Navigating the Tribal Landscape: Deciphering the Impacts of AB1284

LEGISLATION

Norine Holguin

11/13/20236 min read

In March 2023, Assemblymember James C. Ramos introduced Assembly Bill 1284 (AB 1284), known as the Tribal Cogovernance and Comanagement of Ancestral Lands and Waters Act, which aims to establish co-governance and co-management agreements between the California Natural Resources Agency and federally recognized tribes for the stewardship of ancestral lands and waters. However, this legislative framework brings into sharp focus the distinct legal status and rights of federally recognized tribes compared to state-recognized tribes.

Understanding AB1284

Assembly Bill 1284 (AB 1284), amended in March 2023, heralds a transformative approach in the way the California Natural Resources Agency (CNRA) collaborates with federally recognized tribes. This legislation, part of a suite of bills introduced by Assemblymember James C. Ramos, aims to establish co-governance and co-management agreements for managing ancestral lands and waters.

Understanding Co-Governance: A Paradigm Shift

Imagine a table where equals convene, where decisions are made not for tribes but with tribes. This is the essence of co-governance, the cornerstone of AB1284. It signifies a departure from unilateral decision-making towards a partnership rooted in mutual respect and recognition of tribal sovereignty. Through this lens, Assemblymember James C. Ramos envisioned a future where ancestral lands and waters are managed through a nation-to-nation, government-to-government relationship.

Co-governance and Its Significance

Co-governance, as defined in AB1284, emphasizes a joint decision-making process between the state and tribal governments, fostering a nation-to-nation, government-to-government relationship. This approach is not just a policy shift but a recognition of the sovereign status of Native American tribes. It acknowledges that these tribes are not mere stakeholders but are sovereign entities with their own governance structures. Therefore, their interaction with the state is on par with how national or state governments interact with each other.

Navigating the Terrain: Federally Recognized Tribes

For federally recognized tribes, AB1284 opens a door to formalized consultation and decision-making processes. Government-to-government consultations empower tribes, acknowledging their sovereignty and granting them a seat at the table. Within 60 days of a tribe's request, the state must engage in meaningful dialogue, ensuring that tribal voices are heard in matters that impact their communities. This represents a significant step towards equitable representation and inclusive governance.

Future Prospects and Challenges

Going forward, the challenge for California and its legislative bodies lies in balancing this new approach to tribal engagement with the need to include various tribal entities in state decision-making processes. While AB1284 sets a framework for federally recognized tribes, the state might need to develop additional mechanisms to ensure that state-recognized tribes are not left behind.

Federally Recognized Tribes

  • Government-to-Government Basis: Federally recognized tribes are engaged on a government-to-government basis. This acknowledges their sovereignty and the legal status granted by federal recognition.

  • Consultation Process: At the request of a federally recognized tribe, the state, and its agencies are encouraged to consult with the tribe on agency actions that affect them. This consultation is expected to happen within 60 days of the request, ensuring timely and meaningful input from the tribes.\

Non-federally Recognized Tribes

  • Consultation, As Appropriate: For non-federally recognized tribes and tribal organizations, the state and its agencies are encouraged to consult "as appropriate." This indicates a more flexible and possibly less formal approach compared to the consultation with a federally recognized tribe

  • Opportunity for Input: The state aims to provide these tribes and organizations the opportunity to offer meaningful and timely input on policies, processes, programs, and projects that have tribal implications.

Implications for State-Recognized Tribes

  • Recognition of Existence and Importance: The law acknowledges the existence and importance of non-federally recognized tribes in policy and project development. It provides a platform for these tribes to have a voice in matters that affect them, although it does not equate their consultation rights to those of federally recognized tribes.

  • No Legal Obligation: Unlike federally recognized tribes, there is no legal obligation for the state to consult with state-recognized tribes. The language "encourages" rather than mandates consultation, which may result in variations in how this is implemented.

  • Potential for Influence: While not on a government-to-government basis, non-federally recognized tribes can still influence state policies and decisions that affect them. This could be significant in areas like cultural preservation, land use, and environmental protection.

Overall Impact

  • Broadening Engagement: This provision reflects an effort to broaden engagement with all Native American communities in California, not just those with federal recognition.

  • Varied Levels of Engagement: It establishes a tiered approach to tribal consultation, with federally recognized tribes receiving a more robust, formalized consultation process.

  • Recognition of Diversity Among Tribes: It recognizes the diversity among Native American tribes in California and attempts to include those who have not received federal recognition in the decision-making processes that impact their communities.

Implications for State-Recognized Tribes

In the evolving narrative of tribal recognition in California, AB1284 heralds a promising stride towards inclusive governance for federally recognized tribes but casts state-recognized tribes into a limbo of partial visibility. State-recognized tribes now face an ongoing struggle for equitable recognition, as AB1284 offers a consultation framework that, while progressive, does not equitably extend formal rights or obligations to them compared to their federally recognized counterparts. This discrepancy underscores a broader challenge of ensuring that all tribes, regardless of federal status, are afforded meaningful engagement and recognition within the state's legislative and environmental stewardship efforts.

While AB1284 paves the way for a more inclusive and respectful governance model with federally recognized tribes, its implications for state-recognized tribes warrant critical examination. The existing legal framework in California encourages consultation with non-federally recognized tribes "as appropriate," indicating a more flexible, less formal approach compared to federally recognized tribes. This distinction raises several questions:

  • Equity in Representation: Does the differentiated approach in AB1284 create a disparity in representation and decision-making power between federally and state-recognized tribes?

  • Access to Resources and Decision-Making: Federally recognized tribes, through co-governance agreements, will have greater access to manage their ancestral lands and resources. In contrast, state-recognized tribes might not have similar leverage, potentially impacting their cultural and environmental conservation efforts.

  • Legal Recognition and Rights: The lack of federal recognition for some tribes often translates into limited legal rights and benefits. AB1284’s framework could inadvertently widen this gap.

A Step Towards Inclusivity or a Missed Opportunity?

For state-recognized tribes, who may lack federal recognition, AB 1284 appears to be a missed opportunity. While acknowledged for their existence and historical significance, are not granted the same formal rights to co-governance and co-management as their federally recognized counterparts. This distinction underscores the complex landscape of tribal recognition and the ongoing struggle for equal recognition and rights among Native American communities in California.

AB1284 represents a progressive step towards more equitable, inclusive governance, acknowledging the unique status and rights of Native American tribes. However, it also highlights the complexities in the landscape of tribal recognition and the need for inclusive policies that consider the interests of all tribal entities, including those without federal recognition. The emphasis on formal agreements and the recognition of tribal sovereignty in resource management could serve as a model for state-recognized tribes to advocate for similar rights and recognition. It could also potentially inspire legislative amendments or new bills that extend similar co-governance rights to these tribes.

Charting the Course Forward: A Journey of Collaboration

As Califonia navigates the intricate web of tribal-state relations, AB1284 serves as a compass guiding us toward a future built on collaboration and respect. It represents a step towards more inclusive governance, where the sovereign rights of tribes are honored, and their voices are amplified in matters of land and resource management. Yet, it also underscores the need for ongoing dialogue and advocacy to ensure that all tribal communities, regardless of recognition status, are included in the decision-making process.

AB1284 marks a significant shift in tribal-state relations in California, with far-reaching implications for tribal sovereignty and resource management. However, it also underscores the ongoing need for policies that holistically address the diverse needs of all Native American communities in California. As such, it should be seen as a part of an evolving dialogue and a step towards more comprehensive and inclusive tribal engagement strategies. In summary, this law now delineates a two-tier system of engagement with Native American tribes in California. Federally recognized tribes enjoy a more formal government-to-government consultation process, while non-federally recognized tribes are provided with opportunities for input, though with less formalized procedures and legal backing. This approach reflects the complex landscape of tribal recognition and the need to include various tribal entities in state decision-making processes.

Citation:

Ramos, Assembly Member, and Assembly Member Ward. “Assembly Bill NO. 1284.” Bill Text - AB-1284 Tribal Ancestral Lands and Waters: Cogovernance and Comanagement Agreements., California Legislative Information, 26 Feb. 2023, leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240AB1284.

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