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 Volume 10, Fall 2002 |
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Protecting California CILS Partners on Tax Assistance Project Court Upholds CA Board Member Profile: Home Ownership: Indian Housing Law Practice at CILS CILS Fights to Preserve Indian Organizations Working for You: Indian Child and Family Services CILS Domestic Violence Initiative Tribal TANF Making Great Strides in CA |
Protecting California Indian Resources With the passage of the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, the return of Ishi, and the Kennewick Man lawsuit, the last decade has seen battles over tribal cultural and religious protection become the subject of front page stories in major newspapers. There have been highly-publicized disagreements between archeologists, museums, research institutions, and tribes, and the public debate has pitted tribal religion and cultural resource preservation against science. Since western expansion began, California tribes have fought to protect their cultural and religious sites from destruction, vandalism, and desecration. Hundreds of cultural and religious sites have been lost over the years, and tribes do not want to spend their futures retrieving stolen and desecrated items. Today, California tribes are not only fighting for the re-burial of their ancestors, the return of cultural items, and redress for violations of existing laws that result in the destruction of sacred sites; many tribes are becoming more pro-active in their efforts to save remaining sites. Preservation of important sacred and cultural sites is on the top of many tribal governments’ "list of concerns" that they discuss with their elected representatives. Tribes are employing a variety of methods to secure protection of religious and cultural sites, turning to legal action, the media, and legislation to protect their interests. In addition, tribes are working with federal and state land management agencies, such as the Bureau of Land Management (BLM); developing consultation agreements with federal and state agencies such as the Army Corps of Engineers, the Department of Energy, and Cal-Trans, and monitoring and treatment agreements with local cities, utilities, and private developers; participating in consultations through the National Historic Preservation Act; and pursuing partnerships with federal and state law enforcement agencies to ensure prosecution for violations of the Archeological Resources Protection Act (ARPA) and other federal and state historic preservation laws. Such pro-active tribal activities are forcing the discussion of tribal cultural resource preservation and tribal religion out into the mainstream among state legislators, local elected officials, the construction industry, utility and energy companies, and private land owners. CILS has long been committed to helping California tribes protect their sacred sites and cultural resources, including work on conflicts such as the famous G-O Road case of the 1970s and 1980s (See related story, Page X). We continue to prioritize providing assistance to tribes in their efforts to preserve sites of cultural and religious significance and ensure healthy and vital environments for California tribes. Our recent activities in this area have involved working with the courts and State legislature, as well as facilitating consultation among tribal governments and various federal, state, and local agencies. Middletown Rancheria Cultural and Environmental Resources CILS is representing the Middletown Rancheria Indian Tribe in a lawsuit involving environmental and cultural protection. Filed against Lake County and the owners and Snows Lake Vineyard, the lawsuit seeks a full-scale environmental review of the Perini Hill-area vineyard and restitution for damages caused by the developer’s grading and vineyard conversion. Snows Lake Vineyard received a permit in 1998 to grade 650 acres of land. In 2001, reports surfaced that the vineyard had cleared up to 200 additional acres of land, including areas never previously used for agriculture. The overgrading and destruction of resources have stirred up controversy in the county, in part because Lake County landowners have experienced reduced water flow from the aquifer underlying the vineyard. Last June, amid growing protests from landowners and citizens groups, the county ordered the vineyard to stop work and submit an application for a new grading permit. The Tribe’s lawsuit alleges that the county permitted the vineyard to resume grading operations without any environmental review, has refused to conduct any such review, and that the original permit was obtained by means of false statements. Three citizens groups have also filed a suit against the county. The Tribe alleges that numerous significant natural and cultural resources have been destroyed, including vernal pools and streams, native oaks and other vegetation, and recorded tribal archaeological sites known to have been hunting camps (and believed to have contained ancestral burial sites). In addition, the Tribe has reported problems related to pesticide drift, noise and air pollution, and the conversion of virgin soil to agricultural use. Prior to filing the lawsuit, the Tribe’s environmental director had raised the Tribe’s concerns with both the vineyard and the county. CILS Senior Attorney Jim Cohen, who is representing the Tribe, says, "Lake County has been allowing gross environmental destruction in the name of economic development at the expense of the tribe and the public for too long. With the county refusing to enforce environmental protection laws, there is no choice but for the tribe to initiate action to make sure the earth, water, and air are protected." Honey Lake Maidu Cultural Practices In the Summer of 2001, CILS assisted the Honey Lake Maidu Tribe in negotiations with the National Forest Service on issues related to cultural resources protection. The Tribe had faced difficulties in securing permits from the Forest Service for their practice of a traditional event on public lands within their ancestral territory. Representing the Tribe and the Lassen Yah-Monee Bear Dance Foundation, a non-profit corporation established to protect Maidu cultural resources, CILS facilitated several meetings between Tribal leaders and federal officials. Because the Forest Service is given leeway in determining whether or not to issue use permits, it is not illegal for the agency to deny permits to the Tribe for their annual Bear Dance. However, by bringing Tribal leaders and top representatives of the Forest Service district together to discuss their interests, CILS was able to assist the Tribe in improving its relationship with the Forest Service by fostering more effective communication between the Tribe and agency, and helping the Forest Service to develop a better understanding of the Tribe and its interests. Building successful relationships with federal, state, and local governments and agencies is a crucial, often lengthy process for tribes seeking to protect their cultural and religious resources. By facilitating such local, government-to-government interaction, CILS is often able to help tribes develop more positive and effective relationships with these entities, and encourage greater respect for and understanding of tribes’ interest in protecting their vital resources. SB 1828: The California Sacred Sites Bill Throughout the Summer of 2002, California tribes and CILS worked diligently to secure passage of a religious and cultural resources protection bill designed to preserve California tribes’ sacred sites. SB 1828 was passed by the State legislature in August. Much to our dismay, the bill was vetoed by Governor Gray Davis on September 30th. CILS, including Senior Staff Attorney Laura Miranda, played a major role in securing the passage of SB 1828 by the State legislature by providing the bill’s sponsor, Senator John Burton (Dem. – San Francisco), with crucial information for the bill; educating Legislative members, the Republican Caucus, and the Governor’s staff about issues relating to California tribal cultural and religious resources protection; and countering the bill’s significant opposition from lobbyists and public and private entities by distributing Tribal Alerts to California tribal leaders, describing misinformation being disseminated about the pending legislation by the bill’s opponents and providing details about the bill’s important provisions. The problems that the bill would have addressed will continue to present significant difficulties for tribes attempting to preserve their sacred sites and resources, and CILS will continue its efforts to assist tribes in protecting sacred sites and cultural resources and fighting for more effective and comprehensive laws to preserve vital tribal resources. The Governor has pledged to work on new legislation and CILS and California tribes are more resolved then ever to work together to see this needed legislation pass. Inadequacy of Existing Protections Current cultural resources protection and historic sites protection laws are inadequate to ensure preservation of many tribal sacred sites in California. The California Environmental Quality Act (CEQA) is the only state law that gives any type of protection to sacred sites. If a tribe attempts to use CEQA to preserve a religious site it will often have little or no success because sites are evaluated for archeological or scientific significance – not in terms of cultural significance. Although the CEQA guidelines say that a project’s impact on cultural values of tribes should be taken into consideration, this is not a mandatory requirement, and the CEQA guidelines provide no mechanisms for evaluating cultural significance. If there is no scientific value attributed to a site, CEQA allows for its destruction, even though the site may have irreplaceable cultural or religious meaning for a tribe. Furthermore, sacred sites can be documented and then destroyed, and this is precisely what happens in the majority of such situations. Although CEQA encourages avoidance to preserve archeological sites, lead agencies almost never require avoidance because they are not required to do so. If the only impact of the project is on archeological resources, then CEQA does not even require a complete environmental evaluation. Under CEQA, there is no requirement that tribes receive notice of projects that impact their sacred sites. Sites can be destroyed without a tribe ever knowing there was a project being planned or a threat posed to their sites. Most tribal governments do not have adequate resources to monitor all activity within their traditional territories. Tribes would have to keep tabs on every single project in a number of jurisdictions, and with a number of different lead agencies. This is virtually impossible for any governmental entity – tribal or non-tribal – to accomplish. Land Use The laws that are in place to protect sacred or religious sites apply exclusively to federal or state lands. Currently, there are inadequate protections for sacred and religious sites that are on private lands – where the majority of such sites lie. Because the treaties made with California tribes were never ratified by the United States, California tribes lost enormous amounts of land, and thus did not retain jurisdiction over most of their sacred and cultural sites. Preserving their sites of religious significance automatically requires tribal involvement outside of reservation boundaries. But tribal involvement in land use matters outside their jurisdiction is not always palatable to the general public, as it is assumed that tribes will somehow have the ability to "trump" private property rights. Few people understand tribal sovereignty, and even fewer understand Indian religious rights. As tribes continue to fight for their right to protect their cultural and religious resources, it will be important to continue educating both legislators and the general public about tribes’ valid interest in land use matters outside their boundaries; why such interests are fully within existing tribal rights; that agencies are not taking unprecedented action by involving tribes in their decisions; and that inclusion of tribes in land use decisions is not only fair and just, but advantageous for all concerned parties. Necessary Changes In order to provide necessary protection of sacred sites, there must be tribal involvement in land use decisions that affect cultural and religious sites. Changes to existing law are necessary, including: protection for sacred sites, in addition to those deemed important for archeological or scientific reasons; tribes must be given notice of projects that may impact sacred sites so that sites outside reservation boundaries can be preserved; agencies and tribes should participate in government-to-government consultation so that sacred sites threatened by development can be avoided entirely or the damage to them can be lessened; projects impacting sacred sites should be subject to environmental review; projects that will adversely impact sacred sites should not be approved solely for economic reasons. |
