Read: AB 168 09/25/2020
Read: AB 168 Closes the loophole of SB 35
Requires a pre-consultation process with a California Native American tribe prior to the submission of an SB 35 (Wiener), Chapter 366, Statutes of 2017, permit, which entitles a developer to a streamlined housing approval process, in order to identify and protect tribal cultural resources (TCRs).
(Shellmound, 09/22/2020)
AB 168 ensures that any project site that contains a tribal cultural resource listed on a national, state, tribal, or local historic register—such as the West Berkeley Shellmound—will be automatically disqualified for SB 35 fast-tracked approval.
Furthermore, under AB 168, developers are now required to conduct a consultation process with a California Native American tribe prior to submitting any application for SB 35 fast-tracked approval. That consultation process will identify whether there are any significant tribal cultural resources or tribal sacred landscapes that could be impacted by the proposed project. If cultural resources could be affected by a proposed development, a mutually agreeable and enforceable agreement between the developer and the tribe must be documented that avoids or addresses impacts to tribal cultural resources. If such an agreement cannot be reached, the project is not eligible for SB 35 fast-tracking.
Thus, AB 168 actually exceeds the standards put in place for tribal consultation under AB 52, California’s landmark law requiring consultations with tribes in regard to tribal cultural resources. It goes further by requiring the consent and approval of tribes in regard to the treatment of cultural resources and sacred sites, before a project is eligible for a permit under SB 35.
As the Senate Committee on Housing’s analysis states, “this delegation of decision-making power would be unprecedented and would grant California Native American tribes municipal decision-making power over housing projects.” The California Building Industry Association, California Business Properties Association, California Association of Realtors and other industry groups also cited this delegation of power to tribes as the principle reason that they lobbied against the passage of AB 168, demanding it be amended so that tribes are not allowed “an unchallengeable veto over whether a housing project is eligible for SB 35’s entitlement process.”
In our view, AB 168 represents a vitally important step in the direction of affirming the rights of California tribes to protect their sacred sites and cultural resources, recognizing that the tribes should be lead decision makers in regard to their sacred sites. The value of tribal consultation processes as prescribed by AB 52 is very limited if tribes have no ability to say “no” to a project that threatens an unacceptable level of impact to cultural resources. The sponsor of AB 168, Assemblywoman Cecilia Aguiar-Curry, wrote in a statement recommending passage of the bill:
“Without this bill, tribal cultural resources may be subject to avoidable destruction and desecration. We have lost much of our State’s Native history, and once a religious or cultural artifact, site, or burial ground is lost, it cannot be replaced. To honor California’s history and diversity, it is important that we continue to honor the consultation process with Native American tribes and protect tribal cultural resources. Early identification and consultation with California tribes will ensure that generations of Californians will play a role in honoring the culture and sovereignty of Native American tribes and communities, and facilitate necessary housing development by avoiding litigation.”
