Analysis of Tribal Consultation Under California SB 18 and AB 52

Overview

This report by the Environmental Law Institute (ELI) evaluates the implementation of California’s SB 18 and AB 52, which require consultation with Native American Tribes for local planning and environmental review under the California Environmental Quality Act. The research assessed the effectiveness of these laws in supporting Tribal sovereignty and protecting cultural resources. The study incorporated research, interviews with Tribal and government representatives, a survey of Tribes and case studies.

Key Findings

• Gaps remain in the implementation of the laws for most Tribes; non-federally recognized Tribes are particularly affected.
• Tribal expertise is often not given sufficient weight and undervalued compared to archaeologists' findings.
• Limited resources constrain Tribes’ capacity to engage in consultation under the consultation laws, which are not funded.
• Frequently, failure to engage Tribes early enough forecloses avoidance and mitigation options. 
• Weak accountability measures lead to inconsistent consultation processes and implementation of mitigation plans.
• Protection of confidentiality of Tribal information is an ongoing concern. 

Implications for Policy and Practice

The researchers offer the following policy recommendations

• Strengthen confidentiality protections with enforceable agreements and other measures.
• Provide resources for Tribes to engage effectively, particularly those without federal recognition.
• Engage Tribes and Tribal experts at the earliest possible point, before making key project decisions.
• Institutionalize agency procedures for best practices. 
• Give deference to  Tribal knowledge to improve consultation outcomes.

By adopting these targeted actions, California can enhance the efficacy of consultations and better support Tribal sovereignty and resource protection.