Environmental Justice for Non-Recognized Tribes

Non-Federally Recognized Tribes Struggle to Protect Environmental and Cultural Assets
By Debra Utacia Krol and Allison Herrera
Read more about federally non-recognized tribes. (norcalpublicme...)
Valentin Lopez was handed a dilemma: how to honor his elders’ admonition to fulfill an ancestral directive to guard and protect the ancestral lands of the Amah Mutsun Tribal Band (amahmutsun.org/) , a small tribe along California’s Central Coast and parts of the San Francisco Bay Area.
“In 2006 the tribal elders came to a council meeting,” says Lopez, who’s served as chairman of the 600-member tribe since 2003. “They said our creation story tells us the Creator gave us the responsibility to take care of Mother Earth and all living things, and Creator has never taken away or rescinded that obligation. We have to find a way to do that.” Lopez left that meeting “just shaking my head saying, ‘How in the world could we ever do that?’”
One huge roadblock: Lopez’s tribe lacks federal recognition. Unlike recognized tribes, Amah Mutsun can’t use federal Indian laws such as the Native American Graves Protection and Repatriation Act, also known as NAGPRA or access federal funding to pursue environmental and cultural site protection. And, most of the tribal members have had to move east to the San Joaquin Valley, priced out of their stunningly beautiful-and expensive-homeland, because they don’t have a reservation or other trust lands to call home.
So, how could Lopez honor his word to the elders?
[Photo: Valentin Lopez. Credit: Debra Utacia Krol]
Lopez isn’t alone: Some 55 Indigenous communities in California aren’t on the BIA’s List of Recognized Tribes, the document used by the feds to provide funding and technical assistance to tribal governments for education, health care, governance, environmental protection and many other programs. In fact, California has the dubious distinction of the state with the largest number of unrecognized tribes. Entire cultural groups such as the Ohlone, Esselen, Salinan and other cultures fell completely through the cracks, while others like the Chumash, Mono and Maidu peoples have both recognized and non-recognized communities.
So, how can non-recognized tribes manage to protect their ancestral sites and exert environmental stewardship over their lands? In California, some state laws and policies offer at least some paths to protection.
In September 2011, Gov. Edmund G. Brown Jr. issued an executive order (www.ca.gov/arc...) that requires all state agencies to engage in meaningful consultation with Indigenous tribes in California, whether federally recognized or not.
The California Environmental Quality Act, or CEQA (resources.ca.go...) , was amended in 2014 provisions for tribal cultural protections. And, these cultural provisions apply to non-recognized tribes. Under the terms of the amendment, known to tribes as Assembly Bill 52 (leginfo.legisl...) , California tribes have legal standing to issue a notice for consultation regarding any proposed project covered under CEQA in the tribe’s traditional and culturally-affiliated lands.
More state agencies, most notably the California Coastal Commission (www.coastal.ca...) , have enacted tribal consultation policies. And, the state’s Native American Heritage Commission (nahc.ca.gov/) coordinates consultation as well as identifying and cataloging Native American cultural resources with state borders.
For small, resource-poor tribes such as the Amah Mutsun and the yak titʸu titʸu yak tiłhini Northern Chumash Tribe (www.yttnorthern...) (also known at the ytt Northern Chumash), whose lands lie about a four-hour drive north of Los Angeles on the Central Coast, utilizing these state regulations can be a challenge. Mona Olivas Tucker, tribal chair of the ytt Northern Chumash Tribe, manages relationships with a variety of state and local agencies.
Tucker believes that the state’s efforts to support tribes has a mixed record. “I think the Native American Heritage Commission tries very hard to be helpful to tribes federally recognized and non-federally recognized,” she says. “But I also think they have a giant amount of work and perhaps too small a staff to try to take care of it all; but, they do try pretty hard to help us when we reach out for help.” And, she says, the 30-day period to respond to requests for consultation is insufficient for the number of requests the tribe receives. “We work on a volunteer basis,” says Tucker. “Our tribal office is a spare bedroom here in my house and our tribal hall is my living room.” Each tribal member who helps with consultations handles a different area of San Luis Obispo County...