California’s New CEQA Protections for Tribal Cultural Resources and the Requirement to Consult with Native American Tribes

By: Kevin M. Davis | Attorney | kevin.davis@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On September 25, 2014, Governor Brown signed Assembly Bill No. 52 (AB 52), which seeks to provide greater protection for many Native American sacred sites in California. The bill is a step in the right direction, but it is only one step with quite a trail ahead. At the end of the trail, we would expect to see adequately protected Native American sacred sites in this State through meaningful consultations between lead agencies, project proponents and any of the affected Native American Tribes or Tribal Governments (“Tribes”). The important first steps that AB 52 has taken are discussed below along with the next steps that the State will need to take in order to continue down this trail.

AB 52 amends the California Environmental Quality Act (CEQA) to: (1) define an adverse change to a “Tribal Cultural Resource” as a “significant impact;” and, (2) require consultation with affected “California Native American Tribes” prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project. This is an important first step toward protection of Tribal Cultural Resources because CEQA now requires that Native American Tribes have a voice in protecting Tribal Cultural Resources. However, this first step occurs late in the process because these documents are released well after a project is planned and sited. The better process (and next step?) to protect Tribal Cultural Resources would be to involve the Tribes earlier in the process – when the Tribes would have an opportunity to consult on meaningful project decisions in the planning and siting phases.

The “Tribal Cultural Resources” identified by CEQA include “sites, features, places, cultural landscapes, sacred places, and objects with a cultural value to a California Native American Tribe” that are included or eligible for inclusion in the California Register of Historical Resources, or in a local register of historical resources. “Tribal Cultural Resources” also include cultural landscapes, historical resources and non-unique archaeological resources that meet these criteria. A lead agency has discretion to designate a resource as a “Tribal Cultural Resource.” By limiting the definition of a “Tribal Cultural Resource,” the statute limits protections to only registered resources or resources designated under the lead agency’s discretion. Further down the trail the State should take the next step towards protecting these important resources by broadening the statute’s definition or providing the affected Tribes some discretion over what constitutes such a resource.

When a Tribal Cultural Resource exists in a project area, a lead agency must consult with Native American Tribes that are: (1) located in California; (2) traditionally and culturally affiliated with the proposed project’s geographic area; and, (3) registered on the National American Heritage Commission’s contact list. A lead agency therefore may not be required to consult with all Tribes that could be affected by a proposed project (if a Tribe does not meet these criteria). Furthermore, in order to trigger the consultation under AB 52, the onus is on the Tribe to: (1) request in writing that the lead agency inform the Tribe of proposed projects in the geographic area; and, (2) request a consultation in writing within 30 days of such notification of a project. While the Native American Heritage Commission is tasked with assisting the lead agencies to identify Tribes affiliated with the project area, the burden is ultimately placed on the Tribes to pursue the consultation. Logically, the next step would be to remove these significant procedural burdens placed on the Tribes so they do not lose the opportunity to consult with the lead agency.

The consultation includes an opportunity for a qualified Tribe to propose mitigation measures that avoid or lessen potentially significant impacts to the “Tribal Cultural Resource.” For many Tribes, however this consultation may be a dead end or short trail. Any mitigation measures arising from the consultation are only recommended for inclusion in the environmental document and the adopted mitigation monitoring and reporting program. If included by the lead agency as a requirement of project approval, only then would the measures become fully enforceable under CEQA.

The mitigation measures suggested to avoid or minimize significant adverse impacts to “Tribal Cultural Resources” include: (1) avoidance and preservation of the resource; (2) treating the resource with culturally appropriate dignity; (3) permanent conservation easements; and (4) protecting the resource. However, no examples were provided, so the commitment to protect these resources is vague at best. This trail needs better markers. Further, the consultation would occur late in the CEQA review process so it is difficult to determine how the measures may be implemented when the location and scope of the project has already been established. As a next step, this statute needs to provide projects earlier direction and clarification in order to be effective. The lead agency should consult with Tribal representatives at the planning and siting stages to develop appropriate mitigation measures. Only then will we be able to walk down this trail with a clear direction.

Finally, AB 52 provides that a Tribe may request that the information provided through the consultation process be maintained in a confidential appendix to the environmental document. This would hopefully protect confidential Tribal information from public review, but this protection is subject to the lead agency’s diligence in preserving the confidentiality of such information. This open-ended protection from a lead agency may not be sufficient for Tribes to risk disclosing confidential information about their most sacred sites, which undermines the effectiveness of these CEQA amendments.

By enacting AB 52, California has taken a first step towards protecting many Native American sacred sites in the State. However, the trail ahead must be more clearly marked and there are many steps left to be taken. A copy of AB 52 is available here. For more information, please contact Kevin Davis at (619) 515-3293 or kevin.davis@procopio.com. Kevin Davis is a member of Procopio’s Native American practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

U.S. Department of Education Announces Upcoming Cities on its First-Ever School Environment Listening Tour for Native American Students

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

The White House Initiative on American Indian and Alaska Native Education (WHIAIANE) has announced it is having listening sessions on Native students’ educational environments throughout Indian Country in November. The listening sessions will give tribal governments, tribal citizens, educators, parents, community members and students the opportunity to speak with White House officials and Department of Education staff. This is an important aspect of consultation with tribal communities and Indian Country. These forums are also necessary to ensure Native students are educated in culturally-appropriate environments preparing them with the vocational and academic skills required for a healthy life upon high school graduation.

These cities and dates are:

Troy, New York – November 5

Seattle, Washington – November 7

Los Angeles, California – November 13

Oklahoma City, Oklahoma –November 18

East Lansing, Michigan – November 19

Tulsa, Oklahoma – November 21

The tour already completed two stops, one in Franklin, Wisconsin on October 10 and the other on October 26 in Lacrosse, Wisconsin.

The listening sessions focus on school environment issues — bullying, student discipline and offensive imagery and symbolism. The White House Initiative on American Indian and Alaska Native Education is gathering feedback during the tour and will consider how it can inform future action to ensure Native American students receive a high quality education.

“We hope these sessions will serve as a meaningful resource to the Native community as my office and the Administration work to ensure that American Indian and Alaska Native students have equitable educational opportunities in healthy learning environments,” said William Mendoza, executive director of the White House Initiative on American Indian and Alaska Native Education. “Indian students have unique education challenges as they strive to preserve their native cultures and languages, while ensuring that they are college and career ready.”

In his June 13, 2014 visit to Standing Rock Indian Reservation in North Dakota, President Obama affirmed the Administration’s commitment to strengthen Native American communities through education and economic development. His initiative, “My Brother’s Keeper,” ensures that schools can provide the social, emotional, and behavioral supports for all youth—including boys and young men of color—that will enable all students to graduate from high school ready for college and careers.

The WHIAIANE and the Department’s Office for Civil Rights (OCR) are committed to supporting school districts, states, tribal governments and other organizations as they seek to better serve Native American students and ensure that all students have equal opportunities and resources in order to learn and succeed in school, careers and in life.

The media advisory is here.

More information about the listening tour and tribal consultations can be found at www.edtribalconsultations.org.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Advising the Advisor to the President: My Experience with Federal Governmental Advisory Committees

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

There are experiences in life that you have to be there to believe. So often in Indian Country, we recount the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) failures without any appreciation of the people who create these organizational structures and buildings in Washington DC and all over the United States.

Two of the major players that you read about in Congressional Testimony, court filings and national media headlines are:

• Kevin Washburn – Assistant Secretary, Indian Affairs for the US Department of the Interior
• Yvette Roubideaux – Acting Director, Indian Health Service

This time last week, I worked side-by-side with the DOI Self-Governance Advisory Committee and the Indian Health Service (IHS) Tribal Self-Governance Advisory Committee to participate in the consultation process between tribal leaders and the federal government. They are empowered with the task of advising both Secretary Washburn and Dr. Roubideaux on a myriad of multifaceted policy topics including advanced appropriations, contract support costs, Ebola preparedness, third-party collections and grants for school boards. In turn, Secretary Washburn and Dr. Roubideaux advise the President.

These two aren’t figureheads. They are engaging and passionate leaders. Both confident, respectful and open to learning. They exemplify the spirit of consultation and what a government-to-government relationship should look like; in this room one could imagine observing the G8 Summit. This work group feels more like a peer group than a representational sampling of sovereigns. Perhaps it is because we are all related – by definition a tribe is a family of families. I realize that I am kinfolk to at least three people in the room before lunch. Governance changes when you have to answer to the taxpayers and to Great Aunt Pearl on Sunday. Both want answers.

I leave day two especially thankful policy work groups like this exist to ensure the mundane (think FY 2016 appropriations) are in line and the urgent (imagine Ebola isolation units at your local IHS facility) are anticipated. It is the work of these leaders in Indian Country that we are protected, represented and heard by the federal decision makers on the most important issues facing our families, neighbors and communities.

This was true consultation – one that can’t be codified by law. It can only be done out of genuine respect for self-governance and by a true statesman (or stateswoman). It’s refreshing to see the head of these agencies – sitting in a circle – with tribal leadership. They joke. They laugh. They are serious, focused and respectful. This wasn’t just a stop on a busy agenda of meetings but a place where a team of advisors met to hold each other accountable and generate solutions to Indian Country’s top problems.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.