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.

High Country News
4 min readJul 23, 2021


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. / Brooke Anderson

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.

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.

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.

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