By Dorothy Alther, Executive Director
Protecting Native American cultural resources comes in two forms: “proactive” and “reactive.” I encourage tribes to engage in both approaches.
Proactive: Sign up for consultation early when a project or undertaking is in the planning stages. Early consultation allows you to build in mitigation measures, tribal monitoring requirements, and protocols for inadvertent discoveries. But state cultural resource protection laws require you to take proactive steps before consultation is required by a state agency, county, or city.
1. SB 18, passed on 2004, requires counties and cities who are proposing amendments to their “General Plan,” contact and consult with any tribe that might or does have cultural sites or places that could be impacted by the amendments. Bringing tribes into the process early will provide better guidance (and avoid less legal challenges later) for the city and county in the amendment process.
In order for your tribe to avail itself of this early consultation process, you must contact the Native American Heritage Commission (NAHC) and inform them that you want to be consulted with pursuant to SB 18. You will also need to provide the name of the tribal contact person and provide maps or some other descriptive means that identifies the area(s) that are important to the tribe. All tribal maps and designated areas provided to NAHC are kept confidential.
2. AB 52, passed in 2014, is more expansive than SB 18 and has early tribal consultation as its centerpiece. The law requires state agencies contemplating an undertakings on state lands to consult with tribes when the agency has issued a: (a) Notice of Preparation; (b) Notice of Mitigated Negative Declaration; or (c) Notice of Negative Declaration for a project. However, no consultation is required unless you have submitted in advance a written request to the agency that you want to be contacted and consulted with when an undertaking or project is being proposed in an area defined and described by the tribe.
3. “Most Likely Descendent (MLD)” make sure that your tribe has submitted to the NAHC the tribal contact person who will act as the tribe’s MLD for inadvertent discoveries of cultural resources.
Reactive: What do you do if a state agency, county, or city notifies you they have inadvertently unearthed or uncovered Native American remains or artifacts during project development? Under the law, work on the project must cease, and the government entity must contact the NAHC to determine who the tribal MLD is for the area where the remains were discovered.
You need to be ready to work with the government entity and formulate a plan on what the tribe wants done. Some recommendations: (a) dispatch tribal monitors and your archaeologist (if possible) to the site to protect the area; (b) develop a repatriation plan on how and when the human remains will be given to the tribe; (c) determine the disposition of the remains once they are turned over to the tribe; (d) make arrangements on where the remains will be stored until final disposition can be completed. Ensure tribal monitors are kept on-site during the remaining course of the project.
CILS is here to assist you with protecting your cultural resources. Contact your local CILS office for more information and assistance.