The fight over a 5,000-year-old burial site in California

How a state law to expedite affordable housing erased a tribe’s right to consultation.


Editor’s note: On July 28th, 2021, the Supreme Court of California denied review of this case.  Developers and landowners Ruegg & Ellsworth and the Frank Spenger Company will be granted a permit to develop on the West Berkley Shellmound and Village Site.

After a six-year fight to protect the West Berkeley Shellmound, an appeals court granted a developer the right to build an apartment complex there. The area is currently fenced off by barbed wire.

Over the course of three weeks in the fall of 2005, Corrina Gould and dozens of others walked approximately 270 miles around California’s San Francisco Bay. Activists from the group she co-founded, Indian People Organizing for Change, alongside allies from the Bay Area and abroad, paused to pray at shellmound sites scattered across the area, from Vallejo to San Jose and up to San Francisco.

This was one of many walks that Gould, the tribal chair for the Confederated Villages of Lisjan, one of several Ohlone tribes, coordinated over the years to raise awareness about the approximately 425 shellmounds that once dotted the landscape. These structures, which were assembled by humans from layers of shell deposits and used as burial and ceremonial grounds, have all but disappeared underneath urban San Francisco and its surroundings, buried by railroad tracks, apartment buildings and shopping malls. In some instances, the shells themselves were hauled off to pave roads in the city.

On one of these walks, Gould held prayers at the West Berkeley Shellmound, one of the oldest sites and a place that has deep significance for her tribe. “This was the very first place that we began to build shellmounds — our cemeteries along these waterways,” said Gould. Ohlone people were laid to rest here before their souls traveled on to Alcatraz Island and passed through what Gould knows as the western gate, site of the present-day Golden Gate Bridge. 

But like so much of her tribe’s history, it might soon be destroyed. This past April, after a six-year fight to protect the shellmound and its greater historic site, an appeals court granted a developer the right to build an apartment complex there. The City of Berkeley and the Confederated Villages of Lisjan appealed that decision in May, bringing the case before the Supreme Court of California. But the court reviews only a small percentage of the cases that reach its jurisdiction — and if the case is dismissed, the developer will receive the permit. At a time when California Gov. Gavin Newsom has publicly issued an apology to tribes and formed a Truth and Healing Council, which could later recommend actions including reparations, this case proves just how difficult it will be for the state to honor such commitments if they collide with other priorities.  

Brdiget Brehen at candlelight vigil to protect the West Berkeley Shellmound on March 20, 2021. Hundreds attended.

IN 2015, REAL ESTATE developers and landowners Ruegg & Ellsworth and the Frank Spenger Company submitted an application to develop a 135-unit apartment complex and retail space located on the West Berkeley Shellmound and Village site, which was designated as a city landmark in 2000. As part of the process, the developer submitted a draft environmental impact review (DEIR), claiming that an archaeological dig in 2014 showed the apartments would not overlap with the Shellmound site. However, in letters to the planning and development department, Christopher Dore, an archaeologist who had previously worked with the City of Berkeley, pointed out that the 2014 sampling methods had been inadequate to make a determination about the location of the shellmound. At the time, some Ohlone tribal members said that proposed mitigation efforts, such as sending any found human remains to a cemetery, simply added to the injustice. (One Ohlone tribal member, who has worked as a consultant for the developers, disagrees, saying that the shellmound’s location is not as vulnerable as opponents allege.)

Even if it did constitute a structure, the company maintains that it merely represents the “remnants” of what once existed.

But those concerns no longer mattered in 2017, when then-Gov. Jerry Brown signed Senate Bill 35 into law. The controversial legislation incentivized the construction of affordable housing at the expense of local review processes, allowing developers to bypass the California Environmental Quality Act, the state’s version of the National Environmental Policy Act, if a development met an affordable housing requirement. As a result, Ruegg & Ellsworth withdrew its application and submitted a new proposal that expanded the size of the project and designated half of the units as low-income. This halted the California Environmental Quality Act (CEQA) process, which would have required an environmental impact report, as well as public input and consultation with local tribes.

The case currently before the state Supreme Court in part questions whether this new law should even apply to this site. That’s because the legislation has certain carve-outs that prevent the use of this streamlined permitting process — if, for example, the site holds a historic structure that could be demolished. From the developer’s perspective, the shellmound is not a historic structure; Ruegg & Ellsworth refer to it as “only a ‘mound’ or a ‘heap’,” according to court documents. Even if it did constitute a structure, the company maintains that it merely represents the “remnants” of what once existed. In April, the judges in the Court of Appeals agreed. (Neither the development company nor its lawyers would comment for this piece.)

Isabella Zizi (Northern Cheyenne Arikara and Muskogee Creek) speaks to a crowd gathered for a candlelight vigil to protect the West Berkeley Shellmound Sacred Site, one of the the earliest known Ohlone structures on the shores of what is now called the San Francisco Bay.

IT'S TRUE THAT IF you visited the area today, you wouldn’t be able to see the mound—which was at least 15 feet high, and approximately 600 feet long—that once stood there. Instead, you’d see the old parking lot of a now-closed seafood restaurant, Spenger’s Fresh Fish Grotto. And to be clear, only a portion of the mound may still lie below the site of the proposed development. But to Gould, the fact that a parking lot is all that sits on the site is itself a bit of a miracle. In a way, it has protected what little is left of her tribe’s history. “That place is especially important, because it has not been developed on, it has not been dug up,” she said. “And so we have to acknowledge that there’s something special, that this land for all of these years since colonization has been left virtually untouched.” 

 Since the state law did not define what makes a historic structure, it’s up for interpretation whether this site counts as one. As the City of Berkeley points out in court documents, the state’s own Historical Building Code defines a historical building as “any structure or property, collection of structures, and their related sites deemed of importance to the history.” The appeals court has chosen to go with a definition more akin to buildings that rise above ground and are still standing.  

“We have to acknowledge that there’s something special, that this land for all of these years since colonization has been left virtually untouched.” 

For Gould, the very concept is biased. “A ‘historical structure’ is always a funny word for me, as an Indigenous person,” she said. “Because they want to use only the history since colonization. They don't use the history beyond that. And so thousands of years of history is left behind.”

Dore, who studied the site in 1999, said that it is significant apart from the mound. “There are probably lots of other features within the site boundary and artifacts and, you know, maybe structures and other types of things beside the mound,” he said. “It’s quite plausible that there would be hearths, fire pits, and remains of buildings or shelters.” It’s also likely that there are burial remains there as well, he said. Just in 2016, four burials were uncovered across the street near the Spenger Restaurant. Dore thinks it meets all the criteria for being listed on the National Register. In 2020, it made the National Trust for Historic Preservation’s annual list of Americas 11 Most Endangered Historic Places.

Unfortunately, when the law is vague, courts don’t often rule in favor of tribal perspectives, said Courtney Ann Coyle, an attorney who is representing the United Auburn Indian Community, a tribe in California that submitted an amicus brief in support of the city of Berkeley and the Confederated Villages of Lisjan.

The tribe Coyle represents is worried the court’s decision could have wider implications for other tribes. “There is a serious risk that the court’s conclusion — that mounds cannot be structures and that they lose significance under state law if they are buried or otherwise disturbed — could be misused as precedent in other contexts, causing further harm,” their brief stated.

But the decision also points to a bigger problem within the court system as a whole, she said. “Judges are certainly human. And if they haven’t been trained to recognize implicit bias, societal bias, they just might fall back to what they are comfortable with and what they have been taught,” she said. In this case, “the (appeals) court twisted the definition of a historic structure … Which may show bias against tribes, their resources, and ways of knowing,” she later wrote in an email. (A 2020 amendment to SB35 means that there will be more protections for tribal cultural resources in the future.)

Perhaps more importantly, while the Berkeley Shellmound is part of a historical site, it continues to hold contemporary meaning to Gould and the other tribal members who to this day hold ceremonies and prayers there. In her biggest dreams, she or the city would be able to buy the property and turn it into a green space, a memorial of sorts. “It’s a place that we should all revere, and it should have the same protections as modern-day cemeteries,” she said.

Jessica Kutz is an assistant editor for High Country News. Email her at [email protected] or submit a letter to the editor.

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