Tribal Consultation Policy and Implementation

California Native American Tribes (Tribes) (as defined below) and tribal communities have sovereign authority over their members and territory. Native American heritage, including tribal cultural resources and practices, has remained resilient throughout California’s past, adding to the State’s rich cultural legacy and diversity, and should be preserved. Pursuant to Executive Order B-10-11 (dated September 19, 2011) and AB 52 (Chapter 532, Statutes of 2014), the Delta Protection Commission (Commission) has developed this Tribal Consultation Policy and Implementation memorandum.

The purpose is to:

(a) Affirm Commission recognition that Tribes have used many of the lands, waterways, and resources in the legal Delta, and that these Tribes and their members have unique and valuable knowledge and practices for conserving and using these resources sustainably. Tribes have maintained a constant presence on the landscape and remain stewards of lands and resources in areas of tribal interest. The Commission will approach its interactions with Tribes with due respect for and recognition of the sovereign rights, power, and authority of tribal governments.

(b) Establish a Tribal Consultation Policy to ensure effective, meaningful, and mutually beneficial coordination and communication, and with this policy extend an official standing invitation to Tribes to provide meaningful input regarding programs, projects, plans and activities that may affect tribal communities, cultural and historical places, or lands and waterways under the Commission’s jurisdiction.

Commission Organization

Recognizing the importance of its relationship with Tribal governments and the need for an appropriate level of representation, the Commission Executive Director has designated a Tribal Liaison as the primary point of contact within the Commission for Tribal communications. The Tribal Liaison is authorized to conduct Consultation (as defined below) and advise management and the Commission as to the recommendations agreed on during Consultation prior to Commission final consideration and action on a proposed activity. The Tribal Liaison will ensure the Consultation process and outcomes, including when the consulting parties are not able to reach agreement, are documented for the Commission to consider. In addition to Consultation, Tribes may provide comments or concerns directly to the Commission either in writing or in person at a public meeting.

Definitions

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 the Commission and Tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation shall also recognize Tribes’ potential need for confidentiality with respect to places that have traditional tribal cultural significance (Government Code section 65352.4 and Public Resources Code section 21082.3(c)(1)). To ensure Consultation reflects the official positions of the tribal government, Consultation occurs between the Commission Tribal Liaison and with the Tribe’s Tribal Chair/Council or individual(s) designated in writing by the Chair/Council.

Proposed Activity includes any Commission activity that may have a significant impact on Tribal interests or where collaboration with Tribes will provide meaningful input into Commission projects. For purposes of this Policy, the Commission will consider proposed activities to be: (a) the adoption of regulations of statewide or regional importance; (b) property/land management decisions; and (c) activities for projects including the National Heritage Area planning and implementation, and historical, cultural, or recreational planning.

Legal Delta means all the lands defined as the “Sacramento-San Joaquin Delta” within the Delta Protection Act of 1959 (Water Code section 12220).

Tribal Interests means (a) “Tribal cultural resources,” as defined in Public Resources Code section 21074; (b) Tribal practices including, but not limited to, tribal ceremonies, hunting, fishing, and resource collection; (c) fish, wildlife, and plant resources; (d) water; (e) Tribal lands and other landscapes, and vistas visible from a Tribe’s ancestral territory.

California Native American Tribe includes a Native American Tribe located in California that is on the contact list maintained by the California Native American Heritage Commission, a tribal entity that is on the current website list of the Governor’s Office of the Tribal Advisor, or a federally-recognized California Indian Tribe as listed on the Federal Register.

Commission Policy

The Commission commits to respecting the dignity of Tribes and tribal communities and making a good faith, reasonable effort to understand and consider tribal interests in projects under the Commission’s jurisdiction. These consultations, whether they occur as formal government-to-government Consultation or as informal coordination at the staff level, are meant to foster long-term partnerships with Tribes and serve as opportunities to educate the Commission about tribal cultural resources, help find alternatives or measures to prevent or mitigate further loss of those resources and values, and provide opportunities for tribal interests to be shared with the public through interpretive projects.

The Commission also recognizes there are circumstances when coordination and dialogue would be mutually beneficial to address an issue or concern, program, project, or gather information even when formal Consultation is not required. For informal meetings, such as simple inquiries, coordination on ongoing processes or programs, projects of mutual interest, or other topics, a Commission staff member will be assigned as the informal liaison.

Whether undertaking formal Consultation or informal coordination, the Commission will observe the following Policy Guideline themes of (a) education, (b) confidentiality, (c) communication, and (d) timeliness.

(a) Education: Tribes and the Commission have great potential to serve as resources for one another. Tribes have an abundance of knowledge regarding the values of natural resources, locations of tribal cultural resources, and impacts to these resources caused by development. As such, Tribes offer special expertise that can enhance the Commission’s ability to protect resources under its care.

The Commission can offer substantial knowledge regarding the balancing of competing uses of Delta lands. A combination of tribal knowledge of the State’s resources and the Commission’s skills in balancing competing uses within our jurisdiction will be far more effective for preserving Tribal Interests than either one alone. Additionally, the Commission is committed to the sharing of information and perspectives to foster mutual understanding of each other’s role in managing and providing stewardship, management, and traditional ecological knowledge of the landscape, as well as the Commission’s responsibilities to protect, maintain, enhance, and enrich the overall quality of the Delta environment and economy.

(b) Confidentiality: Preserving California’s tribal heritage requires the consulting parties to protect culturally significant places and objects from disturbance, theft, and vandalism. To avoid these threats, Commission staff and consultants will sometimes need to maintain the confidentiality of information regarding the locations of sacred sites and artifacts, as well as other sensitive information. The Commission recognizes this need and will ensure that the locations of sensitive resources and sites remain confidential as provided by Government Code section 65352.4 and Public Resources Code section 21082.3(c). During Consultation, the Commission will proactively ask Tribes whether there is information that should be kept confidential; Tribes should also inform the Commission of their need to maintain confidentiality.

(c) Communication: Open communication between the Commission and Tribes is essential. Accordingly, the Commission will strive to accommodate the needs of each Tribe that wishes to consult or collaborate.

(d) Timeliness: The Commission will ensure that Tribes receive timely notice of projects under consideration and responses to Consultation requests. For Consultation originating from any project for which a CEQA Notice of Preparation, Notice of Mitigated Negative Declaration or Notice of Negative Declaration are filed, the Commission will follow the requirements identified in Public Resources Code section 21080.3.1. For proposed activities not subject to CEQA, the Commission will begin Consultation as early in the planning process as is feasible once sufficient information is gathered about the scope of the activity and its possible effect on tribal interests. At this time, the Commission will send a letter to the Tribe’s Chairperson or other identified contact person. For inquiries or coordination initiated by a Tribe, the Tribal Liaison will strive to provide an acknowledgement and/or preliminary response within a reasonable period.

The Commission will strive to accommodate Tribes’ needs for information and provide adequate time to review project materials. This may include delivery of information through hardcopy, disc, internet, or other media and scheduling meetings as necessary. Commission staff will coordinate with Tribes to ensure timely Consultation.

Parties’ Rights

Nothing in this policy shall be deemed to limit or expand the rights, duties, sovereignty, or jurisdiction of any Tribe or the Commission. While the Consultation process described by this policy aims to increase coordination, communication, and the ability to find favorable mutual solutions, the process cannot be expected to result in the resolution of all issues. Therefore, inherent in this policy is the right of the Commission and Tribes to elevate an issue of importance to any decision-making authority of another entity, including, where appropriate, the highest levels of State and Tribal government.

Contact Information

If you would like to request Consultation or learn about the Commission, please contact Melinda Dorin, (Tribal Liaison) at melinda.dorin@delta.ca.gov or Delta Protection Commission, Tribal Liaison, 2101 Stone Blvd #240, West Sacramento, CA 95691, (916) 375-4800.

(As Adopted November 21, 2019 by the Delta Protection Commission)