the legislature and Gov. Gavin Newsom to oppose AB 52, saying it “creates a discriminatory two-tiered system that prioritizes federally recognized tribes while relegating non-federally recognized tribes to merely ‘participating’ in consultations.” More than 900 people have signed it.

“It’s crazy we have to fight our own,” said Banda.

Meanwhile, Pechanga tribal chairman Mark Macarro praised the bill in a statement to Capitol Weekly written prior to AB 52 being converted to a two-year bill.

“This vital legislation strengthens California’s commitment to protecting Native American sacred places, tribal cultural resources, and Ancestral remains by enhancing consultation processes under CEQA,” he said, adding it would provide “long-overdue clarity to ensure meaningful, government-to-government consultation with tribes, and affirms that tribal knowledge and expertise guide the identification, preservation, and treatment of culturally significant sites for federally and non-federally recognized tribes.”

Macarro further noted what he called “a lot of misinformation” around the bill, but expressed confidence “that ongoing dialogue will continue to clarify intentions and address concerns.”

That sentiment was echoed in a new statement issued by Pechanga and the Federated Indians of Graton Resort & Casino to Capitol Weekly shortly after the bill was converted in which the two tribes expressed their support for slowing down the bill’s movement.

“We fully support Assemblymember Curry’s decision to make AB 52 a two-year bill,” it said, adding it would give them time to “engage more deeply with stakeholders, refine the bill language, and build broader consensus” while strengthening tribal sovereignty and “working in good faith to address legitimate concerns” around the issue.

“AB 52 is a Tribal Cultural Resources protection bill, not a bill about the status of California Native American Tribes.”

But the statement also seemed to indicate the federally recognized tribes are not quite ready to cede too much ground to non-recognized tribes.

“Tribal cultural resources and the recognition of tribes as distinct political entities are fundamental pillars of our tribal sovereignty,” it said. “It is critical that this bill protect and reaffirm the sovereignty and government-to-government relationship between the State of California and federally recognized tribes. We look forward to continuing this important work in partnership with the Legislature, tribal leaders, and all stakeholders.”

Aguiar-Curry is also trying to smooth the waters a bit, saying in her own statement on Sunday in announcing the bill’s conversion that despite the progress made in Gatto’s AB 52 and subsequent measures, “gaps in implementation have weakened TCR protections, with non-tribal consultants and archaeologists often overriding tribal input. This has led to a rise in costly lawsuits and the continued threats to sacred lands and burial sites.”

With that in mind, she says “AB 52 aims to correct these issues by requiring agencies to incorporate tribal expertise and cultural knowledge into the CEQA process and decisions; strengthening protocols for unexpected discoveries of TCRs during development; affirming the inclusion of both federally recognized and non-federally recognized tribes in consultation processes, aligning state practices more closely with federal protections; and reducing legal conflicts by ensuring meaningful, early consultation.”

Doing that, she said, is best accomplished without the pressure of current committee deadlines. And perhaps with an eye toward future negotiations, she emphasized her intention to protect tribal rights, not future gaming possibilities.

“AB 52 is a Tribal Cultural Resources protection bill, not a bill about the status of California Native American Tribes,” she said.