For decades, when a California city or developer wanted to know whether a project might disturb an Ohlone burial or village site, one of its first calls was to the state Native American Heritage Commission. The commission keeps the Sacred Lands File, a confidential inventory of sacred places, graves and cemeteries. It also keeps the contact list that tells agencies which tribes to consult. Tribes without federal recognition, including the Muwekma Ohlone Tribe of the San Francisco Bay Area, have relied on both.
The commission is now rewriting the rules for both, and the two drafts fit together. Under draft Sacred Lands File regulations released Sept. 21, only a tribe on the contact list could submit a site to the file on its own. Under revised draft contact list regulations the commission took up in July, federally recognized tribes would be on that list automatically. Tribes without recognition would have to apply, document their history and win a vote of the commission.
The first of two virtual listening sessions on the sacred sites rules is this Wednesday, Oct. 21, from 4 to 6 p.m. Written comments are due Dec. 21.
Why the contact list matters so much
The contact list is not a formality. State law ties a tribe’s consultation rights to it. Under Public Resources Code section 21073, a “California Native American tribe” for purposes of AB 52, the 2014 law that gives tribes a right to consult on projects under the California Environmental Quality Act, is a tribe “that is on the contact list maintained by the Native American Heritage Commission.” Cities and counties must consult tribes “that are on the contact list” before adopting or amending a general plan, under Government Code section 65352.3, the 2004 law known as SB 18.
For a tribe the federal government does not recognize, the list is the door to those rights. It has worked that way for the Muwekma. When NASA’s Ames Research Center planned runway work at Moffett Federal Airfield in 2018, it wrote to the Tribe that “no Federally Recognized Tribes are associated with this location,” but that the Heritage Commission had indicated the Tribe “may have an interest,” according to a May 14, 2018 letter NASA posted. In May 2025 the City of Milpitas sent the Tribe an SB 18 notice on a general plan amendment, and the Tribe answered that it offers consultations under Section 106, CEQA, AB 52 and SB 18, according to records the city published.
What the contact list draft would do
The revised draft says the commission will create a “first edition” of the contact list within about a year after the rules take effect, and that once it does, “any previously created list shall be void.” The first edition would include every federally recognized tribe in California, plus “Non-Federally Recognized Tribes” that “have been approved for inclusion.” The draft defines such a tribe as “a self-identified tribe that is not currently recognized as a tribe by the federal government.”
When Shasta Scout reported on the previous draft in January, it counted about 60 tribes without federal recognition that would have to apply to get back on. Tribal representatives it interviewed said losing their place on the list would leave their homelands open to destruction, and the outlet summed up their objection as “administrative erasure.” The commission’s July 10 overview of revisions says it has since broadened the criteria. It added the definition of a non-federally recognized tribe, dropped a criterion tied to signing one of the 18 unratified treaties of 1851 and 1852, and added a new way in for tribes that local governments have notified under SB 18.
To get on the list, an applicant would have to show one of three things, under draft section 31035:
- that it was acknowledged by the federal government and then terminated by an act of Congress in the 20th century, with “the same” name as the terminated tribe;
- that it has been acknowledged by the federal government, shown by federal land patents in its name, a listing in a 1947 Indian Service report on tribal governments under the Indian Reorganization Act, or a listing in congressional reports of the Indian Service or Bureau of Indian Affairs, again under “the same” name; or
- that a city or county notified it of a chance to consult “as a tribe” under SB 18 at some point from 2005 to within a year before the rules take effect, as shown in general or specific plan documents that list it by name.
An applicant would also have to show that it is traditionally and culturally affiliated with the area where it wants to consult. It would have to document its consultation record and preservation work, including the names and backgrounds of the people who would consult for it. The commission would then decide at a public hearing, by majority vote, whether a “preponderance of the evidence” supports listing it. A tribe that is denied could not reapply for a year, and only with new evidence.
How the Muwekma would fare
Read against the Muwekma’s own record, the three paths are uneven. The first does not fit. In its 2002 final determination denying the Tribe’s petition, Interior found no legislation “expressly terminating or forbidding the Federal relationship” with the Tribe’s ancestors.
The second path runs into the name rule. Interior has found that the Tribe’s ancestors were federally recognized from 1914 to 1927 as the Verona Band, as the Muwekma Times reported this morning. But the federal records from that era use that name, not “Muwekma Ohlone Tribe,” and the draft requires the applicant’s name to be “the same as in the submitted documents.” The draft does not say how a tribe whose name has changed over a century would meet that test.
The third path looks like the Tribe’s clearest one. At least one Bay Area city, Milpitas, sent the Muwekma an SB 18 notice in 2025, as its records show. Even so, an application would turn on how plan documents spelled the Tribe’s name.
One more provision would weigh against every Ohlone applicant. At the hearing, the commission would consider “any resolutions or letters of support from Federally Recognized Tribes sharing the Requester’s cultural affiliation.” No Ohlone tribe is federally recognized, so no recognized tribe shares Ohlone cultural affiliation to write one.
The draft also points toward one tribe per place. If tribes’ maps of their consultation areas overlap, they could ask the commission to mediate. The mediator would help them either redraw their maps “so that there is not more than one Listed Entity seeking consultation in the same geographic area” or agree on a plan to consult together. Mediation would be voluntary.
What the sacred sites draft would do
The Sacred Lands File draft builds on the contact list at every step. It defines the file itself as places “submitted by a tribe on the Contact List.” A submission would need a site type, a location keyed to U.S. Geological Survey maps, and a certification from a tribal chairperson, cultural specialist or tribal historic preservation officer explaining the site’s significance. It would also need “substantial evidence” behind that certification, which can include oral traditions, tribal histories, elders’ testimony and archaeological reports. Archaeologists and other outsiders could submit a site only after the listed tribes affiliated with the area agree.
The draft also reaches back. Once the rules take effect, staff “will initiate a review of all sites previously submitted” to make sure they meet the new submission rules, which start with the contact list. Staff would flag for removal any site whose supporting information they ask for and can’t get. They would also flag sites whose submitting tribe skips a required consultation, and sites for which the commission cannot find “a culturally affiliated tribe to verify” their significance.
If a site falls outside the tribe’s consultation map, or outside the traditional area shown for its people in the Smithsonian’s 1978 Handbook of North American Indians, Volume 8, staff would have to consult other affected tribes first. The same goes for a site on another tribe’s reservation, rancheria, trust or fee land.
When an agency or developer asks for a search, the commission would name the tribes tied to any site in the area but would not reveal its location. The draft sets a nonrefundable $40 fee for each search and exempts tribes. It also says a recorded site “does not create an exclusive consultation right to any one tribe.”
Taken together, the drafts mean that a tribe without federal recognition that is not on the new contact list could not submit a site to the file itself. Sites it added years ago would face review under rules that start with being on that list. Neither draft is final.
Why it matters here
The Bay Area knows what is lost when sacred places go unrecorded. Archaeologist N.C. Nelson’s 1909 survey mapped more than 400 shellmounds around the Bay, many of them Ohlone village and burial sites. The largest, in Emeryville, was leveled in 1924 for an industrial plant. Today a memorial mound stands in the shopping district built over it.
The rewrite also comes as tribes without recognition are losing ground elsewhere. Proposition 45, on the Nov. 3 ballot, would limit formal consultation on “essential” projects to federally recognized tribes, as the Muwekma Times reported today. If it passes and the contact list is reset, a tribe like the Muwekma could be squeezed on both fronts. The ballot measure would cut the Tribe out of consultation on those projects, and the commission would decide whether it stays on the list that protects its rights everywhere else.
The commission says the contact list draft is not meant to shut anyone out. The draft states that the Legislature, through SB 18 and AB 52, “provided a way for tribes to continue to protect and preserve” sacred sites despite “the history of harms and depredations against California Native Americans” that left many tribes without federal recognition. It also says the rules do not create a state recognition process. In its July summary of comments, the commission said 52 tribes sent written comments on the previous draft, and that 21 comments asked it to extend consultation or withdraw the draft. It answered that it had held 225 days of tribal comment and consultation over two rounds and must balance tribal input against the need for “a transparent regulatory process.”
In January, commissioners declined to answer Shasta Scout’s questions because the rules were still in draft form, the outlet reported. The Muwekma Times found no public statement from the Muwekma Ohlone Tribe on either draft.
How to weigh in
The commission’s Sept. 21 letter to tribes on the sacred sites draft sets these dates:
- Virtual listening sessions: Wednesday, Oct. 21, 4 to 6 p.m., and Wednesday, Nov. 4, 9 to 11 a.m. Passwords are available from tribal.consultation@nahc.ca.gov.
- In-person roundtable: Friday, Nov. 13, 1 to 4 p.m., in Riverside. A first roundtable was scheduled for Oct. 9 in Sacramento.
- Requests for one-on-one tribal consultation are due Dec. 7.
- Written comments are due Dec. 21, by email to tribal.consultation@nahc.ca.gov.
The commission says it will review the comments before it begins formal rulemaking on the sacred sites rules. The contact list draft and the commission’s responses to earlier comments are posted on its contact list regulations page. The Muwekma Times will follow both drafts.
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