Five days after celebrating legislation that formally apologized to California’s Native people and strengthened Tribal consultation, California Governor Gavin Newsom vetoed two bills that would have made Tribal interests legally consequential when the state acts.
AB 1881, the California Indian Freedom Act, would have established an enforceable religious freedom standard for Native sacred sites on specified state lands. AB 2218 would have required state water agencies to address historical inequities, protect Tribal beneficial uses, consult during certain investigations of claimed water rights, and provide mediation and a temporary pause in state action for some disputes.
Both bills received overwhelming legislative support. The Senate approved AB 1881 by a vote of 29–1, with Senator Roger Niello casting the only no vote, and the Assembly concurred 65–0. AB 2218 passed both chambers without a single no vote, 28–0 in the Senate and 56–0 in the Assembly.
The two vetoes expose the limits of California’s willingness to make its Tribal commitments legally enforceable. The state will apologize, consult, and enter voluntary partnerships with Tribal Nations, but when legislation would constrain the state’s unilateral authority through consent, strict scrutiny, injunctions, mediation, or a temporary stay, Newsom draws the line.
AB 1881 Would Have Rejected a Central Fiction of Sacred Sites Law
Federal law can permit the government to destroy a sacred place, making the religious practices tied to it impossible, without finding that the government has substantially burdened religion.
In Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court allowed a road and timber project on federal land even though the government’s own study concluded that it could devastate religious practices dependent on the affected landscape. Because the government hadn’t forced Tribal practitioners to violate their beliefs, penalized their religious conduct, or denied them a governmental benefit, the Court found no constitutional violation.
More recently, the Ninth Circuit held in Apache Stronghold v. United States that the federal government could transfer Oak Flat for a mining project expected eventually to destroy the Western Apache sacred site without imposing a substantial burden cognizable under the Religious Freedom Restoration Act. The Supreme Court declined review in 2025. Justice Gorsuch, joined by Justice Thomas, dissented, arguing that preventing a religious exercise burdens it completely.
AB 1881 would have rejected that narrow understanding of religious injury on the state lands it covered. The bill expressly recognized that denying access to a sacred place, desecrating it, materially altering it, or destroying it can substantially burden Native religious exercise. When the state imposed such a burden, it would have been required to demonstrate that its action furthered a compelling governmental interest through the least restrictive means.
The bill also defined religious exercise to include land- and water-based practices, gathering traditional foods and plants, and practices whether or not compelled by, or central to, a system of religious belief. Native religions would not have needed to conform to a church-centered model before California law recognized them as religions.
A California Tribe, including a non-federally recognized Tribe, would have had standing to assert a violation as a claim or defense in a judicial or administrative proceeding. Remedies would have included declaratory and injunctive relief, equitable remedies, and reasonable attorneys’ fees and costs.
The Bill Had Already Been Narrowed
In his veto message, Newsom said AB 1881 was “overly broad,” would disrupt the state’s ability to manage its lands, and could “delay or halt critical government functions.”
However, the California legislature had already substantially narrowed the bill. It applied only to state agency actions involving land owned by California or a state agency. It didn’t apply to city, county, district, or private land. It excluded land used for public infrastructure or services, land authorized for private use or development, and the State Water Resources Control Board’s authority over water diversion, water use, and water quality. It also protected actions necessary to address imminent threats to public health and safety.
Nor did AB 1881 transfer title, confer general Tribal jurisdiction over public land, or give Tribes an unlimited veto. Before undertaking a project on state land that risked destroying or altering a known sacred site, cutting off access to it, or causing long-term environmental degradation affecting religious practice, a state agency would have been required to seek and document a Tribe’s free, prior, and informed consent. But an agency could treat a failure to respond within a designated reasonable period as consent. If a Tribe objected, the bill provided only that the agency could request consultation. And the statutory text did not clearly provide a separate cause of action to enforce the consent provision.
What remained after the amendments was the bill’s central commitment. Consultation alone is inadequate when the state proposes to damage or destroy a sacred place. At some point, the state should have to justify the harm under an enforceable legal standard.
In practice, Newsom rejected the legislation that would have put that premise into enforceable law. His veto message instead points to consultation requirements, environmental review, repatriation law, agency policies, and Tribal co-management. Those processes may be valuable, but they generally preserve the state’s final authority. Strict scrutiny, injunctive relief, and attorneys’ fees would have subjected that authority to judicially enforceable limits.
AB 2218 Presented the Same Choice in Water Policy
Newsom’s veto of AB 2218 followed the same pattern.
The bill declared that California water policy should address historical inequities affecting Tribes and protect Tribal beneficial uses of water. It would have required the State Water Resources Control Board, on a Tribe’s request, to consult with that Tribe when investigating a claimed riparian or appropriative right to water within the Tribe’s ancestral territory. It also would have created a mediation process for specified disputes and temporarily stayed some state actions while mediation occurred.
Newsom agreed with the objective of addressing historical inequities and respecting Tribal water rights. He nevertheless concluded that the bill’s “broad scope” could interfere with the Water Board’s existing processes. He said mediation would duplicate administrative review, the temporary stay could impair protection of senior water right holders, and a proposed advisory committee would overlap with existing Tribal engagement structures.
But the supposed duplication was part of the bill’s purpose. Existing processes leave the same agency that initiates an investigation or enforcement action in control of the dispute. Mediation would have created a different forum. A temporary stay would have prevented the state from changing conditions on the ground before that process concluded.
AB 2218 didn’t give Tribes control over California water administration; it would have required the state to slow down and engage differently when Tribal interests in water were at stake. But even that limited restraint was too much for the Governor.
Recognition Without Constraint
On September 25, Newsom signed a package of bills advancing Tribal priorities. The package made Native American Day a paid state holiday for state workers, extended an apology for California’s historic atrocities against Native peoples to the legislature and the courts, made the Governor’s Office of Tribal Affairs permanent, and strengthened statewide consultation structures.
Those actions have value. But yesterday’s vetoes reveal the difference between recognizing Tribes and allowing them to constrain state power.
AB 1881 would have required the state to defend substantial burdens on Native religion under strict scrutiny and would have enabled Tribes to seek injunctions. AB 2218 would have required mediation and temporarily restrained state action in certain water disputes. One bill moved beyond consultation toward consent. The other moved beyond agency review toward a process that could interrupt agency action. Newsom vetoed both.
The contrast is especially stark because AB 1881 directly confronted harms the state’s apology acknowledges. California helped remove Native peoples from their lands, suppress their religions, and place sacred places under state control. AB 1881 recognized that the state’s resulting ownership is not a neutral starting point. It asked California to justify actions that would obstruct or destroy religions that remain inseparable from those places.
Newsom’s veto preserves the opposite arrangement. The state may recognize its history, invite Tribal participation, and voluntarily share aspects of management. But it retains the legal authority to decide when consultation ends and state action begins.
The vetoes need not be the final word. AB 1881 received 65 votes in the Assembly and 29 in the Senate. AB 2218 received 56 and 28. Those totals exceed the two-thirds majorities required to override a veto, although an override would require new votes in both chambers.
Whether legislators will take those votes is another question. California’s legislature hasn’t overridden a governor’s veto since 1979, and both chambers have adjourned for final recess. Legislative leaders would have to bring members back before the session ends on November 30. The question is whether legislators meant what their overwhelming votes appeared to say, or whether their support extended only as far as the Governor was willing to allow.
California has apologized for the historic exercise of unilateral power over Native peoples and their lands. Newsom has now declined to surrender even a limited measure of that power. The Legislature still has the constitutional authority to do otherwise.
