SB 18 Productive Consultation

Productive SB 18 Consultation: 

Productive SB 18 Consultation Michelle LaPena, Esq. LaPena Law Corporation 2001 N Street, Suite 100 Sacramento, CA 95814 (916) 442-9906 www.lapenalaw.com

7 Sacred Sites Protection Principles: 

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 Tribe’s 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.

SB 18 Definition of Consultation: Cal. Gov’t Code 65352.4: 

SB 18 Definition of Consultation: Cal. Gov’t 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 party’s sovereignty. Consultation shall also recognize the tribes’ potential needs for confidentiality with respect to places that have traditional tribal cultural significance.

Pre-Consultation Issues: 

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

LETTER FROM COUNTY OF RIVERSIDEDear Tribal Chairman:On 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 information:1. 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.: 

LETTER FROM COUNTY OF RIVERSIDE Dear Tribal Chairman: On 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 information: 1. 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.

County Resolution- Riverside County RAC: 

County Resolution- Riverside County RAC RECOMMENDED MOTION: That the Board of Supervisors: 1. 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.

SB 18 Consultation Process- Initiate Consultation: 

SB 18 Consultation Process- Initiate Consultation

SB 18 Consultation Process- Possible Scenario: 

SB 18 Consultation Process- Possible Scenario

Issues to Consider During Consultation: 

Issues to Consider During Consultation

Developing an understanding of the places and/or resources at issue: 

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?

Confidentiality: 

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?

Identify tribal/local government resources: 

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.

Example Outcomes: 

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.

Open Space Element: 

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

Potential Outcomes for Known Sites of Importance: 

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

Questions?: 

Questions? Thanks for your participation!