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June 19, 2014 Senator Jerry Chill, Chair State Capitol, Room 2205, Sacramento, CA 95814

Senator Ted Gaines, Vice Chair State Capitol, Room 5064

Senator Jean Fuller State Capitol, Room 3063

Senator Loni Hancock State Capitol, Room 2082

Senator Fran Pavley State Capitol, Room 4035

Senator Hannah-Beth Jackson State Capitol, Room 4019

Senator Mark Leno State Capitol, Room 5100


Sacred Places Institute for Indigenous Peoples’ Opposition to AB 52

Dear Senate Environmental Quality Committee Members: Thank you for the opportunity to address this Committee regarding AB 52, the proposed amendments to the California Environmental Quality Act. For the reasons provided below, Sacred Places Institute for Indigenous Peoples (SPI) must at this time, oppose AB 52 due to its diminishment of the rights of unrecognized Tribes in California. 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 un-recognized Tribes throughout California and the United States. We work with California Tribes and Indigenous organizations throughout the state and around the country and the world to make sure that the rights of Indigenous peoples and Tribal Nations are protected with respect to our environmental and cultural resources. While we support raising the level of protection and respect afforded Native American Tribes in California, AB 52, as it currently stands, would re-define the term “Native American Tribe” and would in fact limit and restrict this definition in a manner previously unwitnessed in this state. We object to this or any legislative attempts to redefine or limit the definition of the term “Native American Tribe” in any manner that excludes un-recognized Tribal Nations in California. Excluding un-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 un-recognized Tribal Nations in California will be destroyed at an unprecedented rate in the future. The challenges facing all Tribes, but in particular un-recognized Tribes in California, in terms of resources available to support cultural protection work and keep up with pending proposals likely to impact tribal cultural resources are substantial. Further disempowering un-recognized Tribes in this manner will make the already difficult task of protecting cultural resources almost insurmountable for un-recognized Tribes. Given the unique history of all California Indians, regardless of status as recognized or un-recognized, it is imperative that any attempt at legislative redress included all Tribes in California who are the descendants

of the survivors of state and federally funded genocidal policies against California’s first people in the 1800s, not just those descendants who happen to be members of federally recognized Tribes. To create new legislation that directly conflicts with the well-established rule of inclusion for unrecognized 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 and Un-Recognized Tribes 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…”1 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 Indians:2 “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 of Native America... Unlike other regions of the Country, California’s late settlement included a direct policy of extermination.” 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 Preservation3 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 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 1

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 2 Advisory Council on California Indian Policy, THE ACCIP Historical Overview Report: The Special Circumstances of California Indians, September 1997. 3 ACCIP Report on California Indian Cultural Preservation, September 1997

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] Current State Law and Un-recognized Tribes Current laws in California recognize and respect the unique history of California and the status of all Tribes, including un-recognized Tribes, especially when it comes to cultural resources and sacred places. For example see: 2009 Cal/EPA Policy Memorandum for Working with California Tribes4 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-10-1175 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] Or see the California Natural Resource Agency Tribal Consultation Policy, Adopted November 20, 20126 “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


California Environmental Protection Agency, CIT-09-01, Policy Memorandum: Cal/EPA Policy for Working with California Indian Tribes, October 2009, available at 5 Governor Edmund G. Brown, Jr., Executive Order B-10-11, September 19, 2011, available at 6 California Natural Resource Agency, Tribal Consultation Policy, Adopted November 20, 2012, available at

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 SB 18 Tribal Consultation Guidelines: California Native American Tribes7 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] COMMENTS ON AB 52 Section 1(b)(2) Establish a consultation process for federally recognized Native American tribes in California in the California Environmental Quality Act As articulated above, limiting consultation to federally recognized Native American Tribes is in direct conflict with existing state law as well as with the recommendations outlined in the Advisory Council on California Indian Policy reports. To summarize—state and federal direct financial support for genocidal acts perpetrated against California Indians subsequent to U.S. control of the area now known as California has created a present-day moral obligation on the part of these governments and their representative bodies to treat un-recognized Tribes as recognized Tribes with respect to cultural resources and sacred places in California. Arguably, California owes an even greater duty to all Tribes in this state, considering the fact that the state of California outspent federal government dollars in efforts to exterminate California Indian people and nations. According to the report Early Laws and Policies Related to California Indians, between 1851—1859, the State of California spent $449,605.74 on Indian “expeditions” while the Federal government spent about half that at $229,987.67.8


Governor’s Office of Planning and Research, Tribal Consultation Guidelines: Supplement to General Plan Guidelines, November 14, 2005, available at 8 Kimberly Johnston Dodds, Early California Laws and Policies Related to California Indians, California Research Bureau, 2002 (citing Comptroller of the State of California, Expenditures for Military Expeditions Against Indians, 1851—1859, Secretary of State, California State Archives, Located at “Roster” Comptroller No. 574, Vault Bin 393.)

Section 4. 2108.31(b) … “the lead agency shall consult, regarding the appropriate level of environmental review for a new project, with a Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project if (1) the Native American tribe requested to the lead agency, in writing, to be informed by the lead agency through formal notification of proposed projects in that geographic area, and (2) the Native American tribe responds, in writing, within 30 days of receipt of the formal notification, and requests consultation.” In our opinion this is a step backward. SB 18 made a concentrated effort to involve all California Tribes regardless of status as recognized or not, to make sure that Tribes were involved early on in the process and placed the burden appropriately on agencies rather than Tribes to initiate consultation. This section represents an ideological shift that is a step backward from existing state and federal law and is therefore in the best interest of no Tribe, regardless of recognition status. Additionally, placing the burden on Tribes, and in particular recognized Tribes only to provide written requests for notifications of pending projects likely to impact Native cultural resources and sacred sites, will leave a tremendous gap in terms of notice to Tribes of pending projects. If AB 52 only applies to federally recognized Tribes and federally recognized Tribes only request notice of projects within their ancestral territories, it will essentially be open season on all lands in California not within the ancestral boundaries of recognized Tribes. Section 2. Section 21073—“Native American tribe” means a federally recognized Indian tribe located in California. In particular, this section raises serious concerns in terms of its capacity to re-define the meaning of Native American Tribe in California, and to do so in such a way that severely limits the definition and leaves more than fifty un-recognized Tribes and likely more than 80,000 Native Americans in California without acknowledgement or protection. Section 10(b) This act does not prohibit any Native American tribe or un-federally recognized tribe from participating in the California Environmental Quality Act on any issue of concern as an interested person, citizen, or member of the public. This is a problem because it essentially forces elected and appointed tribal leaders representing unrecognized Tribes to choose between acquiescing to the relinquishment of sovereignty that is demanded by section 21073 if they want to comment on a project that might harm a sacred, cultural, historic, or archaeological site. If AB 52 passes without omitting the language restricting the definition of Tribe, it will be in conflict with existing law, thus making the process of working with Tribes in a respectful manner even more confusing for all parties involved. Conclusion Finally, we are disheartened to note that AB 52’s principal author and at least one of the two co-authors represent districts with only un-recognized Tribes. There are no federally recognized Tribes within the borders of Los Angeles County. If AB 52 passes with the current definition in places, the Tribal Nations within Assemblyman Gatto and Assemblywoman Lowenthal’s districts will be directly harmed as a result.

Therefore, AB 52 as it is presently written will have the exact opposite effect of the bill’s stated intention of respecting and raising the level of protection for Native American sacred places and cultural sites for the Tribes within these areas. The position taken as co-authors of this bill is in direct opposition to the Native constituents from the Tribal Nations within whose territory these congressional districts sit. For all of these reasons, Sacred Places Institute for Indigenous Peoples urges this Committee to reject AB 52 unless and until the definition of “Native American Tribe.” Please feel free to contact Sacred Places Institute at (310) 678-1747 or if you would like to discuss our concerns with this pending legislation in greater detail. Thank you for your consideration. Sincerely,

Angela Mooney D’Arcy Executive Director Sacred Places Institute for Indigenous Peoples

Sacred Places Institute Letter to SEQ Committee Regarding AB 52