Productive SB 18 Consultation

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Productive SB 18 Consultation

• Michelle LaPena, Esq.
• LaPena Law Corporation
• 2001 N Street, Suite 100
• Sacramento, CA 95814
• [phone]
• www.lapenalaw.com

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7 Sacred Sites Protection Principles

• The goal of any proposed bill To increase
  protection for Indian cultural and sacred sites.
  
• 1. Acknowledge and respect a Tribes cultural
  and spiritual values and rights.
• 2. Provide the earliest possible notice to
  Tribes.
• 3. Provide meaningful consultation with Tribes.
• 4. Protect confidentiality of site records.
• 5. The Tribe determines the importance of the
  place.
• 6. Tribal partnership in management and
  protection.
• 7. Process for acquisition or conservation of
  cultural places.

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SB 18 Definition of Consultation Cal. Govt
Code 65352.4

• 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.
• Consultation between government agencies and
  Tribes shall be conducted in a way that is
  mutually respectful of each partys sovereignty.
• Consultation shall also recognize the tribes
  potential needs for confidentiality with respect
  to places that have traditional tribal cultural
  significance.

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Pre-Consultation Issues

• Establish internal protocols for tracking notices
• Tribe will need a system for tracking SB 18 and
  other notices from local govs.
• Tribe could develop its own maps to determine
  which notices are significant.
• Identify tribal and local representatives
• Initial contact should be highest officer
• Decide who will have responsibility and who will
  have authority to speak for your government.
• How will multi-tribal issues be handled?

• Protocols for external communications
• Send a letter of Introduction to other
  governments
• How do the various parties want to be contacted?
  
• What time constraints are present? (tribe can
  only meet after working hours, etc)
• Get acquainted with issues of concern for each
  party
• Tribal Do you have to start from square one? If
  so, do it!
• Local Share information about local concerns
• Hold meetings in tribal and local offices

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LETTER FROM COUNTY OF RIVERSIDEDear Tribal
ChairmanOn September 29, 2004, Governor
Schwarzenegger signed Senate Bill 18 - Tribal
Consultation Guidelines, into law. SB 18 requires
that all cities and counties notify and consult
with California Native American Tribes about
proposed local land use planning decisions for
the purpose of protecting traditional tribal
cultural places and sacred sites. This
legislation took effect on March 1,
2005.Riverside County is committed to the
spirit of this legislation and desires to exceed
the requirements of SB 18 by forwarding all
development proposals to you for your review and
comments. In order to achieve meaningful
consultation on all development projects, the
County would like to request the following
information1. A map showing the Tribe's
historic range within Riverside County. This map
will be used to assure that all development
proposals within your historic range are
forwarded to you for review and comment.2. The
name, mailing address, telephone number and fax
number for the person within the tribe who will
be responsible for receiving the development
proposals and providing Tribal comment to the
County. 3. A list of names and phone numbers
of the Tribal members who should be invited to
all official consultation sessions with the
County.4. Any special requirements that the
Tribe may have that would allow a more meaningful
consultation process to proceed.
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County Resolution- Riverside County RAC

• RECOMMENDED MOTION That the Board of
  Supervisors1. Direct the Planning Department
  to establish a County of Riverside Tribal
  Traditional Resources Advisory Committee to
  advise the department on policy issues and
  provide appropriate advice and information
  pertaining to burials, historic Native American
  sites, cultural places and sacred sites.2.
  Direct the Planning Department to develop a
  Cultural Sensitivity Training Program that will
  be adhered to by all cultural resource managers
  and professionals who perform work within
  Riverside County.
• See handout for body of resolution.

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SB 18 Consultation Process- Initiate Consultation
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SB 18 Consultation Process- Possible Scenario
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Issues to Consider During Consultation
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Developing an understanding of the places
and/or resources at issue

• What is the importance to the Tribe?
• What protection measures are being sought?
• Is there a pressing need for access or
  protection?
• Does the resource require certain management to
  be protected?

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Confidentiality

• Will the Tribe share resource materials if they
  are protected from disclosure? SB 922 Protects
  information shared in consultations.
• Who in the Tribe can share relevant information
  about the site?
• Does the local government have protocols for
  handling and keeping the records confidential?
• Will the Tribe agree to allow landowner
  involvement in the consultations?
• Are Non-Disclosure Agreements necessary?

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Identify tribal/local government resources

• Does the Tribe and local government have a strong
  working relationship or does it need to be
  established?
• Provide time to share the history of the Tribe.
• Set a reasonable timeframe for reaching an
  agreement, acknowledging any restraints on
  meeting times, as well as general plan timeframe.
• Establish a reasonable timeframe for ongoing
  communications based on resources available.

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Example Outcomes

• General policy language can be included in the
  Local Plan to acknowledge the presence of tribal
  resources in the Plan area without specific site
  identification.
• Specific language can be included to restate the
  law on treatment of Native American human remains
  to ensure tribal monitoring is secured.
• Specific language can be included to allow for
  tribal monitoring where grading will occur in an
  area of significance to a Tribe.
• Acknowledge that a Tribe may know where human
  remains will be found.
• Designate cultural sites as Open Space.

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Open Space Element

• Request language be added to the Open Space
  Element
• Open space for cultural resource preservation
  including open space for the protection of
  places, features, and objects described in
  Section 5097.9 and 5097.995 of the Public
  Resources Code.
• For purposes of protecting sensitive sites
• Recording provides certainty
• Preservation Plan may accompany easement

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Potential Outcomes for Known Sites of Importance

• Cultural Resources Treatment and Tribal
  Monitoring Agreement.
• Formalizes procedures for treatment of known
  resources, inadvertent discoveries and provides
  for tribal monitoring where such resources are
  present.
• Open Space Easement.
• For purposes of protecting sensitive sites
• Recording provides certainty
• Preservation Plan may accompany easement

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Questions?

• Thanks for your participation!