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March 21, 2014

Assemblyman Mike Gatto P.O. Box 94289 Sacramento, CA 94249-0043 300 East Magnolia Boulevard Suite 504 Burbank, CA 91502 Re:

AB-52 Native Americans: California Environmental Quality Act and Re-definition of the Term “California Native American Tribe”

Dear Assemblyman Mike Gatto: Thank you for your commitment to respecting the sacred places and cultural resources of Tribal Nations and Indigenous Peoples in California and your support for legislation that will “treat these areas with the dignity and respect that they deserve.”1 Sacred Places Institute for Indigenous Peoples (SPI) is an Indigenous-led, Los Angeles-based organization that works to build the capacity of Tribal Nations and Indigenous Peoples to protect sacred lands, waters, and cultures. Our board, staff and volunteers come from federally recognized and nonrecognized Tribes throughout California and the United States and have collectively been working with California Indian Nations to protect cultural and natural resources for decades. We work with California Tribes and Native American organizations throughout the state and around the country to make sure that the concerns of Indigenous peoples and Tribal Nations are voiced and addressed in issues about our environmental and cultural resources. While Sacred Places Institute for Indigenous Peoples whole-heartedly supports the overall purpose and goals of AB 52, we strenuously object to this or any legislative attempts to redefine or limit the definition of the term “Native American Tribe” in any manner that excludes non-recognized Tribal Nations in California. Excluding non-recognized tribes in this way is not only an affront to tribal sovereignty it also virtually guarantees that the sacred places and cultural resources of non-recognized Tribal Nations in California will be destroyed at an unprecedented rate in the future. Surely the destruction of Indigenous sacred places and cultural resources is not the future you envision for a California that is treating Native American sacred places with dignity and respect. 1

Dadigan, Marc, California Sacred Sites Bill Would Boost Protections but Exclude Some 50 Tribes, Indian Country Today Media Network, March 6, 2014, available at http://indiancountrytodaymedianetwork.com/2014/03/06/calif-sacred-sites-bill-would-boost-protections-excludesome-50-tribes-153850?page=0%2C1

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The situation of Indians in California is unique due to several factors including—multiple aggressor nations acting against the interests of California Indian communities, state-sanctioned acts of genocide against California Indian people, state-sanctioned enslavement and indentured servitude of California Indians, failure of the U.S. Congress to ratify eighteen treaties with California Indian Nations, and the termination of over forty Tribes in California by 1958. For example, see Murder State: California’s Native American Genocide 1846-1873 The years 1846 to 1873 saw the creation, through the democratic processes and institutions of the people of the United States, of a culture organized around the dispossession and murder of California Indians. This paradoxical, democratically imposed system naturalized atrocity against Indian peoples and led to their near eradication by 1900, an extinction avoided in large part by Native Americans’ own strategies of resistance and noncooperation.—Brendan C. Lindsay, Introduction2 Given the unique history of all California Indians, regardless of status as recognized or non-recognized, it is imperative that any attempt at legislative redress included all impacted Tribes in California not just federally recognized Tribes. Numerous state and federal agencies, committees, and reports articulate the importance of including non-recognized Tribes in California in the creation and implementation of legislative and agency policies and procedures, especially when those laws, policies and procedures are related to the protection of Native American cultural and environmental resources. To create new legislation that directly conflicts with the well-established rule of inclusion for nonrecognized Tribes in California state cultural resource protection law is neither in the best interest of, nor respectful of, Indigenous sacred places and cultural resources in California. The Advisory Council on California Indian Policy (ACCIP) was established by Congressional Act in 1992. The Council was directed to make recommendations to Congress to “address the special status problems of California’s terminated and unacknowledged tribes…”3 The final reports are elucidating regarding the issue of limiting the definition of “tribe” in California to federally recognized Tribes only. For example, see the ACCIP Historical Overview Report on the Special Circumstances of California Indians4 “The history of Native California’s first contact with non-Indians and the resultant collision of cultures that occurred at each contact also varies from the history of the rest

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Lindsay, Brendan C., Murder State: California’s Native American Genocide 1846-1873, University of Nebraska, 2012. 3 Advisory Council on California Indian Policy, Final Reports and Recommendations to the Congress of the United States Pursuant to Public Law 102-416, September 1997, available at file:///C:/Users/c655s5504/Desktop/ACCIP%20Final%20Report%20to%20Congress%20Executive%20Summary.pdf 4 Advisory Council on California Indian Policy, THE ACCIP Historical Overview Report: The Special Circumstances of California Indians, September 1997.

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of Native America... Unlike other regions of the Country, California’s late settlement included a direct policy of extermination.” [Emphasis added] Unacknowledged California tribes share aspects of both the reservation and urban Indian worlds. While they are indigenous California tribes their lack of a land base and their unacknowledged status often force them into urban centers where jobs and services are more readily available than on reservations where they have no membership or rights. The tribal status problems of California’s unacknowledged tribes remain one of the great inequities of federal-Indian relations in California. Until these status issues are resolved through definitive congressional or federal executive action, these indigenous peoples will be denied their rightful place in native California life, and the historic injustices of federal-Indian relations in California will be perpetuated. [Emphasis added] Or consider the language in the ACCIP Report on California Indian Cultural Preservation5 California has a unique history, including the experience with unratified treaties and the California Land Claims cases, which established that ‘unrecognized’ aboriginal Indians in California are identifiably Indian and are legally and morally entitled to religious and cultural rights and protections.[Emphasis added] The violent and dishonorable treatment of California Indians—as reflected in federal law, policy and practice—as resulted in large numbers of landless, widely dispersed Indians. This calls for the development of innovative, community based approaches. The ACCIP Report also recommended: 1. For California Indians not affiliated with a ‘recognized’ tribe listed pursuant to 25 C.F.R. Part 83, it is recommended that Congress (a) facilitate immediate Part 83 recognition for petitioning California tribal groups and (b) strengthen service delivery for California Indian people by adopting a legislative definition of ‘California Indian to clarify that all California Indians, as defined in Recommendation 4 of the ACCIP Recognition Report, are subject to federal laws passed for the purpose of protecting American Indian cultures and cultural resources. As Congress has recognized by enacting cultural protection legislation, there is a compelling need to preserve Indian families and cultural and religious practices. California Indians, even those not affiliated with a Part 83 tribe, should benefit from the cultural protection legislation already enacted by Congress, including the Indian Child Welfare Act and laws protecting the practice of Indian religions. [Emphasis added]

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ACCIP, Report on California Indian Cultural Preservation, September 1997.

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Or see the 2009 Cal/EPA Policy Memorandum for Working with California Tribes6 California Indian Tribe: A federally-recognized California Indian Tribe (as listed on the Federal Register). With respect to cultural resources, a federally-recognized Indian Tribe and a non-federally recognized California Native American Tribe that is on the California Tribal Consultation List maintained by the Native American Heritage Commission (NAHC). [Emphasis added] Or see Governor Brown’s EXECUTIVE ORDER B-10-117 •

ORDERED that the Governor’s Tribal Advisor shall oversee and implement effective government-to-government consultation between my Administration and Tribes on policies that affect California tribal communities.

For purposes of this Order, the terms “Tribe,” “California Indian Tribe”, and “tribal” include all Federally Recognized Tribes and other California Native Americans. [Emphasis added]

California Natural Resource Agency Tribal Consultation Policy, Adopted November 20, 2012 “California Native American Tribes and tribal communities have sovereign authority over their members and territory and a unique relationship with California’s resources. All California Tribes and tribal communities, whether federally recognized or not, have distinct cultural, spiritual, environmental, economic and public health interests and unique traditional cultural knowledge about California resources.” [Emphasis added] And; “It is only by engaging in open, inclusive and regular communication efforts that the interests of California Tribes and tribal communities will be recognized and understood in the context of complex decision-making.” Or see the University of California, Los Angeles, American Indian Studies Center report on the Status and Needs of Unrecognized and Terminated California Tribes8 “More than fifty–five tribes in California remain unrecognized by the federal government. In addition, twelve tribes were terminated during the period of the 1950s–1960s and have not been restored. Over 80,000 individuals are affected. This is the largest group of unrecognized tribal groups and individuals of any state in the United States. The federal government's failure to recognize these groups perpetuates 6

California Environmental Protection Agency, CIT-09-01, Policy Memorandum: Cal/EPA Policy for Working with California Indian Tribes, October 2009, available at http://www.calepa.ca.gov/tribal/Documents/CIT01Policy.pdf 7 Governor Edmund G. Brown, Jr., Executive Order B-10-11, September 19, 2011, available at http://gov.ca.gov/news.php?id=17223 8 American Indian Studies Center, Report on the Status and Needs of Unrecognized and Terminated Tribes in California, University of California, Los Angeles, available at http://www.aisc.ucla.edu/ca/Tribes14.htm

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unfair policies directed toward California tribes since the 1850s. Moreover, nonrecognition has produced harmful social and economic consequences for these tribes and their members. [Emphasis added] The most recent version of AB 52 would redefine the term Native American Tribe in California pursuant to the proposed Section 21073 “Native American tribe means a federally recognized Indian tribe located in California.” Clearly this language is in direct opposition to federal, state, tribal, and international recommendations regarding the protection of Indigenous cultural and natural resources. Additionally, the AB 52 Fact Sheet states that: California sacred sites protection laws have been a topic of legislative efforts since 2001 when a landfill project was slated for a sacred place near the Pala Reservation (this still remains unresolved) and mining interests threatened a place held sacred by the Quechan tribe. Because of the lack of required tribal involvement in land use decisions concerning tribal sacred places, the State legislature passed SB 1828 (Burton) in 2002 that set forth a process for tribal participation in the CEQA process. SB 1828 was vetoed, but after a 3-year effort to develop new language with interested parties, SB 18 (Burton) was signed into law in 2004. Although SB 18 has certainly improved opportunities for government-to-government consultation between federally and non-federally recognized Tribal Nations in California since it was signed into law in 2004, SB 18 most certainly does not represent the first time laws protecting California Indian sacred sites have been a topic of legislative efforts. Indeed, in 1976, AB 4239, which was created primarily as a result of grassroots California Indian organizing efforts, established protections for Native American sacred places. See the Native American Heritage Commission History: “In 1976, the California State Government passed AB 4239, establishing the Native American Heritage Commission (NAHC) as the primary government agency responsible for identifying and cataloging Native American cultural resources. Up until this point, there had been little government participation in the protection of California's cultural resources. As such, one of the NAHC's primary duties, as stated in AB 4239, was to prevent irreparable damage to designated sacred sites, as well as to prevent interference with the expression of Native American religion in California.” NAHC website9

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Native American Heritage Commission, Native American Heritage Commission History, available at http://www.nahc.ca.gov/nahc_history.html

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Although SB 18 and the accompanying Tribal Consultation Guidelines certainly do not represent the first legislative effort at protecting Native American sacred places in California, one thing that the guidelines do is explicitly define “California Native American Tribe” as inclusive of non-recognized Tribes. See SB Tribal Consultation Guidelines:10 California Native American Tribes SB 18 uses the term, California Native American tribe, and defines this term as “a federally recognized California Native American tribe or a non-federally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission” (NAHC). “Federal recognition” is a legal distinction that applies to a tribe’s rights to a government-to-government relationship with the federal government and eligibility for federal programs. All California Native American tribes, whether officially recognized by the federal government or not, represent distinct and independent governmental entities with specific cultural beliefs and traditions and unique connections to areas of California that are their ancestral homelands. SB 18 recognizes that protection of traditional tribal cultural places is important to all tribes, whether federally recognized or not, and it provides all California Native American tribes with the opportunity to participate in consultation with city and county governments for this purpose. As used in this document, the term “tribe(s)” refers to a California Native American tribe(s). [Emphasis added] The evidence is clear—the prolonged and extreme periods of physical, legislative, cultural, and spiritual assault enacted against California Indian Nations and people by the state and federal government resulted in the disenfranchisement of thousands of California Indian people and hundreds of California Indian Nations. One of the many ways in which this disenfranchisement has manifested is in the removal of many California Indian sacred sites from the land base over which Tribal Nations are able to assert jurisdiction. Additionally, many California Indian Nations have been disenfranchised as a result of the federal government’s failure to recognize their status as Nations to which the federal government owes a duty to consult on a government-to-government basis, and/or termination of this status. However, recent and ongoing efforts at the federal and state level have, and continue to, pro-actively address the impacts of these policies, by defining, and recommending that other agencies define, “California Indian Tribe” as including non-recognized Tribes. Any successful legislative response to the situation faced by California Indians must support the full and fair inclusion of non-recognized California Indian Nations in the policies and procedures it aims to create or adopt.

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Governor’s Office of Planning and Research, Tribal Consultation Guidelines: Supplement to General Plan Guidelines, November 14, 2005, available at http://opr.ca.gov/docs/09_14_05_Updated_Guidelines_922.pdf

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Sacred Places Institute for Indigenous Peoples would be happy to work with your offices to create an AB 52 that acknowledges the unique circumstances of both recognized and non-recognized California Indian Nations and that supports the full and fair inclusion of both in all CEQA processes. Please feel free to contact SPI by phone (310) 678-1747, or by email a.mooneydarcy@gmail.com. We look forward to working with you in the future. Sincerely, Angela R. Mooney D’Arcy Executive Director Sacred Places Institute for Indigenous Peoples CC: Governor Jerry Brown c/o State Capitol, Suite 1173 Sacramento, CA 95814

Judge Cynthia Gomez Tribal Advisor and NAHC Executive Secretary Office of Governor Edmund G. Brown, Jr. 1500 Harbor Blvd., Suite 100 West Sacramento, CA 95691

Ken Alex Senior Policy Advisor to Governor Jerry Brown Director, Office of Planning & Research P.O. Box 3044 Sacramento, CA 95812

Scott Morgan Deputy Director Office of Planning & Research P.O. Box 3044 Sacramento, CA 95812

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Sacred Places Institute's Letter to Assemblyman Gatto re: AB 52  
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