The relationship between Native Americans and the federal government is a distinctive political one that has been set forth in the U. S. Constitution and subsequently defined through numerous treaties, statutes, executive orders and court decisions. The United States recognizes tribes as ‘domestic dependent nations’ under its protection and the relationship between tribes and the federal government is one between sovereigns, or “government-to-government”.
Native American tribes that are federally-recognized possess inherent rights of self-government and are given certain responsibilities, powers, limitations, and obligations along with that, as well as being eligible to receive certain federal benefits, services, and protections.
States have no authority over tribal governments unless expressly granted by Congress, and while federally-recognized tribes are not subordinate to state governments, they can have relationships with state governments as well. On September 19, 2011, Governor Jerry Brown issued Executive Order B-10-11, which explicitly states that “it is the policy of this Administration that every state agency and department subject to my executive control shall encourage communication and consultation with California Indian Tribes. Agencies and departments shall permit elected officials and other representatives of tribal governments to provide meaningful input into the development of legislation, regulations, rules, and policies on matters that may affect tribal communities.” He extended the policy to include all ‘federally-recognized and other California Native Americans’.
At the February 19 meeting of the California Water Commission, Anecita Agustinez, Tribal Policy Advisor to the Department of Water Resources, updated the Commission on the development of the Department’s tribal consultation policy and the activities of Office of the Tribal Policy Advisor.
Ms. Agustinez explained that she was hired was to develop the consultation policy and to provide policy advice and recommendations as it relates to the tribal community, and that she reports directly to Chief Deputy Director Laura King Moon and Director Mark Cowin.
“California is very distinct and unusual across the U.S. landscape when it comes to tribal governments. We have the second largest population in the U.S., second to Oklahoma, and following us is Arizona,” she said, noting that out of 566 federally recognized American Indian and Alaskan Native tribes, 114 of those are here in California, and another 50 to 70 have applications pending for re-recognition of their federally recognized status. (See termination policy.) The list of federally recognized tribes is on the California federal register and is updated annually; the state list of both federally-recognized and non-federally recognized tribes can be found with the Native American Heritage Commission.
“Government to government is what brings us here and what brings my position to DWR,” said Ms. Agustinez, noting that her power point slides have more background and information on federal statues and definitions.
Governor Brown’s Executive Order B10-11 mandates that every state agency develop a tribal consultation policy. Out of 11 state agencies, four of them are actually in existence, and the other six are currently in process, she said. The Natural Resources Agency’s tribal consultation policy was developed in November of 2012, and that has been serving as an interim policy while she works to develop a specific policy for DWR.
The tribal consultation policy is important because tribes are often not considered and sometimes they are offended by terms used in publications, she said. “My job is to develop a consultation policy that includes or provides enough sensitivity to our internal policies and directions while also making that bridge to tribal governments,” said Ms. Agustinez. “There’s quite a divide given the historical background and the historical relations we have, but what’s really bringing our communities together right now is the drought, because obviously in times of crisis you have to come together.”
She is currently circulating within the Department a tribal engagement policy which, once finalized, will be a procedures guideline for managers, divisions, and DWR staff to utilize and understand why tribal engagement is important. “We hear from the community that they don’t have access to grants, that they are not invited to commission meetings, etc, so the whole idea is to make certain information very transparent,” noting that they are developing a website for the tribes.
The Executive Order in 2011 also established the Office of the Tribal Advisor, Ms. Cynthia Gomez. Ms. Agustinez explained that Ms. Gomez is a well-respected member of the tribal community who is well experienced in state government and developed an effective tribal consultation policy for CalTrans that many of the other state agencies are looking to for guidance.
Tribal consultation on Lake Perris remediation
In November, the first tribal consultation on the Lake Perris dam remediation project was conducted with the Morongo, Soboba and Pechanga tribes; they will continue to work on a cultural monitoring resources development policy which does not exist now. “A big challenge is cultural resources and probably foremost to every Native American tribal member,” said Ms. Agustinez.
Lake Perris is a partnership with state and federal agencies, so the federal requirements of consultation apply. The federal requirements have long been established, and include NEPA, CEQA issues as well as Federal 106 state consultation requirements, said Ms. Agustinez. “We will defer to that, but we work closely with them.”
Tribal consultation on Bay Delta Conservation Plan
They have also started tribal consultations for the Bay Delta Conservation Plan and tribes are very concerned, she said. Federal and state agencies held an initial introductory tribal consultation on December 10, and every tribe in California was invited, both federally- and non-federally recognized tribes. There were 110 participants and 40 tribes represented, and a very lively Q&A, said Ms. Agustinez.
In addition to the twelve public meetings recently completed for the BDCP, Ms. Agustinez is working on conducting three specific tribal consultations dealing with BDCP. Meetings will be held in the north, the Delta region, and the Central Valley and are scheduled for late April and early May.
Tribal engagement with California Water Plan
Ms. Agustinez said that the California Water Plan has had a long and strong commitment to incorporating tribal engagement since 2005. “It began with a tribal communication plan, and now there is a tribal advisory committee that is helping with CWP update,” she said, noting that the committee will sunset when governor approves the new plan, so she will begin the recruitment process for new committee members for the 2018 update.
“That committee is only specific to the California Water Plan, but other committees are needed to advise DWR on all the other activities the Department is doing, especially in regards to cultural resources, because that is a strong touch point with our community and something that is always going to happen with the projects we do here in California,” she said.
Drought impacts on the tribal community
Currently, the drought having a big impact on the tribal community, she said. “As Californian citizens, we are faced all with the challenges of the current drought situation, and there are no greater challenges to all of California as we work together to reach the goals of providing for basic fundamental needs of water supply and protection of natural assets, not only for our generations but for generations to come.”
Ms. Agustinez is also on the drought management team for the Department of Water Resources, and she’s working on developing a tribal communication plans to tribes can be included in the drought response. “Drought is one of our most immediate needs,” she said. “The Hoopa tribe, the Karuk tribe, and the Tule River tribe have declared state of emergencies and there are several other tribes pending at the moment.”
“As we go into the drought and we’re looking at historical levels of our reservoirs, lakes and streams being down to the very lowest they’ve been, we’re running across a lot of ancestral remains being uncovered that were never unearthed and the tribes are very concerned about that.”
For more information:
- Click here for the agenda for the meeting.
- Click here for the webcast.
- Click here for Anecita Agustinez’s power point.
- Click here for Governor Brown’s Executive Order B-10-11.
- Click here for California Natural Resources Agency’s Tribal Consultation Policy.
- Click here for the Native American Heritage Commission.
- Click here for the Governor’s Office of the Tribal Advisor.