Local and Tribal Intergovernmental Consultation Senate Bill 18: Law, Definitions, Process Protection of Traditional Tribal Cultural Places

SB 18 requires cities and counties to contact, and consult with, “California Native American Tribes” before adopting or amending a General Plan, or when designating land as Open- Space, for the purpose of protecting Native American Cultural Places.

SB 18 Intent Language The Legislature finds and declares all of the following (paraphrased): Cultural places have limited measure of protection Tribes have continuing cultural ties to the land and to their traditional heritages. Places are not located on tribal land, not covered by protectionist policies of tribal governments. These places are essential elements in tribal cultural traditions, heritages and identities.

Intent Language Establish meaningful consultation between tribal governments and local governments at the earliest possible point in the planning process Information available early in the planning process to avoid potential conflicts. Enable tribes to manage and act as caretakers of cultural places.

SB 18 Does Not, Is NOT Does not include consultation with state or federal agencies. Does not cover activities on state or federally owned property. Does not include Special Districts, School Districts, Water Districts… Is not part of CEQA statute. Does not directly involve inadvertent discoveries, MLDs, monitors…

Terms Used in SB 18(GC Sections) and OPR’s Consultation Guidelines California Native American Tribe Cultural Places

California Native American Tribe SB 18 requires contact and consultation with “California Native American Tribes that are on the contact list maintained by the California Native American Heritage Commission”. NAHC created a new list specific for SB 18.

What is a “California Native American Tribe” for the purposes of SB 18 Consultation? Intent Language California Native American tribal governments Government to Government Tribal Governments Civil Code A federally recognized California Native American tribe or a non-federally recognized California Native American tribe…….. GC California Native American tribe, with traditional lands within the city or county’s jurisdiction.

NAHC’s SB 18 Tribal Consultation Contact List Made up of entities that can be considered “Tribal Governments” which include: All Federally Recognized Tribes Non-Federally Recognized Tribes that meet minimum criteria (not complete list of criteria): –function as a governmental body –completed petition for recognition by the federal government –documentation that they were formerly recognized. –tribes that are recognized as a Native American tribe by the surrounding community, including other tribes and local governments –tribes who are members of continuously operating historical tribes that were signatories to an unratified treaty –a non-profit organization dedicated to general governance and tribal community well-being and for which the majority of the non-profit’s membership is not represented by any other tribal group.

NAHC’s SB 18 Tribal Consultation Contact List The NAHC has developed a form for local governments to use when requesting a list of Tribes to contact. –Available in the OPR Guidelines & on the OPR and NAHC Web Sites. Tribes should contact NAHC if they have questions about their status on the SB 18 Tribal Consultation Contact List.

Cultural Place Term was created for OPR’s Tribal Consultation Guidelines

Cultural Place SB 18 (GC Sections) refers to “places, features, and objects described in Sections and of the Public Resources Code.” PRC Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine. (Private Lands)

Cultural Places PRC Native American historic, cultural, or sacred site, that is listed or may be eligible for listing in the California Register of Historic Resources pursuant to Section , including any historic or prehistoric ruins, any burial ground, any archaeological or historic site. (public lands) (Talk to the Tribes)

Shasta Mountain

Overview of SB 18 Senate Bill 18 was signed into law in September of 2004 with the main provisions taking effect on March 1, Added 3 Sections to the State Planning Law/GC (Consultation) Amended 5 Sections of State Planning Law/GC (Notice) Amended One Section of the Civil Code (Conservation Easements)

New Government Code Sections State Planning Law GC Consultation: General Plan or Specific Plan adoption or amendment. GC Consultation: Designation of Open Space. GC Definition of Consultation.

Consultation: General Plan Adoption/Amendment GC Prior to the adoption or any amendment to a General Plan, proposed on or after March 1, 2005, the city or county shall conduct consultations with California Native American tribes for the purpose of preserving or mitigating impacts to Cultural Places. Once contacted, Tribes have 90 days to request consultation.

Consultation: Open Space GC On or after March 1, if land designated, or proposed to be designated as open space, contains a cultural place, the city or county in which the cultural place is located shall conduct consultations with the Tribe, if any, that has given notice pursuant to Section for the purpose of determining the level of confidentiality required to protect the cultural place and for the purpose of developing treatment with appropriate dignity of the cultural place in any corresponding management plan.

Consultation: Open Space Designations Land being Designated as Open Space Open Space contains a Cultural Place Tribe has Given Notice pursuant to Purpose of protecting the Confidentiality and treatment of the site in any management plans for the open space.

Definition of Consultation GC For the purposes of Section 65351, , and , “consultation” means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement.

Definition of Consultation, con’t Consultation between government agencies and Native American Tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation shall also recognize the tribes’ potential needs for confidentiality with respect to places that have traditional tribal cultural significance.

Amended Government Code Sections, Civil Code Section GC OPR’s General Plan Guidelines shall contain advice for consulting with tribes. GC day notice of public hearing. GC Provide opportunities during GP preparation/amendment. GC day referral of action. GC Open Space for Cultural Places Civil Code Conservation Easements

OPR’s General Plan Guidelines GC (g) By March 1, 2005, the guidelines shall contain advice for consulting with Native American Tribes for all of the following: (1)The preservation of, or the mitigation of impacts to, places, futures, and objects described in Sections and of the Public Resources Code. (cultural places)

OPR’s GP Guidelines, con’t (2)Procedures for identifying through the Native American Heritage Commission the appropriate Native American Tribes. (3)Procedures for continuing to protect the confidentiality of information concerning the specific identity, location, character, and use of those cultural places. (SB 922)

OPR’s GP Guidelines, con’t (4)Procedures to facilitate voluntary landowner participation to preserve and protect the specific identity, location, character, and use of those cultural places. Guidelines are available on OPR’s Website:

SB 922, 2005 Confidentiality and Public Disclosure Amended the Public Records Act (CPRA) to aid in the protection of information regarding cultural places. Added language to existing exemptions to the CPRA that keeps certain records free from public disclosure.

SB 922, 2005 GC 6254(r) “records of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects described in Section and of the Public Records Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.”

SB 922, 2005 GC “records that relate to archaeological site information and records maintained by, or in the possession of, the Department of Parks and Recreation, the State Historical Resources Commission, the State Lands Commission, another state agency, or a local agency, including the records that the agency obtains through a consultation process between a California Native American Tribe and a state or local agency.”

10 Day Notice of Public Hearing GC (a) When a provision of this title requires notice of a public hearing to be given pursuant to Section or 65091, the notice shall be mailed or delivered at least 10 days prior to the hearing to any person who has filed a written request for notice………….

10 Day Notice of Public Hearing GC 65092(b) As used in this chapter, “person” includes a California Native American tribe that is on the contact list maintained by the Native American Heritage Commission. (Tribes must request this notice to be eligible for Open Space consultation specific to GC )

Provide Opportunities GC During the preparation or amendment of the general plan, the planning agency shall provide opportunities for the involvement of citizens, California Native American tribes, public agencies, ……… and other community groups, through public hearings and any other means the city or county deems appropriate.

45 Day Referral of Action GC (a) Prior to action by a legislative body to adopt or substantially amend a general plan, the planning agency shall refer the proposed action to all of the following entities: (1-7 other entities) (8) On or after March 1, 2005, a California Native American tribe, that is on the contact list maintained by the Native American Heritage Commission, with traditional lands located within the city or county’s jurisdiction.

45 Day Referral of Action, con’t GC 65352(b) Each entity receiving a proposed general plan or amendment of a general plan pursuant to this section shall have 45 days from the date the referring agency mails it or delivers it in which to comment unless a longer period is specified by the planning agency.

Open Space for the Protection of Cultural Places GC (b) “Open-space land” is any parcel or area of land or water that is essentially unimproved and devoted to an open-space use as defined in this section, and that is designated on a local, regional, or state open-space plan as any of the following:

Open Space & Cultural Places, con’t GC 65560(b)(5) Open space for the protection of places, features, and objects described in Section and of the Public Resources Code.

Civil Code Amendment: Conservation Easements Civil Code Section Only the following entities or organizations may acquire and hold conservation easements: (c) A federally recognized California Native American tribe or a non-federally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission to protect a California Native American prehistoric, archaeological, cultural, spiritual, or ceremonial place, if the conservation easement is voluntarily conveyed.

Overview of SB 18 Process Local Government or applicant makes proposal that involves a general plan/specific plan amendment, update or adoption. Local Government contacts the NAHC for list of Tribal contacts. Local Government contacts Tribes regarding the GP/SP amendment or adoption and offers consultation. (GC )

Process Tribe has 90 days to respond and to request consultation. (GC ) Local governments and tribes can agree upon shorter time frames. If a Tribe requests consultation, local government and Tribe engage in consultation for the purpose of preserving a cultural place. Local government sends notice 45 days prior to taking action on the GP/SP adoption or amendment (GC 65352)

Process Local government sends notice 10 days prior to public hearing on the GP/SP adoption or amendment. (GC65092) Tribes must request this notice. Local government makes decision to approve or deny GP/SP adoption, update or amendment.

Building Working Relationships Guidelines discuss Pre-Consultation. Consultation with tribes should be on- going. Local Governments and Tribal Governments may want to meet on a regular basis to discuss common issues/concerns outside of the consultation requirements of SB 18.

Building Working Relationships Local Governments should consider incorporating policies into the General Plan regarding SB 18 and consultation with Tribal Governments for the purpose of protecting Cultural Places. Local Governments may want to work with tribes to develop protocols to be used for the notice and consultation requirements of SB 18.

On-Line Information & Phone #’s Office of Planning and Research (916) Native American Heritage Commission: (916)