From Emeryville to Berkeley, members of the Ohlone tribe, one of the dominant Native American tribes in the Bay Area, have protested development on what they believe to be sacred land. But according to Phenocia Bauerle, director of the Native American Student Development, the tribe has yet to be federally recognized.

The Gill Tract, located in the city of Albany, is owned in part by the university. Other sections of the tract are occupied by senior housing and the Sprouts Farmers Market that opened on San Pablo Avenue in April. Protests, encampments and litigation have arisen, however, as to what the land should be used for.

“It is not private property — well, it is under the current legal system,” said Hank Herrera, an activist for the Indigenous Land Action Committee, or ILAC, who identifies as Ohlone. “But in the grand scheme of things, it’s stolen land.”

Herrera said the two primary organizing groups associated with the Gill Tract, Occupy the Farm and ILAC, are distinct, but many members participate in both. Occupy the Farm formed and first staged a sit-in on Gill Tract in 2012 to fight for sustainable urban farming. Then, in 2015, it returned once again to protest a court ruling that allowed for the advancement of the development. Later that year, ILAC staged its own sit-in on the tract as well.

Despite protest, the university’s plans for development of the Gill Tract started in 2007 and were finalized in 2014, said campus spokesperson Dan Mogulof in a previous article. The campus, the city of Albany, developers and community members have been involved in public discussion about the property for nearly a decade.

In response to claims that the Gill Tract is sacred land, Mogulof said it is unclear to the campus why activists and protesters did not participate in the years of collaborative planning leading up to the development of the vacant lots.

From Tract to court

The UC Board of Regents initiated a lawsuit in 2012 during the first Occupy the Farm encampments, asserting that the protests were trespassing and inhibiting agricultural research on the land. Ultimately, the regents dropped the lawsuit once the university had regained control of the land in June 2012. 

After three years of legal battles, the California Court of Appeal ruled in favor of the UC development project on the Gill Tract, supporting the project’s Environmental Impact Report, or EIR. The EIR stated that no archaeological or paleontological evidence of life was found on the land prior to its development.

Herrera, however, alleged that evidence of the occupation by Native peoples could have been erased before laws required cities to cooperate with tribes. He cited Senate Bill 18, which was passed in 2004 and states that cities must consult with California Native American tribes before amending “the general plan,” which is a comprehensive, long-term plan for development in a city or county.

“Evidence of occupation by Native people could have been erased by construction … many years before the laws required evidence for tribes,” Herrera alleged. “A lot of the evidence of native presence was gone by the time (Senate Bill 18) was passed.”

After setting up an encampment on Gill Tract to assert that it was Ohlone land, ILAC sent the university a letter in October 2015, invoking Senate Bill 18.

In a previous article, Mogulof responded to ILAC’s letter by stating that Senate Bill 18 does not apply to the situation because a general plan amendment was not required for the Gill Tract development project; therefore, the campus did not have to consult with the Ohlone tribe, Mogulof said. 

The ‘damage done’

The Gill Tract development adds to the “damage done” to the Ohlone tribe, Bauerle said, citing development on shellmounds in Emeryville and in West Berkeley as other instances where Ohlone land was allegedly developed without the tribe’s consent.

“I think it’s very important for developers, whether (or not) it’s the school … to really take into consideration the land that they’re building and historically what that land is used for,” Bauerle said. “Specifically, the very violent history of colonialism.”

“We need more people not only to let us in after we knock on the door, after we’ve beat it down, but also to open the door beforehand to start the conversation.”
—Hank Herrera, activist for the Indigenous Land Action Committee

Bauerle said the Ohlone tribe’s claims often go unheard because the tribe is not federally recognized by the government. Herrera added that the tribe’s lack of a legal status is “another form of erasure.”

According to Herrera, the “genocidal behavior of settler colonists” decimated the Ohlone people, whom he said originally lived in the Bay Area. Proper recognition of the Ohlone tribe is crucial as they struggle for their rights, Herrera added.

Regarding what ILAC could have done differently to prevent the development, Herrera said he would have started the initiative sooner to create a strategy that worked with the university.

But Herrera also noted the significant efforts of his fellow ILAC members — they set up the protests, researched the history of the land and engaged with the law as they fought the Gill Tract development.

“We need more people not only to let us in after we knock on the door, after we’ve beat it down, but also to open the door beforehand to start the conversation,” Herrera said.