At its September meeting, the California Water Commission heard from Anecita Agustinez, Tribal Affairs Executive Manager for the Department of Water Resources, who shared insights on fostering meaningful collaboration with Tribes and Tribal partners in the state’s work.
Ms. Agustinez’s presentation highlighted key aspects of state policies and the importance of building strong government-to-government relationships. She discussed recent state initiatives that emphasize consultation practices designed to strengthen Tribal partnerships and support the comanagement of water resources. Her presentation also explored best practices for achieving meaningful engagement, the significance of Tribal sovereignty in consultation processes, and the role of Tribal water interests and indigenous knowledge systems in shaping California’s water governance.
Through this discussion, Ms. Agustinez underscored the value of integrating indigenous systems of knowledge into water resource management and emphasized the importance of collaboration to address Tribal water concerns across the state.
Respecting Tribal perspectives
How can we develop a respectful language of communication to effectively manage California’s water resources for all citizens, including Tribal citizens?
“To conduct meaningful and respectful government-to-government relationship building, it requires an understanding and respect for Tribal sovereignty on sovereign and ancestral lands, so developing best practices for meaningful engagement with Tribal partners begins with conversations, conversations that seek an understanding of mutual respect that develops into trust,” said Ms. Agustinez. “It starts with understanding that to Tribes, water is not a commodity; it is a precious resource that cannot be sold. Water is held sacred amongst all other sacred elements of spiritual beliefs by Tribal people.”
This requires a deeper understanding of California’s complex history with water, including the forced displacement of Tribal people from fertile lands, valleys, rivers, and streams. These displacements severed their connection to ancestral waters, cutting off access to traditional practices, gathering, and ceremonies. Recognizing this history is essential to fostering respectful and informed dialogue.
As California’s population continues to grow, the demand for land, water, and other resources will inevitably clash with Tribal perspectives on protecting cultural resources, including water rights. To address this, Tribal consultation principles and policies have been developed to guide state actions, ensuring that Tribal voices are heard and that Tribal knowledge and science are integrated into water resource management decisions.
It is critical to recognize that Tribes are not stakeholders, members of the public, or an ethnic group—they are sovereign governments, equal to state governments and above local and county governments. This sovereignty necessitates direct government-to-government engagement.
California is at a pivotal moment, advancing Tribally-led initiatives that support the return of ancestral lands, co-management, and co-stewardship of lands and waters. The state is increasingly incorporating Tribal knowledge into its policies, recognizing Tribal science as the best available science, and prioritizing the protection of Tribal water interests. This shift represents a significant step toward honoring Tribal sovereignty and fostering a more inclusive approach to water resource management.
Tribal consultation policies
Tribal consultation policies are shaped by a combination of executive orders, legislation, and agency-specific policies. To strengthen these efforts, state agencies are creating protocols and guidance documents while investing in specialized training. This training focuses on understanding the social and political history of California Tribes and equipping staff with the skills needed to conduct effective and respectful Tribal consultations.
At the same time, Tribes are taking the lead in defining the terms of engagement by developing their own consultation policies. These policies outline how Tribes wish to be engaged, establish clear parameters for when consultation begins and ends, and set standards for what constitutes meaningful and respectful consultation.
For example, the Karuk Tribe’s consultation policy outlines that the Tribe determines when consultation is complete; the Tribe will then rank the consultation based on its success and refer the state or local agency back to step one to restart the process if the consultation is deemed incomplete. The Rincon Band’s consultation policy specifies that once consultation commences, there is a commitment for the Tribe to be a part of the decision-making process, which allows the Tribe to be proactive rather than reactive in the local planning and development process.
The California Natural Resources Agency recently updated its Tribal Consultation Policy. The updated policy contains an appendix that outlines Tribal consultation best practices and a toolkit with additional resources.
Each department, board, and commission under the Natural Resources Agency will be guided by the agency’s updated Consultation Policy. They will have an opportunity to consider their own addendum that will serve each department, board, or commission’s particular needs.
The California Water Commission’s Tribal engagement policy
Ms. Agustinez commended the Commission for taking a proactive view and respecting Tribal sovereignty.
The California Water Commission operates under the California Natural Resources Agency and is part of the Department of Water Resources. In alignment with the Natural Resources Agency’s Tribal Consultation Policy, the Commission also adheres to the Department of Water Resources’ Tribal Engagement Policy. The Department of Water Resources plans to update its Tribal engagement policy following the adoption of the revised Tribal Consultation Policy by the California Natural Resources Agency.
The California Water Commission’s Tribal leadership comment policy adds a standing agenda item near the beginning of each meeting to acknowledge California Native American Tribal governments, to allow Tribal leadership, persons authorized explicitly by a Tribe to speak formally on their behalf, the opportunity to self-identify and to specify the agenda items on which they wish to comment.
When the Commission chairperson calls for comment on the agenda on any item, elected Tribal leaders will be invited to speak first, then an invitation will be extended to formally designated Tribal representatives. Once the Tribal comment is complete, the Commission’s chairperson will call for public comment, and Tribal citizens may join the public comment queue. In recognition that Tribal engagement is an ongoing process, the feedback that the Commission receives from Tribes may require that it revises this policy at a future time.
State policies for Tribal consultation
Ms. Agustinez then reviewed some of the legislation, executive orders, and state policies affecting Tribal consultation.
AB 4239 (1976): Establishes the Native American Heritage Commission
Established in 1976 through AB 4239, the Native American Heritage Commission (NAHC) serves as the state agency responsible for identifying and cataloging Native American cultural resources. The NAHC is tasked with protecting designated sacred sites and ensuring there is no interference with the practice of Native American religions.
In 1982, additional legislation authorized the NAHC to identify a Most Likely Descendant (MLD) when Native American human remains are discovered outside of a dedicated cemetery. MLDs are granted legal authority to provide recommendations on the treatment and disposition of ancestral remains, ensuring they are repatriated and handled in a culturally appropriate manner.
The NAHC also maintains the official California contact list of all Tribal governments in the state, regardless of federal recognition status, for the purposes of SB 18. Tribes included on this list must meet specific statutory requirements, including having an established government structure.
Beyond these responsibilities, the NAHC plays a critical role in ensuring California Tribes have access to Native American cultural resources on public lands. It oversees the treatment and disposition of inadvertently discovered Native American human remains and burial items and administers the California Native American Graves Protection and Repatriation Act.
SB 18 (2004): Consultation with Tribes in land use decisions
SB 18, enacted in 2004, is one of the earliest and most significant pieces of legislation addressing Tribal consultation in California. It requires cities and counties to contact and consult with California Native American Tribes before adopting or amending a general plan or designating land as open space. The primary goal of SB 18 is to ensure the protection of Native American cultural places by involving Tribes in local land use planning processes.
This legislation recognizes that many Tribes maintain deep cultural and spiritual ties to their ancestral lands, even though they have been displaced due to historical state and federal policies of termination, removal, and displacement. Many of these culturally significant sites are now under the jurisdiction of local governments, such as counties or municipalities, and are not located on Tribal lands. As a result, they are not automatically protected by Tribal policies or governance.
SB 18 provides a critical opportunity for California Tribes to engage in local land use decisions during the early stages of planning. It encourages local governments to build meaningful relationships with Tribes, ensuring that their input is not only sought but respected in the planning and decision-making process. This early consultation framework has since served as a model for other legislation aimed at strengthening Tribal engagement in land use and resource management.
Executive Order B-10-11 (2011) Recognizing Tribal sovereignty
Executive Order B-10-11, issued in 2011, established the policy for fostering communication and consultation between California state agencies and Native American Tribes. It directs all state agencies and departments under executive control to actively encourage and engage in meaningful consultation with California Tribes, both federally recognized and non-federally recognized Tribes.
The Executive Order established the Governor’s Office of the Tribal Advisor. The Tribal Advisor is tasked with overseeing and facilitating effective government-to-government consultation between the Governor’s administration and California Tribes to ensure that Tribal perspectives are considered in the development and implementation of policies that impact Tribal communities, cultural resources, and ancestral lands.
AB 52 (2014): Amended CEQA to include Tribes
AB 52, which took effect in July 2015, modified the California Environmental Quality Act (CEQA) to require lead agencies to notify California Native American Tribes about proposed projects and to engage in consultation if requested by the Tribes. The legislation established a formal consultation process for CEQA projects that could potentially impact Tribal cultural resources, ensuring that Tribal perspectives are considered in the environmental review process.
One of the most notable aspects of AB 52 is its introduction of a clear definition for Tribal cultural resources. These resources include sites, features, places, cultural landscapes, sacred places, or objects with cultural value to a California Native American Tribe. A resource qualifies as a Tribal cultural resource if it is listed or eligible for listing in the California Historic Register or a local Historic Register, or if the lead agency, based on substantial evidence, determines it should be treated as such.
The legislation also recognizes Tribes as subject matter experts regarding their cultural resources. Tribes that are traditionally and culturally affiliated with the geographic area of a project are given the opportunity to provide critical knowledge and insights about their Tribal cultural resources, ensuring that these resources are identified, protected, and respected during project planning and implementation.
Executive Order N-10-19 (2019): Water Resilience Portfolio
Executive Order N-10-19 directed the California Natural Resources Agency, the California Environmental Protection Agency, and the California Department of Food and Agriculture to prepare a Water Resilience Portfolio, which reassesses priorities and sets forth recommendations and actions to achieve these Priorities. Priorities 3G and 4 outline the principles for strengthening partnerships with tribal governments, encouraging these agencies to conduct extensive outreach with tribes to inform this process.
Executive Order N-15-19 (2019): Governor’s apology for genocide
Executive Order N-15-19 was monumental for Tribes in that it was the first time a governor had acknowledged and apologized for historical wrongs by the State of California towards California Native Americans. N-15-19 reaffirmed the principles in Executive Order B-10-11, and it established a Truth and Healing Council to develop recommendations on how to address and reconcile California’s violent history of genocide against California tribes and the century of prejudicial policies against California Native Americans.
The Truth and Healing Council is in the final stages of producing a report to the legislature, covering the past five years of outreach and listening sessions. The final report will contain recommended actions to address the historical wrongs caused by state actions and policies that have been detrimental to California tribes since early statehood to the present day.
Ancestral lands policy (2020)
Xavier Mascareñas / DWR
In September 2020, during the annual California Native American Day celebration, Governor Newsom announced a new administration policy focused on Native ancestral lands. Acknowledging historical injustices, the policy directs all state agencies to provide California Tribes with opportunities to access, comanage, and acquire lands owned or controlled by the state of California.
The policy emphasizes collaboration with Tribes to support land management and stewardship efforts, incorporating traditional ecological knowledge as a key component. It also lays the groundwork for grant programs to assist Tribes in acquiring, protecting, or managing natural lands within their ancestral territories, contingent on available resources.
Additionally, the policy establishes preferential practices to facilitate Tribal access to natural lands under state ownership or control that fall within Tribal ancestral territories. This includes working with local governments to ensure that surplus state lands are zoned in ways that promote Tribal access and use.
Executive Order N-82-20 (2020): California’s 30 by 30 initiative
Executive Order N-82-20 established California’s 30 by 30 Initiative to conserve and protect California’s biodiversity and use nature-based solutions to fight against climate change. The executive order commits to conserving 30% of California’s lands in coastal waters by 2030.
In November 2024, California voters passed Proposition 4, the Climate Bond, which authorizes $10 billion to support projects advancing climate change resilience and benefits to all communities. The Tribal nature-based solutions program was allocated $10 million as part of the climate bond to provide new funding for ancestral land return and tribal nature-based solution projects.
As part of this new allocation, the Tribal nature-based solutions grant guidelines have been updated to support the priorities outlined in the climate bond. This funding will continue to support the return of ancestral lands to California Native American Tribes, the planning and implementation of habitat restoration projects, protecting the California coast and oceans, advancing wildfire resiliency and cultural fire, and many other multi-benefit nature-based solution projects across California.
AB 923 (2022): Training in Tribal consultation
AB 923, passed in 2022 and effective as of December 2024, establishes clear guidelines for state personnel involved in government-to-government consultations with California Native American Tribes. The legislation requires that individuals authorized to represent the state in these consultations receive annual training on Tribal consultation practices. Additionally, it mandates that each state agency and department formally designate an official representative to conduct consultations. This designation must be documented through an annual written delegation of authority, which is submitted to the California Natural Resources Agency, the Secretary, and the Governor’s Deputy Secretary for Tribal Affairs.
The training requirement applies to a broad range of state personnel, including the Governor, Attorney General, all constitutional officers and statewide elected officials, directors of state agencies and departments, and chairs and executive officers of state commissions and task forces. The annual training must be completed by December 31 of each year to ensure that state representatives are equipped with the knowledge and skills necessary for effective and respectful Tribal consultation. Similarly, the written delegation of authority must be updated annually to maintain accountability and compliance with the law.
AB 1284 (2024): The Tribal Ancestral Lands and Ancestral Waters Act
AB 1284 authorizes the California Natural Resources Agency, along with its departments, boards, conservancies, and commissions, to enter into co-governance and co-management agreements with federally recognized Tribes. The legislation aims to establish partnerships that share responsibility for decision-making, resource management, and conservation efforts within a Tribe’s ancestral lands and waters, fostering collaboration and mutual stewardship.
The law also requires the Secretary of the California Natural Resources Agency, or their delegate, to initiate government-to-government consultation within 90 days of a Tribe’s request to negotiate co-governance and co-management agreements. This ensures a timely and structured process for advancing these partnerships.
Central to AB 1284 is the recognition of the importance of traditional ecological knowledge in conservation and water management. The Tribal Ancestral Lands and Ancestral Waters Act highlights the value of integrating Indigenous knowledge systems into state policies and practices, bringing the role of traditional ecological knowledge to the forefront in conservation and water management.
California Indian Country
California’s Native American community is defined by unique and complex characteristics. The state is home to the largest Native American population in the United States, a significant portion of which includes Tribes from other states who were forcibly removed from their traditional lands and relocated to California cities under federal policies of termination, assimilation, and relocation during the 1950s, 60s, and 70s. San Francisco, Los Angeles, and San Diego were designated as relocation cities, and today, these urban centers are home to second and third generations of Tribal citizens from Tribes outside of California. Additionally, California has the highest number of federally recognized Tribes in the nation, with over 110 federally recognized Tribes and more than 70 others actively seeking re-recognition of their federal status.
California’s Indigenous population has endured centuries of displacement and violence under state and federal policies. These policies stripped Tribes of their traditional lands and terminated their Tribal status, compounding the harm inflicted during earlier periods of Spanish colonization, the missionization era, and the brutal wars that accompanied California’s path to statehood. Native American villages that once thrived in fertile valleys along California’s rivers and tributaries were decimated by state-sponsored genocide, including the state-sanctioned practice of placing bounties on the lives of Native men, women, and children. These atrocities were driven by greed for land, access to water, and the pursuit of gold. California’s violent history of genocide and the bounty system cannot be erased, and it continues to shape the deep mistrust many Indigenous peoples feel toward state and federal governments.
Despite these historical injustices, California Tribes—whether federally recognized, state-recognized, or unrecognized—have maintained their enduring connections to their ancestral homelands. These lands, now often buried beneath state-owned reservoirs, urban developments, and asphalt parking lots, hold profound cultural and spiritual significance. They contain the sacred remains of ancestors and other irreplaceable cultural resources.
Tribes and water quality
Tribal governments operate independently of state reporting requirements due to their status as sovereign nations. Many tribal governments have established their own water codes, well standards, and water quality monitoring programs. Federal environmental laws, such as the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, authorize the United States Environmental Protection Agency (EPA) to treat eligible federally recognized tribes similarly to states for the purpose of implementing and managing specific environmental programs. These laws empower tribes to exercise authority over their lands in a manner comparable to state governments.
Tribal sovereignty over water resources enables tribes to function as water management agencies. In California, many tribes have developed their own water codes and regulatory frameworks under the Clean Water Act. Several tribes have also obtained “treatment as state” status, allowing them to assume jurisdiction under the Act. This includes administering water quality standards and monitoring programs, with the number of participating tribes steadily increasing.
Watersheds and groundwater basins contain fragile resources that face significant risks from drought, flooding, and wildfires. These resources are often located in sensitive and sacred areas used for ceremonies and other traditional practices that remain vital to tribal communities. Integrating Tribal science into statewide planning documents provides an opportunity to protect these cultural resources and support tribes in maintaining their traditional land uses.
Currently, the State Water Resources Control Board is working to adopt a definition of beneficial use that includes Tribal Beneficial Uses (TBUs). TBUs will encompass traditional and cultural practices, such as spiritual and ceremonial activities, as well as tribal subsistence fishing. This includes the non-commercial harvesting of aquatic resources for the sustenance of tribal individuals, households, and communities.
Best practices for meaningful engagement
Develop communication and engagement plans that outline how each department, board, or commission will engage with Tribes and conduct consultation when appropriate, and most importantly, when requested by a tribal government. Foremost is recognizing that tribal governments are the subject matter experts when it comes to protecting their resources and determining cultural affiliations.
When determining a cultural affiliation, do not default to modern boundaries, such as counties or other political jurisdictions. Historical removal policies mean that many Tribes have been displaced from their traditional and culturally affiliated lands that are outside of their current boundaries. Many Tribes that reside on rancherias were forcibly removed to these lands that were foreign to them and located hundreds of miles from their traditional territory.
By providing opportunities for engagement and consultation, governments can concentrate on building relationships before consultation is requested. Tribes are willing to offer their subject matter expertise to protect their natural resources if approached with mutual respect and an understanding of data sovereignty. Tribes also wish to have opportunities throughout the development process to support and inform decision-making.
Tribes traditionally do not disclose data related to water, land, and sensitive cultural information. Therefore, the use of MOUs or other governance agreements must be decided upon early in the engagement process. Confidentiality must also be addressed. State entities must develop internal policies to ensure that confidential information shared by the Tribe will not be accidentally misused or misapplied.
Data sovereignty is an understanding that best available science is inclusive of traditional ecological knowledge and recognizes that tribes are the subject matter experts. Indigenous knowledge is place-based, and is defined by each Tribe through their customary practices. It also provides an understanding that confidentiality will be respected. Once relationships are built, governments can engage in the process of sharing information and developing reciprocal communication opportunities with the goal of consensus-seeking when consulting on sensitive projects. Governmental entities can engage in critical information sharing to increase accuracy in water management planning and gain from tribal expertise, long-term hydrological water management, and land stewardship knowledge.
Trust and relationship building can lead to collaboration on projects that consider appropriate compensation for Tribal services. Subject matter expertise of tribal representatives must be valued and budgeted in advance of any proposed project.
Consultation under AB 52 defines specific steps and various timelines. It provides a unique opportunity to work with Tribal partners regarding identifying tribal cultural resources and to develop appropriate mitigation measures for the protection of sacred sites and cultural resources.
Many tribes require various governance models, such as the development of memorandums of understanding, memorandums of agreement, or the establishment of Joint Powers of Authority to create state public entities as governance agreements to accomplish mutual goals and to define data sharing and address confidentiality issues.
To develop strong relationships between state and Tribal partners, governments must engage as sovereigns. Tribal governments determine how they wish to engage. Tribes want to work with state and local partners, not as stakeholders, but through the government-to-government consultation process. State representatives must recognize that Tribal participation enhances any project by bringing valuable perspectives and expertise to the table.
Tribes experience the same issues as all government bodies. They are elected officials, and their governments face issues of limited capacity due to budgetary constraints and staff turnover. When requesting meetings, ensure your consultation representatives are the decision makers. Do not waste the time of elected Tribal officials without having decision makers involved in the engagement process.
‘Early, meaningful, and often’ is taken very seriously by Tribal partners. Outreach to tribes should be done early and often, even before projects are considered, so that a relationship can be built before a project is developed, providing an opportunity to incorporate Tribal input in the conceptualization of a project or program.
Cultural sensitivity is often unknown at the start of project planning, so early engagement is one way to minimize risk. Tribes wish to participate in initial data gathering, such as participating in biological, geological, and cultural research. Many tribes have developed extensive ethnographies, and some have developed their own databases. Oftentimes, potential projects may be located on ancestral land that the Tribe has been denied access for various reasons, or the project area has historically been under private control. In these instances, tribes would be very interested in early reviews, contributing to desktop surveys, and other pedestrian surveys. If the project area is in a culturally sensitive location, early coordination with culturally affiliated tribes may assist in initiating sensitive discussions on sacred site protection and identifying potential areas to avoid in design and project planning.
Develop patience in the engagement process by meeting regularly to address and overcome historic mistrust. Tribes may view your state or local entity based on past government experiences. Developing these relationships takes time, and all parties in consultation must develop mutual respect in order to be able to meaningfully engage.
Ms. Agustinez recommended developing a Tribal engagement plan to guide your organization’s interactions with Tribes. Start by creating and maintaining a Tribal contact list, using the Native American Heritage Commission’s list as a foundation and supplementing it with local contacts. The plan should outline steps for different types of consultation, such as those required under CEQA, your organization’s consultation policy, or other state policies and executive orders. Include provisions for informational meetings or workshops, and designate a point of contact for Tribal consultation. If you are a state entity, AB 923 requires annual training and the formal delegation of an official representative for Tribal consultation. The plan should detail how initial outreach will be conducted—via email, certified mail, phone calls, or Tribal online portals—and identify the Tribal Consultation team, including the liaison, decision-makers, program managers, and subject matter experts. Internal training for the team is essential to understand Tribal protocols, history, and perspectives, ensuring respectful and informed engagement.
Closing thoughts
California has experienced the significant effects of climate change, and through collaboration with Tribal governments, the state is finally incorporating the knowledge shared from tribal partners into sustainability policies. Other departments, such as Cal Fire, are also adopting Tribal science into emergency response policies and fire management practices. California Department of Water Resources recognizes best available science as inclusive of indigenous knowledge.
We are in unprecedented times, and have a duty to protect cultural resources that allow for Tribes to exercise their traditional uses of the land. Tribal governments, Tribal communities, and other underrepresented communities have experienced economic and physical displacement as a result of historical underinvestment and inequitable planning decisions made by others for them.
There’s still much work to be done to address disparities in water management planning for Tribal communities and other underrepresented communities. The best management practices and overview of state policies were focused on from a water perspective. You can imagine the amount of pressure upon tribal governments to respond to the many government requests for consultation on all other areas, outside of water management.
“I encourage you to take the time to develop the important relationships and outreach,” said Ms. Agustinez. “All communication is based on trust and mutual respect, and that begins with taking the time to initiate a conversation.”
- California Natural Resources Agency Tribal Consultation Policy
- Appendix 2: Tribal Consultation Best Practices (from CNRA Tribal Consultation Policy)
- Guidance Document for the Sustainable Management of Groundwater: Engagement with Tribal Governments
- Tribal Lands Primer
- California Natural Resources Agency Tribal Consultation webpage
- Department of Water Resources Tribal Policy webpage
