California Laws to Protect Tribal Cultural Resources: Are They Working?

Indigenous Knowledge and Tribal Consultation in California

California has enacted laws specifically intended to protect Tribal cultural resources and Tribal traditional cultural sites. But are these laws working? When development decisions are being made at the state, county, and city levels, are Tribal cultural values being sufficiently acknowledged, respected, and incorporated into decision-making processes?

The Advancing Tribal Sovereignty and Community Health Project was undertaken by researchers at the Environmental Law Institute (ELI) with support from the Robert Wood Johnson Foundation's Policies for Action program. ELI research offers insightful and impartial analysis to foster innovative, just, and practical law and policy solutions that enable leaders across borders and sectors to make environmental, economic, and social progress.

One question this project is examining is whether, in practice, Tribal cultural values are being sufficiently acknowledged, respected, and incorporated into environmental decision-making. The evidence suggests otherwise.

What the Laws on Indigenous Knowledge and Tribal Consultation Require

There are now laws that require state agencies and local governments to consult with Tribes about development and planning decisions that affect their cultural resources. Consultation means that the government agency formally meets with the Tribe and considers its views and information when deciding.

Two California laws, SB 18 and AB 52, set rules about consulting with Native American Tribes when a government agency plans development in places important to their culture. While these laws don't precisely define "Indigenous Knowledge," in the course of consultation, the agencies must take into account how Tribes understand and define Tribal cultural resources or traditional sites. 

SB 18 says that cities and counties must consult with California Native American Tribes while developing their general plans and before making decisions that could affect places, objects, or features that are important to Tribal traditions, heritage, and identity. This includes things like Native American cemeteries, worship places, and ceremonial sites. It also includes things listed on a historic register.

AB 52 changed the California Environmental Quality Act (CEQA) to say that harming a Tribal cultural resource (cultural place, object, or feature) is an environmental problem. This includes anything with cultural value to a Native American Tribe that is on a historic list, or something the lead agency decides is significant. Agencies must consider the Tribe's identification of the resource. 

AB 52 further requires agencies to offer consultation on the proposed development to potentially affected Tribes, including identifying cultural resources. It also says that if a Tribe requests it, the agency must consult with the Tribe about project impacts on the cultural resources, project alternatives, and potential ways to lessen harm. However, the law doesn't require the government to agree with the Tribe's views or how the Tribe assesses the importance of the resource.

At the federal level, guidance is now being developed on incorporating and respecting Indigenous Knowledge through identifying, evaluating, and avoiding or mitigating impacts on Native American cultural heritage objects and places.

Consultation is closely connected to environmental justice. In an Executive Order, then-Governor Brown not only apologized for the harm done to Native Americans in the past and established a Truth and Healing Commission, but also reaffirmed the importance of consultation in protecting the interests of Tribes.

Preliminary Evidence on Current Practices in California Related to the Protection of Indigenous Cultural Resources

This project found a number of problems indicating that cities, counties, and government agencies are finding ways to skirt these laws:

• Agencies often rely on experts who are not from Native American Tribes when trying to identify significant cultural resources and decide how important they are. Tribes are finding they sometimes have to prove their Indigenous Knowledge instead of being seen as experts.

• Also, agencies may look at cultural items individually instead of as part of a bigger picture. Agencies often focus on individual objects and ignore the larger landscape or village in which they are found. For Tribes, the value of these items can frequently only be understood in a larger context.

• When it comes to exploring different options, agencies often have strict deadlines. They may not allot sufficient time to consider the viewpoints of Tribes.

• Our data shows that the required conversations between agencies and Tribes are not happening as often as they should. This means that Indigenous Knowledge might not be taken into account in local planning and development or state agency decisions.

• Finally, even when Tribes are part of the planning, a development proposal can sometimes lead to changes in a local government's general plan that limit the initial protections for cultural resources.

Next Steps in Evaluating California's Efficacy in Protecting Indigenous Cultural Resources

In its next steps, this project will consist of a survey and additional interviews to confirm and extend our initial findings, case studies, a report that describes gaps in the laws and their implementation, and recommendations for improvement to share with Tribes and agencies. Researchers will develop preliminary recommendations to address training for agencies, resources available to Tribes, building relationships, effective procedures, accountability, respect for Indigenous Knowledge, timeframes, protection of resources and effective mitigation, and confidentiality.

Our project website is expected to go live in January 2024 and will provide updates and more information. The project is expected to conclude by April 2024.