Chapter 3. Native American Consultation

Headquarters and each of the Districts have staff who are designated specifically to assist in the implementation of Caltrans’ Native American policies and to ensure that Caltrans complies with applicable federal and state laws and regulations concerning Native American cultural issues.

The Headquarters statewide Native American Coordinator (NAC) works in the Native American Cultural Studies Branch of Headquarters' CSO (see Chapter 1 Section 1-3.2 of this volume). The NAC is responsible for:

1. Assisting the Districts, upon request, in all interactions with the Native American Heritage Commission (NAHC), the Office of Historic Preservation (OHP), also known as the State Historic Preservation Officer (SHPO), and all other public agencies, and
2. Providing direction to the Districts on Native American affairs, including transmittal of pertinent legislation and information as it becomes available.

Each District has a designated District Native American Coordinator (DNAC) in the Environmental unit. The DNAC is responsible for ensuring that Native American consultation regarding cultural resources occurs, either by themselves or by other staff, and that documentation of contacts and consultation for cultural resources is included in environmental documents. Consultation is to occur early in a project’s planning stage and continuously throughout the life of a project. Chapter 1 of this volume in Section 1-3.1 District Native American Coordinator also contains information on the DNAC's responsibilities.

Transportation Planning has established a Native American Liaison Branch in Headquarters and Native American Liaisons in the ten districts with federally recognized tribes (i.e., all but Districts 7 and 12). The liaisons assist efforts to establish Caltrans’ government-to-government relationship with tribes.

The California Native American Heritage Commission (NAHC) was established in 1976 by state statute to preserve and protect burial sites and other places of special cultural or spiritual significance to Native Americans. The NAHC, its powers, duties, and responsibilities, are described in California Public Resources Code (PRC) Chapter 1.75 Sections 5097.91-5097.99. Under PRC §5097.95, each state and local agency must cooperate with the NAHC in carrying out its duties under this chapter. Caltrans works cooperatively with the NAHC concerning all Caltrans property and projects that may involve burial sites or elements of cultural or religious significance to Native Americans.

The NAHC consists of nine members, of which at least five are elders, traditional people or spiritual leaders. Members are nominated by a Native American organization, tribe or group, and are appointed by the Governor with the advice and consent of the Senate. The Governor appoints the Commission’s Executive Secretary. A major responsibility of the NAHC is to identify and maintain a catalogue of places of special religious or social significance to Native Americans, and of known gravesites and cemeteries of Native Americans on private lands.

The NAHC is authorized to assist Native Americans in obtaining appropriate access to sacred places on public lands and to aid state agencies in any negotiations with federal agencies for the protection of Native American sacred places on federally-administered lands in California.

Other major responsibilities of the NAHC include:

• Assisting landowners and Native Americans in developing agreements
• Mediating disputes regarding the respectful treatment and disposition of Native American human burials, skeletal remains and associated grave artifacts
• Designating a Most Likely Descendent when Native American human remains are discovered (see Section 3-4.3, this chapter).

The California State Historic Preservation Officer (SHPO) reviews Historic Property Survey Reports (HPSR) and subsequent Section 106 findings for documentation of effective Native American coordination.

The 1992 Amendments to the National Historic Preservation Act (NHPA) provide for a tribe to assume all or any part of the specified functions of the SHPO, if certain criteria are met with respect to tribal lands (NHPA Section 101[d] [2]), and to designate a tribal preservation official, commonly called a Tribal Historic Preservation Officer (THPO).

Functions that a tribe may undertake include advising and assisting federal and state agencies in carrying out their historic preservation responsibilities. Procedures for tribal programs will eventually be outlined in 36 CFR §61.8 and §61.9, currently reserved sections in the July 1, 2005 edition of Part 61.

On August 5, 1996, the Secretary of the Interior granted THPO status to the Yurok Tribe. Since then, eleven more California tribes and the Washoe Tribe of California and Nevada, as of December 2008, have established THPO offices. Caltrans will consult under Section 106 with THPOs on all properties, both tribal and non-tribal within the boundaries of the tribes’ reservations. This consultation also serves the consideration of historical resources under California State law on projects with federal involvement.

The National Association of Tribal Historic Preservation Officers provides a THPO contact list based on information from the National Park Service.

Tribes acknowledged by the federal government to have a government-to-government relationship with the United States and have specific responsibilities, powers, limitations and obligations, are referred to as federally recognized tribes. Federal agencies must consult with these Indian tribes regarding properties of traditional religious and cultural importance. A list of federally recognized tribes is published nearly annually in the Federal Register, and the Bureau of Indian Affairs regularly updates this list on its webpage.

The Bureau of Indian Affairs (BIA) is responsible for the administration and management of lands held in trust by the United States for American Indians, Indian tribes, and Alaska Natives. In California, lands held in trust, generally are the rancherias and reservations, the Washoe Tribes’ Woodsford Community (Alpine County), and casino lands.

When an archaeological investigation is planned on a reservation or rancheria, the BIA is involved in issuing permits, unless the reservation or rancheria has adopted regulations that do not require BIA involvement.

When a county coroner contacts the NAHC upon the discovery of human remains likely to be Native American, the NAHC designates a Most Likely Descendent, who is either an individual(s) or a tribe. Caltrans confers with the Most Likely Descendent on the respectful treatment and disposition of remains discovered during any of its activities.

Traditional cultural leaders are Native Americans who are acknowledged by their tribe, group, or community as having traditional knowledge of their culture and ancestral area.

The SHPO, Indian tribes, local governments and applicants for federal assistance, permits, licenses, and other approvals are entitled to actively participate as consulting parties during Section 106 process. Other individuals and organizations with a demonstrated interest in the project (e.g., " the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties.") may participate as consulting parties in the Section 106 process. However, their participation is subject to approval by the responsible federal agency.

The Native American Monitor is a liaison between Caltrans and the local Native American community, with whom Caltrans may contract on a project-by-project basis. The Monitor participates and obtains first hand knowledge of archaeological excavations and construction in areas (as agreed upon in consultation) that are known to have cultural sensitivity or have the potential for cultural sensitivity. The Native American Monitor should be knowledgeable about his or her culture and its traditions, and be familiar with archaeological practices, as well as federal and state laws and regulations regarding Native American cultural concerns.

The 1992 amendments to the National Historic Preservation Act (NHPA) enhance the recognition of tribal governments’ roles in the national historic preservation program, including adding a member of an Indian tribe or Native Hawaiian organization to the Advisory Council on Historic Preservation (ACHP).

The NHPA amendments:

• Clarify that properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined eligible for inclusion in the National Register
• Reinforce the provisions of the Council’s regulations that require the federal agency to consult on properties of religious and cultural importance.

The 1992 amendments also specify that the ACHP can enter into agreement with tribes that permit undertakings on tribal land and that are reviewed under tribal regulations governing Section 106.

Regulations implementing the NHPA (36 CFR §800) state that a federal agency (Federal Highway Administration [FHWA] and Caltrans acting on its behalf) must consult with any Indian tribe that attaches religious and cultural significance to historic properties that may be affected by an undertaking, regardless of location. For any federal undertaking that occurs on or affects historic properties on tribal lands, the THPO, or if a THPO is not designated, the tribal representative, are signatories, along with FHWA – and if participating, the SHPO and/or the ACHP – to any Section 106 Memorandum of Agreement.

Section 4(f) of the U.S. Department of Transportation Act of 1966 and the federal regulations that implement Section 4(f), 23 CFR §774, apply to historic properties that are listed or determined eligible for inclusion in National Register. This also includes any properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that are National Register listed or eligible. See Chapter 2 of this volume, Section 2-4.8 for a discussion of Section 4(f).

The National Environmental Policy Act (NEPA) requires agencies to consider both positive and negative effects of their actions on the environment, including consideration of the broader cultural environment beyond historic properties and beyond place. This includes consideration of social cohesion, relation of community to patterns of local land use, social institutions, behavior, community values, lifeways, and beliefs and would include Native American concerns in these categories.

The Archaeological Resources Protection Act of 1979 (ARPA) and implementing regulations require landholding federal agencies to notify federally recognized Indian tribes before a permit is issued for archaeological excavation on sites of religious or cultural importance to them in national parks, wildlife refuges, or forests, or on Indian lands.

Uniform rules and regulations were published by the Departments of the Interior (43 CFR §7), Agriculture (36 CFR §296), and Defense (32 CFR §229), and the Tennessee Valley Authority (18 CFR §1313) in the January 6, 1984 Federal Register. Similar regulations were published for implementing ARPA on Indian lands (25 CFR §262) in the December 13, 1993 Federal Register.

The regulations also state that the federal agency also may notify any other Native American group known by the agency to consider the sites to be of cultural or religious importance. The intentional excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from federal lands and tribal lands must follow both the requirements of ARPA and the Native American Graves Protection and Repatriation Act (NAGPRA). The BIA will issue any ARPA permits needed for excavation on private lands within the exterior boundaries of Indian reservations. Caltrans must obtain the appropriate permits whenever excavation is planned on federal or Indian Lands. Chapter 5 of this volume, Section 5-11 contains more information on ARPA and other permits and the process for obtaining them.

The Native American Graves Protection and Repatriation Act (NAGPRA) became effective November 16, 1990. NAGPRA addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to human remains and certain cultural items with which they are affiliated. The Act directs federal agencies and museums to identify, in consultation with Native Americans, the cultural affiliation of Native American human remains and associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, in holdings or collections under their possession (i.e., physical custody) or control (i.e., having sufficient legal interest). Ultimately, the intent is to repatriate the human remains and other cultural items to the appropriate lineal descendants or tribe.

The Act also statutorily establishes Native American right to ownership of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony which are excavated or discovered on Federal or tribal lands after November 16, 1990. A Review Committee, also established by the Act, determines the disposition of either unclaimed or unaffiliated human remains or cultural items, and reviews disputed claims. The committee includes three Native Americans, three scientific/museum representatives, and one general member. The legislation forbids the participation of federal employees on the Committee.

The regulations (43 CFR §10) for carrying out the Act were published in the Federal Register on December 4, 1995. The regulations establish definitions and the consultation procedures for lineal descendants, Indian tribes, Native Hawaiian organizations, museums and Federal agencies to follow to carry out the Act. “Recommendations Regarding the Disposition of Culturally Unidentifiable Human Remains and Associated Funerary Objects” were published in the Federal Register on June 8, 2000.

NAGPRA only applies to FHWA when a Federal-aid project is located on tribal or Federal lands. Since FHWA does not control or possess any collections, the repatriation provisions of NAGPRA for collections obtained prior to 1990 do not apply to FHWA. Caltrans, however, is working with universities on repatriation of human remains and associated items recovered from collections generated by Caltrans activities. Most of the collections with human remains are those obtained prior to 1976. After 1976, Caltrans worked with Most Likely Descendents pursuant to California law on the respectful treatment and disposition of human remains. For on-going or future projects, FHWA will reimburse costs associated with inventory, identification, and repatriation as an environmental mitigation expense.

In 1978, the U. S. Senate and House of Representatives recognized that the passage of laws meant to conserve and preserve natural species and resources unintentionally impinged on the free exercise of religion for Native Americans. These laws limited Native Americans’ access to sacred sites and prohibited the use and possession of sacred objects necessary to practice their religion. The House and Senate passed a joint resolution which states that, “. . . henceforth, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites”.

From this joint resolution, came the American Indian Religious Freedom Act of 1978 (AIRFA) [P.L. 95-341] and Amendments of 1994 [P.L. 103-334]. AIRFA states, “it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”

This Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations from 1994) directs federal agencies to develop an agency-wide environmental justice strategy that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. The Executive Order (E.O.) created an Interagency Working Group to offer consistent guidance to federal agencies in developing the administration, interpretation, enforcement, and research of an environmental justice strategy to encourage cooperation and coordination among the agencies conducting research, and to hold public meetings for the purpose of fact finding, receiving public comments, and conducting inquiries concerning environmental justice. The E.O. directs federal agencies to use existing data systems and develop cooperative agreements with state, local, and tribal governments in order to share information and to avoid unnecessary duplication of efforts.

President Clinton signed E.O. 13007 on May 24, 1996, ordering federal agencies managing federal lands to implement procedures to:

• Accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners
• Avoid adversely affecting the physical integrity of such sacred sites
• Ensure that reasonable notice is provided of any proposed action that may restrict future access or use or could adversely affect the sites

The agencies were to report to the President any necessary changes to facilitate meeting these requirements and any procedures identified to facilitate consultation with appropriate Indian tribes and religious leaders and the expeditious resolution of disputes relating to adverse agency action on such sites on Federal lands. Two elements of the E.O. that are considered problematic: (1) the definition of a sacred site as a “narrowly delineated”, i.e., small, bounded location, and (2) the requirement that tribal leaders tell the land agency about the site, at the risk of alienating the tribe’s traditional practitioners. See also the ACHP’s publication, “The Relationship Between Executive Order 13007 Regarding Indian Sacred Sites and Section 106.”

On November 6, 2000, President Clinton signed Executive Order 13175 regarding consultation and coordination with Indian tribal governments that directs federal agencies to establish meaningful consultation and collaboration with tribal officials in the development of federal policies that have tribal implications; strengthen the United States government-to-government relationships with Indian tribes; and reduce the imposition of unfunded mandates upon Indian tribes. Executive Order 13175 supersedes Executive Order 13084 (1998) previously signed by President Clinton.

U.S. Transportation Secretary Rodney E. Slater signed U.S. DOT Order 5301 (Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes) on November 16, 1999. The Order calls on agencies of the U.S. DOT to build more effective working relationships with Native American tribal governments and to provide increased opportunities for Native Americans to participate in transportation programs. The stated purpose of the Order is “[T] o ensure that programs, policies and procedures administered by the DOT are responsive to the needs and concerns of American Indians, Alaska Natives, and tribes.”

This section summarizes federal guidelines specifically as they relate to Native American concerns.

This Handbook incorporates new and previous ACHP guidance on the requirements under Section 106 to consult with Indian tribes that attach religious and cultural significance to historic properties that may be affected by a federal undertaking. The guidance provides a brief synopsis of the meaning of government-to-government relationships and the relevant federal statutes pertaining to historic preservation, natural resource protection and cultural resource protection, expands upon the role of THPOs in the Section 106 process, and outlines the principles established in the regulations for consultation. Guidance on conducting consultation or on consultation in general, and specific references to consultation during the Section 106 review process’s four steps (initiation, identification, assessment, and resolution) is provided in a “commonly asked questions and answer” format. The distinctions, and similarities, of the Section 106 process “on” tribal lands and “off” tribal lands are discussed. Tools and tips for successful consultation also are presented.

Although dated, this Handbook still is cited and is the “foundation” for ACHP archaeology guidance, which now is provided in a Web-based interactive guide.

In the review of projects involving archaeological properties, the ACHP ensures that all due consideration is given for any non-archaeological historical or cultural values the property may represent. For example, if an archaeological property also is valuable to a local community for cultural reasons, appropriate weight to this value will be given in decision making (Part II, Section IV). This guidance also notes that archaeological excavations should “relate positively to non-archaeological concern with the area and its archaeological properties,” including religious and other cultural concerns of Native Americans (Part III, Section XII). Directly impacting a site is an adverse effect that often is mitigated by data recovery. Part II, Section X outlines other circumstances to consider in addition to a data recovery program when resolving Adverse Effects. This includes situations when the property is “known or thought to have historic, cultural, or religious significance to a community, neighborhood, or social or ethnic group that would be impaired by its disturbance” (B)(3)(d). Part III, Section X underscores the need to make a systematic effort to find and consult with appropriate representatives when a demonstrable ethnic affinity exists between recovered human remains and living groups.

This Citizen’s Guide explains the Section 106 review process, who and what is involved, and how citizens can involve themselves in the review and influence decisions about federal projects that affect properties they value.

The guidance explains the process for becoming a "consulting party," other than those specifically named in the regulations, namely the SHPO, THPO, tribes, local governments, and applicants for federal assistance, permits, licenses, and other approvals. As noted earlier in this chapter, other individuals and organizations with a demonstrated interest in the project may participate in Section 106 review as consulting parties "due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties."

The FHWA, in consultation with the SHPO, and if on tribal land, in consultation with the THPO or tribe, decides who will be a consulting party. How to contact the ACHP and what to do when an agency is out of compliance with Section 106 is also included in the guide.

The Archaeology and Historic Preservation Standards and Guidelines stress that archaeological documentation needs to be “responsive to the concerns of local groups (e.g., Native American groups with ties to specific properties).” Archaeological research designs should provide for appropriate ethnographic research and consultation and should consider concerns expressed previously during identification and evaluation phases. If coordination with local or other interested groups had not previously occurred, the research design “should anticipate the need to initiate appropriate contacts and provide a mechanism for responding to sensitive issues, such as the possible uncovering of human remains or discovery of sacred areas."

These guidelines can also be found in the Federal Register, vol. 48, No. 190, Thursday, September 29, 1983, pp. 44734-44737.

National Register Bulletin 15 contains guidance for assessing significance and integrity when evaluating a cultural resource’s National Register eligibility. Prehistoric archaeological sites are most often eligible for inclusion in the National Register under Criterion D (information potential). Archaeological sites and other places significant to Native Americans also can be determined eligible for the National Register under any of the other three criteria. For example, properties may have significance under Criterion A if they are associated with events, or series of events, significant to the cultural traditions of the community, under Criterion B if they are associated with individual Native Americans who made a specific important contribution to history or important mythological figures, or under Criterion C if the property demonstrates distinctive characteristics of a type, period or method of construction or possesses high artistic values, such as a petroglyph or pictograph site.

Religious properties (Criteria Consideration [a)]) usually are not considered eligible for inclusion in the National Register to avoid any “judgment by government about the validity of any religion or belief.” These properties can be determined eligible, however, if they meet the requirements of Criterion Consideration (a), given in Bulletin 15, in addition to meeting one of the four National Register Criteria and possessing integrity.

A Native American religious property can be eligible under Criterion A (Events) if it is significantly associated with traditional cultural values. A property or natural feature important to a traditional culture’s religion and mythology is eligible if its importance has been ethnohistorically documented and if the associations are not so diffuse that the physical resource cannot be defined adequately. An example of this type of historic resource could be a natural feature from which a particular group is believed to have originated. Another criterion for which a Native American religious site could be eligible is association with a person important in religious history (Criterion B), if that significance has scholarly, secular recognition, or is important in another historic context, or if it can yield important information about the religious practices of a cultural group or other historic themes. Other Criteria Considerations, as listed in Bulletin 15, could apply to places significant to Native Americans. Please refer to Bulletins 15 and 38 (mentioned below) for further discussion.

National Register Bulletin 38 contains guidance for assessing significance in a historic property type called a Traditional Cultural Property or Place (TCP). Many Native Americans prefer “place” because “property” connotes ownership, a concept that is often antithetical to cultural beliefs. A TCP is generally defined as a place that is eligible for inclusion in the National Register because it is associated with cultural practices or beliefs that are rooted in a community’s history, and are important in maintaining the cultural identity of that community. TCPs are associated with any kind of community: ethnic (e.g., a Jewish community in Florida), religious (e.g., Mormons), etc. Most identified to date are Native American sacred sites.

Often the community can only identify a TCP, or by certain members of the community, that ascribe significance to it, as there are often no associated physical characteristics that can be identified by the uninitiated.

A TCP must be a place, i.e., a physical location. Although intangible attributes are considered, purely intangible attributes are not TCPs. Evaluating and assessing the integrity of a TCP involves looking at the property through the eyes of the community that values it. The presence of a TCP does not need to be known prior to efforts to identify historic properties, since factors such as private acquisition, acculturation, or colonization might have restricted access to and knowledge of such places through time. Field visits may jog memories resulting in the identification of a place that meets the definition of a TCP.

A place that is not eligible for inclusion in the National Register as a TCP may still be a place with cultural significance ascribed to it by a community and would be considered under other laws, such as NEPA or PRC §5097.9. Intangible values such as religious values and lifeways still require consideration under other statutes, such as AIRFA.

The primary California state law guiding Caltrans Native American policies and practices is Chapter 1.75 of the PRC, §5097.9-5097.991, Native American Historical, Cultural and Sacred Sites. This law discusses the NAHC and its power, roles and responsibilities, mentioned earlier in the chapter. It also requires cooperation of state and local agencies with the Commission in carrying out its duties and prohibits a public agency from interfering with the free expression or exercise of Native American religion or causing severe or irreparable damage to any Native American “sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine” unless shown to be necessary for the public interest. The NAHC has the power to bring an action against a public agency if it appears that their actions will result in such damage.

Native American burials often are unmarked and thus disturbed during earth moving activities. Activities frequently undertaken by Caltrans are restricted in location so that avoidance of burials is difficult if not impossible. In the event that human remains, including isolated, disarticulated bones or fragments, are discovered during any Caltrans activity, whether it is during maintenance, construction, or an archaeological investigation, certain steps must be taken, following the provisions of Health and Safety Code §7050.5 and PRC §5097.98, and/or PRC §5097.94 as provided below.

Under PRC §5097.94 the NAHC also assists landowners in developing agreements with appropriate Native American groups for the respectful treatment and disposition of human remains. If such an agreement is desirable, the NAHC will provide a list of all Most Likely Descendents to be consulted regarding the agreement. All the Most Likely Descendents attest to this agreement by affixing their signatures to it. In the absence of such an agreement, the NAHC designates a Most Likely Descendent after the remains are discovered, and the steps outlined in PRC Section §5097.98 are followed.

Under PRC §5097.98, the NAHC immediately designates a person or persons it believes to be the most likely descended from the deceased. Within 48 hours of being granted access to the site, the most likely descendent recommends means for treating and disposing with appropriate dignity, the human remains and associated items. If the NAHC does not identify the descendent, or the descendent does not make a recommendation, or the landowner does not accept the recommendation, and any mediation attempted fails to provide the landowner acceptable measures, the landowner must re-inter the remains on the property in an area not subject to further disturbance, and record the site with the NAHC or appropriate Information Center, and the appropriate county.

PRC §5097.991 Repatriation of Native American remains and associated grave artifacts simply states that “It is the policy of the state that Native American remains and associated grave artifacts shall be repatriated.”

Caltrans is in the process of repatriating human remains and associated items found in its curated collections. Since the mid 1970s, the wishes of the Most Likely Descendents for the treatment and disposition of human remains and associated burial items have been followed, and it is unlikely that any human remains have been retained. If human remains are discovered, however, in these collections, the remains will be repatriated.

If any human remains are discovered or recognized, Health and Safety Code §7050.5 requires that no further excavation or disturbance occur in the area and that the county coroner be called immediately. Within 24 hours of notification, the coroner calls the NAHC if the remains are known to be or thought to be Native American. Section 3-6.4 describes the process Caltrans uses when human remains are discovered.

Health and Safety Code §7054(c) states that any person who deposits human remains in any place other than a cemetery is guilty of a misdemeanor. This law does not apply to the reburial of Native American human remains under an agreement between the landowner and the Most Likely Descendent developed pursuant to PRC §5097.94(l) or under PRC §5097.98.

Cal NAGPRA, as codified in the California Health and Safety Code Sections 8010-8021 and 8025-8030, provides for the repatriation of human remains and cultural items in the possession or control of a state or local agency or museum to California Indian tribes. As defined by this law, the term “California Indian tribes” includes non-federally recognized groups as entities that have standing under this law. The Act outlines inventory, summary and repatriation processes similar to the federal NAGPRA, establishes penalties and enforcement procedures for not complying, and establishes the Repatriation Oversight Commission.

It is Caltrans policy to consult with Indian tribes and other Native American groups and individuals on any proposed Caltrans project that may potentially affect historic properties or “cultural resources of interest to Native Americans.” See Section 3-1 for a definition of historic properties and historical resources, and Exhibit 3.1 for definitions of consultation. “Cultural resources of interest to Native American” include resources that may not be eligible for inclusion in the National Register or that would be considered historical resources under CEQA but are important to Native Americans in maintaining their culture. A location where plants used for food, basket materials, or medicinal purposes are gathered is an example of such a resource. The project area may be of known archaeological or Native American cultural sensitivity; however, the lack of known resources does not supersede the need for consultation.

Consultation, meaning conferring, begins early in, and continues throughout, the life of the project. The FHWA provides an overview of consultation in its "Section 106 Tribal Consultation Q&A."

As outlined in Division of Environmental Analysis Chief Gary R. Winters November 4, 2003 memo, it is Caltrans policy to have Native American monitoring in the following circumstances:

• During all Caltrans archaeological excavations at prehistoric or historic Native American sites, including Extended Phase I, Phase II and Phase III studies
• During construction or related activities at known site locations or in areas where there is a high probability that there may be a buried archaeological site based on the geomorphology of the area.

On federal or tribal land, Caltrans complies with provisions of NAGPRA regarding the treatment and disposition of human remains and associated funerary objects when encountered during the course of an archaeological excavation or any ground disturbing activity. On state land, Caltrans confers with the Most Likely Descendent per PRC §5097.98 regarding the treatment and disposition of human remains and associated grave artifacts when encountered during the course of an archaeological excavation or any ground disturbing activity.

The NAHC maintains a Sacred Lands Inventory. All burials, reburials, and sacred, religious, or ceremonial sites should be recorded on the Sacred Lands Inventory Form, which is submitted to the NAHC. The inventory form template is available online at the Caltrans Division of Environmental Analysis (DEA) Standard Environmental Reference Volume 2 website under Cultural Resources Templates.

Caltrans will follow the provisions of NAGPRA regarding the treatment of sacred items or items of cultural patrimony.

Where feasible, it is Caltrans policy to avoid cultural resources that are of value to Native Americans. Caltrans will make every effort to avoid burial areas, as well as sacred, religious or ceremonial sites. Where such sites cannot be avoided, Caltrans must identify Native American concerns, and agreement sought on the appropriate treatment.

The NAHC 1979 report to the Legislature succinctly stated, "Equally important (as burials) to California Indians are those places of traditional, spiritual or social importance (such as prayer sites, ceremonial sites and shrines), areas important in folklore and legend, or areas attributed with special or unique powers of sacredness. To ensure that Native American culture is not lost, it is essential for Indians to have continued access to traditional sacred places, many of which are located on lands now owned by non-Indians or are under control of various public authorities."

Pursuant to PRC §5097.9 and where feasible and appropriate, Caltrans ensures Native American access to such sites described above when they are located on Caltrans-owned land or are traversed by a State highway.

Caltrans has a program to identify gathering locations within and adjacent to the Caltrans right-of-way and a policy to prohibit herbicides in these areas. Caltrans Maintenance, where possible, is willing to work out trimming plans that will assist in stimulating the necessary plant growth. Each District has Landscape Specialists who can work with DNACs and local Native Americans to discuss gathering and issue permits. This program undergoes an annual review process resulting in an Annual Vegetation Control Plan.

Native Americans gathering for religious purposes or for basket weaving materials may be issued either a Consent Letter or an encroachment permit. The appropriate Maintenance Area Superintendent Office issues a Consent Letter if only one day for gathering is requested. When gathering for more than one day is requested, the district permit office may require an encroachment permit. For additional information and requirements, see the Encroachment Permits Manual, Section 508.11.

Native Americans often are reluctant to reveal the location of a sacred or traditionally important site out of concern that the revelation may bring harm to that site or to the person who revealed the site’s location, or would reveal the location of a scarce and precious resource to a competing interest. For instance, some basketweavers do not reveal the location of their gathering locations even to other basketweavers.

State and federal laws provide for protecting the confidentiality of this information, and productive consultation is dependent on maintaining this confidentiality. Therefore, if at all possible within the restraints of a given project, Districts need to develop innovative and flexible approaches to identify areas that should be avoided, without the requirement for complete location information. Environmental staff need to work with design engineers on approaches that would successfully avoid these sensitive locations. If this is not possible, Districts must make every effort to ensure the confidentiality of obtained information is only disclosed on a "need to know" basis, including the exact locations of burials, or sacred, ceremonial or religious places.

Section 304 of the NHPA states that federal agencies can withhold from public disclosure information on the location, character, or ownership of a historic resource if that disclosure may cause a significant invasion of privacy, risk harm to the resource, or would impede the use of a traditional religious site by practitioners. When that information is developed to comply with Sections 106 or 110(f) of the NHPA, the Secretary of the Interior must consult with the ACHP concerning disclosure and who may or may not have access to that information.

It is Caltrans’ policy not to obtain human remains and associated grave artifacts, sacred objects or objects of cultural patrimony. Human remains and associated grave artifacts recovered from state lands are respectfully treated and disposed of according to the wishes of the Most Likely Descendent, whether the human remains and associated artifacts are discovered during fieldwork or post-fieldwork in the laboratory or during construction.

On private lands and upon consideration of the Most Likely Descendent's recommendations, the landowner determines the respectful treatment and disposition of the human remains and associated grave artifacts.

Following NAGPRA regulations, the custody of human remains and funerary objects discovered on federal or tribal lands goes to the known lineal descendent(s), or if lineal descendents are not known, in a specified order of priority. In order of priority, custody is with the:

1. Indian tribe, if discovered on tribal land
2. Tribe that can show the closest cultural affiliation
3. Indian tribe aboriginally occupying the land
4. Tribe that can show a stronger cultural relationship

As defined in the NAGPRA regulations, the appropriate tribe determines the treatment and disposition of the human remains. This usually is outlined in a pre-excavation Action Plan that was developed as a result of consultation.

It is Caltrans’ policy to ensure that the appropriate traditional cultural leaders and groups determine the treatment and disposition of sacred objects and objects of cultural patrimony, as defined by NAGPRA. Although not covered by state law, sacred objects and objects of cultural patrimony, and the collections of which they are a part, will not be accepted for curation by curational facilities subject to NAGPRA regulations. Caltrans, therefore, repatriates sacred objects and objects of cultural patrimony. The custody of sacred objects and objects of cultural patrimony recovered from federal or tribal lands follows the order of priority specified above, and their treatment and disposition also is outlined in a NAGPRA Action Plan.

For all other cultural artifacts retrieved during Caltrans excavations, it is Caltrans’ policy to ensure that the collections are properly curated following the federal curation regulations (36 CFR §79) for collections obtained from federal land under an ARPA permit, and following the State Historical Resources Commission’s guidelines for all other collections. Caltrans will consult with appropriate Native American groups regarding such curation plans, as outlined in 36 CFR §800. Caltrans seeks public, private, or Native American-maintained repositories that provide secure permanent storage and ready access to users.

The appropriate Native American group must grant approval for the use of any photographs and detailed drawings of human skeletal remains, associated grave goods or sacred objects prior to their public display, or use for interpretive or reporting purposes. The documentation of human remains should be included as a separate appendix to the main body of a report and should not be available for public distribution unless there is a scientific or cultural interest and when the Native Americans agree to publication.

Consultation means that FHWA or Caltrans acting on its behalf confers with the tribes and interested persons on the proposed project and its potential for impacts on cultural resources within the project APE. Caltrans communicates any changes in the project APE to the tribes and interested persons. If some time has passed, contact the consulting parties again to see if any new information is available. Changes to the project and passage of time may require renewed consultation.

Caltrans can initiate consultation by various means for instance, by letter, telephone call, and personal visit or by a semi-annual notice. If there is no response to the initial contact, a telephone call or personal visit should be made. The amount of effort to consult should reflect the scope of the project and the degree of cultural sensitivity of the project APE. A phone call may be adequate. Other projects may involve more intensive and extensive consultation. The Districts should consider contracting with an ethnographer, if it appears appropriate to do so, if the project is complex or there are Native American issues.

Below is an example of one type of consultation record:

Successful consultation with tribal leaders, traditional leaders or elders often requires personal visits. A field review of high sensitivity project areas with representatives from the local Native American community may be necessary. In general, these reviews enhance the District's sensitivity to traditional values and land use practices, as well as sensitivity to features that are not readily apparent to the archaeologist or documented in the historic or ethnographic literature.

When consulting, Caltrans staff shall keep in mind cultural events that may be occurring throughout the year, as well the need for tribal groups to meet and discuss any information provided them or requested from them. These activities may delay a response. Also many tribal members or Native American consultants work on tribal business with Caltrans and other agencies in addition to their regular occupations, and cannot respond within short time frames that agencies have frequently tried to impose on them.

Districts should strive to develop optimal relationships by talking to tribal leaders and other Native American groups and individuals and establish with them how best to consult. Each tribe, group, or individual has different protocols for interacting with agencies. These efforts, although perhaps extensive or intensive in the short run, should ultimately develop a good trust relationship and smooth the way for both Caltrans and the tribe and other consulting parties in future consultations.

Consultation means communicating to the Native Americans the purpose of the project, archaeological survey results, proposed excavations, and excavation results. Their concerns regarding historic properties or other cultural resources in the project area are solicited. Efforts should be made to work around their concerns if confidentiality is an issue, as discussed in Section 3-5.8. Caltrans provides documents upon request.

A summary of consultation must be included, or referenced if confidentiality is an issue, in Historic Property Survey Reports, subsequent 106 documents, and environmental documents as appropriate. The consultation log provided on the previous page may be used as the basics of the summary.

The need for a monitor is identified during consultation with the affected Native American community. The Native American community and Caltrans confer on who is to monitor and serve as a liaison with Caltrans. It is Caltrans policy that the number of monitors present at any one time does not exceed the actual need as determined by the activit(ies) being monitored. If multiple communities are interested in monitoring, then a way to share the monitoring effort, for example alternate days, needs to be identified.

Note: The processes described in Section 3-6.3 are administrative, so all hyperlinks are only accessible to Caltrans staff on the Caltrans intranet.

Three methods have been identified for contracting for Native American monitors, although none are perfect for the purpose, and each have limitations. Efforts are on-going to rectify these problems. Ideally, contracts would be directly with the monitor or with a Native American entity acting as prime. Alternatively, the monitors have been included as sub-contractors on the archaeological or construction contracts.

A third way, provided that the cost and need limitations are met, is through the CAL-Card process, or absent a credit card mechanism, the process referred to variously as the ADM-3015, the U-5000, U-5, or non-credit card process. Of the two processes, i.e., the CAL-Card process or the non-credit card process, it is expected that the latter is more applicable unless the entity has a credit card issued from this program. The similarity between the CAL-Card and the non- credit card processes, is that the services, plus taxes, for either cannot total more than $4999.99. The difference is that under the CAL-Card, the services can be of a repetitive nature as long as they do not exceed $5,000 per fiscal year with the same vendor (i.e., individual or entity) for the same service (e.g., monitoring). Under the non-credit card process, the contracted services are for a single transaction, and the projected value of the service does not exceed $5,000 or more in two fiscal years. If these limitations are not meet, the formal service contract process (i.e., the ADM-360 process, see below) must be followed (Note: Do not split a service or transaction to meet these limitations as this circumvents the contracting process, and if discovered, would jeopardize the availability of this option for this use).

The DNAC or project archaeologist initiates the formal service contract process by submitting a Service Contract Request to the district’s contract unit (ADM 0360). Unless the requested contract is with a federally recognized tribe, a non-competitively bid justification is included in the ADM-360 package. Currently, Caltrans has a non-competitive bid authorization and advertising exemption for contracting with federally recognized tribes for activities associated with environmental activities that include monitoring archaeological excavations and construction, when appropriate. CSO is pursing with Headquarters Division of Procurement and Contracts a request for an exemption from competitive bid and advertising for contracts with other Native Americans. But until this is awarded, the non-competitively bid justification needs to be included in the contract request.

Costs should be charged to the project for which the Monitor is hired.

The job description, procedures, and expectations may be outlined in a monitoring agreement. The Monitoring Agreement includes as appropriate:

• Chain of command
• Glossary of terms used if necessary
• Locations to be monitored (include a map)
• Rate of hourly pay, mileage and per diem if appropriate
• Number of days prior to a monitoring start date needed for notification of that start date
• Statement whether the notification will be in writing (preferable)
• Actions to be taken if the designated monitor does not show up when requested
• Notation that the appropriate laws will be followed in the event that human remains are unearthed
• Reference to Caltrans policies on Workplace Violence, a Drug-Free Workplace, and Sexual Harassment

The DNAC or lead project person approves any timesheets and travel expense claims submitted by the monitor, and submits the documents to the accounting office, ensuring payment in a timely fashion. As with all contractors, unsatisfactory performance is documented and reported to the District Environmental Branch Chief (EBC).

The following steps must be followed to comply with PRC 5097.98 when human remains, including disarticulated bone, are encountered during an archaeological excavation, construction, maintenance or encroachment permit work on state owned land:

• Caltrans shall cease work in the vicinity of the human remains.
• The lead person on the project (for instance, field director, resident engineer, maintenance supervisor, or permit engineer) ensures that the EBC or DNAC is immediately contacted.
• The lead person, EBC or DNAC telephones the County Coroner and the NAHC. Although the Coroner has the ultimate responsibility to contact the NAHC, Caltrans calls the NAHC at this time to provide information on the discovery, and to assure the NAHC that appropriate action is being taken. The Coroner may or may not inspect the remains. If the Coroner inspects the remains and determines that the remains are not Native American and/or determines they are a result of wrongful death, the Coroner may take possession of the remains for further inquiry, release them to next of kin, or order the body to be reinterred. After the above action has been taken, work may resume on the excavation project.
• If the Coroner determines that the remains are Native American, the Coroner notifies the NAHC of the findings. The NAHC immediately notifies the Most Likely Descendent.
• The Most Likely Descendent inspects the remains and makes a recommendation to the lead person on the treatment of remains and associated grave goods.
• The lead person ensures that the recommendations are followed. After the appropriate actions are taken, the excavation work may resume.