Forging Law and Indigenous Fire Traditions

Details

By Professor Victoria Sutton

March 17, 2025

Guest Opinion. In January 2025, with the epic fire destruction of the Palisades home development area and surrounding regions of Los Angeles, poor resource management became very real and experienced.

A shortage of water was to blame, many pointed out. Any diversion of water from Los Angeles could be said to have prevented putting out the fires including water diverted to the Bay to save the Delta smelt fish. Water diversions in the Northwest that go to salmon would otherwise go to agriculture (not Los Angeles) yet it is part of the greater watershed in the northwest and still impacts all water usage. Everything is connected in the watershed ecosystem.

But the real solution to the problem is not using precious water to put out fires, but to prevent the fire in the first place through better natural resource management. But we still must ask the question, whether water should be diverted that may be sent to the Bay in ecosystem restoration plans? Let’s be honest — San Francisco just spent millions to argue to the U.S. Supreme Court that they should be allowed to have raw sewage overflow into the San Francisco Bay in violation of the Clean Water Act’s section 301, violating water quality standards (WQS) for the Bay.

The U.S. Supreme Court found that EPA had overstepped by requiring California to ensure it was not altering the water quality of the bay (or be fined). This section of the Clean Water Act was one of the last to be codified because it is complex, but it reflects the end result of allowing many industries to dump into the same body of surface water. California has now opened the flood gates for other states to ignore the water quality that results from excessive permit violations. California is far from consistent with their ecosystem restoration priorities!

State of the Delta Smelt

While happily dumping raw sewage, California professed to want to protect the Delta smelt, and I am sure some dedicated environmentalists were sincere in that effort. In 1993, the Delta smelt was listed as a threatened species under the Endangered Species Act. Steps were required to be taken to protect its habitat with a recovery plan. One of the biologists on the project described the process as a good one but one that failed for lack of making it broad enough. The critical habitat for the Delta smelt was the entire Delta bay and that included its salinity and quality. Most of the time, he says, agricultural interests were given priority and the recovery plan therefore never really worked. Now, Mosely says, 25 generations of Delta smelt later, not only have they not recovered but their populations have further been reduced. Mosley also remarks about the legal aspect of the failed recovery:

In short, developing the Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes was basically a good idea because it amounted to a Delta native fish habitat recovery plan. It failed in part because it was never instituted on a large enough scale under a coherent plan of shared governance among state and federal agencies. Providing water to agriculture has almost always trumped providing significant water for the Delta ecosystem and its fishes. This inequity is increasingly being recognized as a violation of the Public Trust, which has a particularly long history in relation to sharing water and has been undergoing a revival in recent years in California litigation. 

Sadly, the conservation programs have not been fully implemented to save the Delta smelt and in fact may be past restoration. Make no mistake, the Delta smelt is a sentinel of the health of the ecosystem in California indicating poor ecosystem health throughout.

Finding other habitats for the Delta smelt or managing similar species in another region may be the best solution.

California’s Incremental Movement toward Legalizing Controlled Cultural Burns

California has notable wildfires that are responsible for far more economic damage than any other state. This graphic shows why this is true due to the risk exposure in California. Houses and structures built in hazardous areas for wildfires require resource management and for some time there was an unwritten policy of public support for allowing nature to exist without human interference, which may have been the interpretation of preserving habitat for endangered species.

Sept 27, 2022 a law was adopted to make exception to the insurance code and provide for liability insurance for controlled cultural burns. But this may have satisfied the insurance lobby but it did not make it possible to practice cultural burns because regulations for permits still posed obstacles to implementing cultural practices.

In Sept 27, 2024, the California legislature passed SB 310, now eliminating liability for “cultural burns” conducted by a “cultural burn practitioner” amending the previous statute and defined as:

(f) “Cultural burn” or “cultural burning” means the intentional application of fire to land by a California Native American tribe, a tribal organization, or a cultural fire practitioner to achieve cultural goals or objectives, including for sustenance, ceremonial activities, biodiversity, or other benefits.

(g) “Cultural fire practitioner” means a person recognized by a California Native American tribe or tribal organization with substantial experience in burning to meet cultural goals or objectives, including for sustenance, ceremonial activities, biodiversity, or other benefits.

Even more significant was the addition of Section 4, which recognized the tribal sovereignty of California tribes to engage in cultural burns as a matter of tribal sovereignty and to sign agreements with California state agencies as a sovereign California tribe (but only those that are federally recognized). Further, the law specifically provides for the conduct of cultural burns on ancestral lands, which could mean far beyond current rancheria or reservation lands. Limiting that, however, is the statutory stipulation that cultural burns cannot be conducted without permission of the landowner.

In March 2025, the State of California signed a landmark agreement with the Karuk Tribe in northern California, to specifically implement this new statute to allow cultural burns without obtaining permits which are not congruent with the advice of elders based on environmental factors and traditional ecological knowledge and can occur outside the window of permits for the public to conduct burns. This has long been an impediment to cultural burns according to a talk I heard by Bill Tripp, director of Natural Resources for the Karuk Tribe. The Karuk Tribal Chair Russell "Buster" Attebery commented after signing the agreement:

“Our people have been hurt for over a century by fire suppression laws that have drastically impacted our resources and communities by preventing us from feeling safe to conduct cultural burns to manage our forests and steward our lands, as is our inherent responsibility,”Atteberry said in a statement. “This victory acknowledges our true sovereignty and supports us in protecting our lands, just as our ancestors did.”

Final thoughts

The truth is that we are all hurt by policies that do not use the best of resource management that includes traditional ecological knowledge that has been successful for thousands of years. The recent failures to control wildfires is not in need of a superficial solution of looking for a bigger water bucket. California’s lackluster habitat recovery for the Delta smelt and their insistence on allowing the regular flow of raw sewage into the Bay has to be reckoned with as an inconsistent even schizophrenic battle with their ecosystem.

However, it is laudable that California has taken steps to address their raging fires even if it comes centuries late, management through cooperation between the three sovereign governments, not just two, can ensure a much greater chance of co-existing in California’s fire-prone environment.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.