Indians and their supporters have vowed to continue their struggle to save the sacred site of Puvungna on the Cal State Long Beach campus. This renewed determination comes in response to an unfavorable court decision which would allow the University to build a strip mall on the land.
On Thursday, April 6, Judge Abby Soven ruled in favor of the CSU motion to dismiss the case based on the CSU contention that the law protecting Indian sacred sites on public land is unconstitutional since it violates the principle of separation of church and state.
The decision will be appealed. Attorney Fred Woocher, one of the lawyers representing the Indians, is quoted in the Press-Telegram as saying: "We think it's flat out wrong, and we intend to appeal."
The law is question is a section of the Public Resources Code which charges the Native American Heritage Commission, a state agency appointed by the Governor, with preserving Indian sacred sites on state owned land in California. According to Judge Soven's decision:
"Public Resources Code section 5097.9 prohibits any public agency or private entity from doing anything to "interfere with the free expression or exercise of a Native American religion" as provided in the United States and California constitutions or "cause severe and irreparable damages to any Native American" cemetery, place of worship, religious site or shrine. Section 5097.94 subdivision (g) provides that the Native American heritage commission shall have the right to "bring an action to prevent. . .damage to, or assure appropriate access for Native Americans" to cemeteries, places of worship, religious sites or shrines."
"Section 5907.94 subdivision (g), as applied, violates the Establishment clause of the First Amendment and the no-preference clause of the California constitution. Subdivision (g) relates only to religious items, locations, or practices. The Code sections totally flunk the Lemon test: subdivision (g) has no secular purpose; the "principal and primary" effect--indeed, the only effect--is to advance Native American religion over any other organized religion or no religion; the section impermissibly entangles government with religion. Even assuming a neutral interpretation of subdivision (g) is possible, the complaint as filed asks for relief that constitutes a total prohibition against any "disturbance" of the land and demands that defendants be prevented from barring "appropriate Native American access to the land," which demand constitutes a total dedication of the property to Native American religious purposes."
Opponents say the ruling flies in the face of common sense. They point out that the Indian plaintiffs are represented by the ACLU, which is well known as the premiere organization fighting to preserve the separation of church and state. To think that the ACLU would violate this historical commitment is as absurd as the idea that Native American religion is somehow becoming an "Establishment" religion.
The Indian plaintiffs stress that they have never asked for exclusive use of the land, only that it not be destroyed. No objections were raised to earlier uses of the land. When the Organic Gardens were still open the land was used to grow food for the poor, for educational purposes by Art and Biology classes, and for summer day camps for children.
When the land was placed on the National Register of Historic Places, the University itself modified its Campus Master Plan to preserve the site, and put up a sign which reads: "Gabrielino Indians once inhabited this site, Puvungna, birthplace of Chungichnish, law-giver and god."
The lawsuit points out that the law in question only gives Native American burial grounds and sacred places the same protection that white cemeteries and churches enjoy. The state of California protects Missions and other Christian buildings within the state park system.
Plaintiffs further note that they are being represented on a pro bono basis by attorneys from the ACLU, the Center for Human Rights & Constitutional Law, and the law firm of Strumwasser & Woocher. By contrast, the University has spent hundreds of thousands of taxpayers' dollars on the legal case alone. Indians do not see the Puvungna case as an "establishment" of Native American religion. Rather, public funds are being used to attack Native American religion.
Militant Indian organizations have offered to occupy the Puvungna site to protect it from developers and archaeologists. The court injunction however, remains in effect, and this injunction prohibits the University from any kind of digging or trenching and from barring access to the land. Judge Soven's ruling was stayed for 60 days--until about the middle of June--to allow the plaintiffs time to appeal. The injunction is expected to be extended throughout the appeal process.
The controversy began in 1992 when campus officials decided to pave the Organic Gardens on the CSULB campus for a Temporary Parking Lot. As gardeners mobilized to save the gardens, they learned that the entire site was listed on the National Register of Historic Places as the last remnant of Puvungna, a trade and ceremonial center of the Gabrielino Indians. Campus officials had earlier agreed to preserve the site, and news that the University was claiming that "no cultural resources" existed on the site evoked a storm of protests from Native Americans and state officials.
Turning a deaf ear to the objections of the Indian community, Cal State officials planned a massive archaeological dig which would have involved digging 20 meter long trenches every 20 meters over the entire site with a backhoe. All plans for archaeology were stopped when the Native American Heritage Commission joined individual Indian plaintiffs to obtain a Preliminary Injunction until the case can be heard in court. The Preliminary Injunction blocks all excavation for archaeology or development and guarantees Native American access to the land for spiritual purposes.
By the time the case reaches the appellate court, it will have been over two years since Juane–o Indian elder Lillian Robles and other native people began their prayer vigil to protect Puvungna. It will have been over two years since the Native American Heritage Commission ruled that "any digging, excavation, or grading would result in damage to the sacred/religious site" and recommended that the site be protected from any development.
Although Cal State officials view the case in terms of University "property rights," the rest of the world sees it in terms of human rights. The American Anthropological Association has written to Cal State Long Beach warning that the destruction of Puvungna "would and should receive active state, national, and international condemnation."
Yet campus officials persisted in their plans and the bill for Cal State Long Beach's "Indian War" continued to grow. The total acknowledged by Cal State officials is over $1.5 million, including $250,000 allocated from the General Fund to help pay the campus share of the legal expenses. The General Fund is the state allocation from the taxpayers and student fees and is intended to be used for instruction and instructional support.
It now appears that all of this money has been spent in pursuit of a project that is no longer under consideration. The West Village Center was proposed in 1992 by then President Curtis McCray who has since left the University. CSULB's new president, Robert C. Maxson inherited the problem after it was already in litigation and is less than enthusiastic about the proposed strip mall.
President Maxson is quoted in the Press-Telegram as saying "I have absolutely no interest in a retail center on that property or any other university property. I philosophically don't think the campus should be commercialized. We're an educational institution."
More recently, Maxson told the CSULB Academic Senate that he would like to preserve the land as open space, to take down the fence, and to clean up and beautify the site so that it is an asset to the campus. But Maxson stressed that he would not--or could not--do anything to tie the hands of future administrations.
Maxson's own hands would have been tied had the land been already leased to developers. The original plans for the West Village Center called for completion of Phase I construction by June 1994. Had it not been for the vigilance of the Indian community, the land would no longer be available for any educational purposes other than strip mall marketing . Maxson's most recent statements represent a major step forward and may open the way for cooperation between the University and the Indian community on the issue of Puvungna.
Perhaps the new administration is at last willing to listen to the local community on the issue of Puvungna, the Indian sacred site that campus officials call the "Bellflower Property." Perhaps CSULB is now willing to consider returning to its earlier Master Plan for the site which would have preserved the land with an arboretum featuring native plants and serving as a laboratory for the natural sciences and a greenbelt open area for the campus. Perhaps a small Indian village could be built on the site as suggested in the original National Register nomination papers. Perhaps an Indian cultural and educational center could be established to serve not only Indians but also school children throughout the Long Beach area. Such uses would preserve the spiritual value of the site for Native Americans while enriching the educational and cultural life of the entire Long Beach community.
Puvungna has the potential of becoming a place not only of great beauty, but also of great educational value for the University. It is important to let the new administration of Cal State Long Beach know your concerns. Write or call:
Dr. Robert C. Maxson, President
California State University, Long Beach
Long Beach, CA 90840
(310) 985-4121 FAX: (310 985-5584
This document posted: July 18, 1995.
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