What is Tribal Recognition, Who is a Descendant, How does the NAGPRA Notification List Work?

This article will be a very brief primer, touching on three important topics:

• “State-Recognized” Tribes don’t exist in California; but they do in 11 other states.
• Tribal Notification occurs after the discovery of Native American Remains; Tribal Consultation Occurs during the CEQA Workflow.
• Recognized Descendants of a Tribe, and Enrolled Tribal Members have established their “American Indian ancestry”.

What is Tribal Recognition?

Federal Recognition

When the U.S. Department of the Interior, Bureau of Indian Affairs, Office of Federal Acknowledgment, formally recognizes a group (“tribal entity”) as being a separate sovereign government from the United States.

This recognition “establishes” a government-to-government relationship with the U.S., and imbues this “Federally Recognized Tribe” with certain rights–like the ability to make and enforce their own laws, decide who they want to lead them, but also receive federal benefits (like HUD services), and must follow certain B.I.A. Federal laws, rules and regulations.

At last check, California has 109 Federally Recognized Tribes, with nearly 100 separate reservations or Rancherias. [California Courts, California Tribal Communities FAQ’s]

State Recognition

Provides the same acknowledgment of sovereignty; however, it does not necessarily come with the kind of funding (reparations), or even “Trust Responsibility” that the Supreme Court ruled the Federal Government has to Tribes.

States with a Tribal Recognition Process:

• Alabama
• Connecticut
• Georgia
• Louisiana
• Maryland
• Massachusetts
• New York
• North Carolina
• South Carolina
• Vermont
• Virginia

Still, each of the (currently) 11 states with a tribal recognition process imbue Recognized Tribes with their own mix of duties, rights, and responsibilities.

California State Recognized Tribes

The State of California does not have a recognition authority or process for Tribes, therefore, there are no State-recognized Tribes.

In California, there are Federally recognized Tribal governments, non-Federally recognized tribal governments, and Tribal communities.

California Community Assistance for Climate Equity Program, Tribal Appendix to the 2020 Technical Assistance Guidelines for State Agencies [Deliberative Draft]

California Native American Heritage Commission and NAGPRA

What California does have, is the California Native American Heritage Commission (Cal NAHC, or NAHC), and a robust, and codified set of laws protecting Tribal Cultural Resources (like Rivers, Forests, Plants, and Animals); and Places (like Shellmounds, Caves with Petroglyphs, Sacred Places like Ceremony and Village Sites); and Things (like mortar & pestles, funerary objects, jewelry,); and more.

Acts of legislation like both the Federal and California Native American Graves Protection and Repatriation Act (NAGPRA), AB 52-CEQA Tribal Consultation, empower the California Native American Heritage Commission to carry out both the administration and enforcement of NAGPRA, AB-52, and other related laws.

How Does the NAGPRA Notification List Work?

NAGPRA Notification Lists are made up of NAHC Contact Lists.

Part of NAHC’s solemn duty as the NAGPRA Administrator for the Great State of California is to develop and maintain a contact list of federally recognized California Native American tribes, non-federally recognized tribes, and coalitions of tribes.

This contact list informs the Most Likely Descendant List (CalNAGPRA List).

The Most Likely Descendants list is a registry of tribes, coalitions, and Individual Native Americans who trace their ancestry to a particular village site or traditional tribal territory. Tribes and Coalitions appoint their own MLD Representative; Individuals appear for themselves.

If discovered human remains are determined to be Native American by the County Coroner, the Coroner is required to send notification of that discovery to NAHC. (The Native American Heritage Commission.)

NAHC immediately notifies the appropriate Most Likely Descendant(s) via phone. This is the process commonly referred to as “Tribal Notification“

This Tribal Notification only occurs when the Native American Heritage Commission “receives notification of a discovery of Native American human remains from a county coroner” pursuant to the Health and Safety Code.

• Tribal Consultation can also be requested during the Environmental Review CEQA Workflow using the Tribal Consultation List;
• Or, when NGO and private contractors, etc. are in the planning process, via the Native American Contacts List.

Public Agencies are required to perform Environment Impact Assessments and Reviews. The California Environmental Quality Act mandates Tribal Consultation for public projects [with some very important exemptions; I digress.]

Tribal Consultation is the process of working collaboratively with a Tribal Consultant(s), and/or Most Likely Descendant(s) before development begins to mitigate the harm to Tribal Cultural Resources, and/or Native American Remains.

What is a descendant?

Anyone can claim descendancy, sure. Some people bet the farm on a family rumor of “Chief Apache” blood. But claiming descendancy is different than being an actual descendant of a tribe. It’s not something you can claim from a generalized mouth-swab, or even a fully sequenced finger prick; unless you can tie your DNA to a specific place, or band/tribe, that ancestry test means nothing. [For a number of reasons].

Being a descendant means knowing your family history. Being able to state who you are related to, and where you come from. True tribal descendants will be Recognized By Their Tribe (“Recognized Descendant“), or be Enrolled As a Tribal Member. When someone claims Native American/Indigenous/American Indian Ancestry, we expect them to be able to back that up by telling us who they are.

One who Is descended from another; a person who proceeds from the body of another, such as a child, grandchild, etc., to the remotest degree. 

Black’s Law Dictionary, 2nd Ed

Establishing Indian Ancestry is an essential part of any person’s claim of descendancy.