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AB-2836 Native Americans: repatriation.(2017-2018)

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Date Published: 03/23/2018 04:00 AM
AB2836:v98#DOCUMENT

Revised  April 25, 2018
Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2836


Introduced by Assembly Member Gloria
(Coauthors: Assembly Members Acosta, Chiu, Chu, Friedman, Nazarian, Waldron, Levine, Medina, and Patterson)

February 16, 2018


An act to amend Section 8014 of, and to add Article 3 (commencing with Section 8025) to Chapter 5 of Part 2 of Division 7 of, the Health and Safety Code, and to amend Section 5097.94 of the Public Resources Code, relating to tribal affairs.


LEGISLATIVE COUNSEL'S DIGEST


AB 2836, as amended, Gloria. Native Americans: repatriation.
Existing law, the California Native American Graves Protection and Repatriation Act of 2001, 2001 (California act), requires all agencies and museums that receive state funding that have possession or control over collections of California Native American human remains or cultural items, as defined, to inventory those remains and items for the identification and repatriation of the items to the appropriate Indian tribes. The California act states the intent of the Legislature to apply the state’s repatriation policy consistent with the federal Native American Graves Protection and Repatriation Act (federal act) and to facilitate the implementation of the provisions of the federal act with respect to publicly funded agencies and museums in California. Existing law establishes the Native American Heritage Commission and vests the commission with specified powers and duties.
Existing provisions of the California Constitution establish the University of California as a public trust under the administration of the Regents of the University of California. The California Constitution grants to the regents all the powers necessary or convenient for the effective administration of this public trust, subject to such legislative control as may be necessary to insure the security of its funds, compliance with the terms of the endowments of the university, and certain competitive bidding procedures.
This bill would require the regents, or their designee, to establish and support a systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee, with specified membership, and, for any campus subject to the federal act, a campus implementation committee, with specified membership. The bill would require the regents, in consultation with the systemwide committee, to adopt and implement certain policies, procedures, and guidelines to better implement the federal act and to timely submit the policies, procedures, and guidelines to the Native American Heritage Commission for review and approval by July 1, 2019. The bill would make conforming changes to the powers and duties of the Native American Heritage Commission. The bill would require the regents to ensure that the campus committees utilize the policies, procedures, or guidelines adopted by the regents and approved by the Native American Heritage Commission. The bill would provide that all claims for repatriation or claims of any violation of the policies, procedures, or guidelines shall be submitted to the campus committee for determination and would require the regents to adopt procedures ensuring a right to appeal any determination of a campus committee that denies cultural affiliation directly to the systemwide committee. The bill would require the California State Auditor to conduct an audit every 2 years regarding the University of California’s compliance with the federal and California acts and to report its findings to the Legislature and to all other appropriate entities.

This bill would state the intent of the Legislature to enact legislation that would promote the state’s existing repatriation policy.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) It is the policy of the state that Native American remains and associated grave artifacts shall be repatriated.
(2) Museums located within the University of California system are subject to the mandates of the federal Native American Graves Protection and Repatriation Act of 1990 (25 U.S.C. Sec. 3001 et seq.) and the California Native American Graves Protection and Repatriation Act of 2001 (Chapter 5 (commencing with Section 8010) of Part 2 of Division 7 of the Health and Safety Code).
(3) The Phoebe A. Hearst Museum of Anthropology at the University of California, Berkeley, contains one of the largest collections of Native American human remains and cultural items within the United States.
(4) The federal Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act are human rights laws.
(5) Article 12 of the United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of indigenous peoples to the repatriation of their human remains, and recognizes that the repatriation of ceremonial objects and human remains should be achieved through fair, transparent, and effective mechanisms developed in conjunction with the indigenous peoples concerned.
(6) There is a history of resistance by some campuses within the University of California system to comply with the repatriation mandates of both federal and state laws with respect to Native American human remains and cultural items.
(7) The University of California’s Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items (UC Policy), which was adopted on May 1, 2001, and is still operative at the time of this enactment, lacks mandated policies and procedures for the repatriation of human remains and cultural items, which has resulted in the inconsistent application of the federal law and the UC Policy across the University of California’s campuses and museums.
(8) The UC Policy does not mandate campus-level processes, but rather provides as follows: “Campuses are encouraged to solicit input on significant policy matters, as appropriate, from members of Native American and Native Hawaiian groups and from additional University faculty members drawn from a variety of disciplines in which the study, treatment, curation, and repatriation of human remains is relevant. Campuses are encouraged to forward input received from such consultations to the Office of the President via their Advisory Group Representative.” This lack of directive has resulted in some campuses failing to comply at all with the UC Policy, while other campuses are in varying degrees of compliance.
(9) The absence of required policies with respect to repatriation has led some University of California campuses to exclude or limit the participation of stakeholders who could bring valuable knowledge to the repatriation process. This includes legitimate tribal representatives who may have interests in the collections as well as campus specialists in Native American or ethnic studies.
(10) The UC Policy focuses too heavily on the perceived educational and research potential that remains and cultural items have to the enhancement of knowledge in various disciplines, rather than considering the cultural and religious concerns of tribes and repatriating the remains and cultural items to their tribal communities.
(b) In recognition of the inconsistent application of the University of California’s Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items and the historic repatriation failures of some campuses and museums within the University of California with respect to Native American human remains and cultural items, it is the intent of the Legislature, in enacting this act, to accomplish the following:
(1) Recognize that the repatriation of human remains and cultural items is a fundamental human right for all California Native American tribes.
(2) Recognize that the repatriation of Native American human remains and cultural items is a paramount priority for all campuses and museums within the University of California.
(3) Require the University of California to adopt minimum standards and policy requirements for the repatriation of Native American human remains and cultural items pursuant to federal and state law, to be implemented by each campus.
(4) Establish within the University of California a mandatory systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee and establish a campus-level Native American Graves Protection and Repatriation Act Implementation Committee at each campus that is subject to the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(5) Establish mandatory eligibility criteria for individuals serving on a Native American Graves Protection and Repatriation Act Committee within the University of California system.
(6) Mandate tribal consultation and participation in developing the policies, procedures, and guidelines of the University of California and in developing supplemental policies, procedures, and guidelines adopted by each campus to comply with and implement those systemwide requirements.
(7) Establish a biennial reporting requirement to the Legislature on the University of California’s progress with repatriation efforts under state and federal laws.

SEC. 2.

 Section 8014 of the Health and Safety Code is amended to read:

8014.
 A tribe claiming state cultural affiliation and requesting the return of human remains and cultural items listed in the inventory or summary of an agency or museum or that requests the return of human remains and cultural items that are not listed in the inventory but are believed to be in the possession or control of the agency or museum in the state shall do both of the following:
(a)  File a written request for the human remains and cultural items with the commission and the agency or museum believed to have possession or control.
(b)  Provide evidence that would establish that items claimed are cultural items and are culturally affiliated with the California Indian tribe making the claim. Evidence of cultural affiliation need not be provided in cases where cultural affiliation is reasonably established by the inventory or summary. summary or a finding by a federal or state agency, published in the Federal Register, in compliance with the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).

SEC. 3.

 Article 3 (commencing with Section 8025) is added to Chapter 5 of Part 2 of Division 7 of the Health and Safety Code, to read:
Article  3. University of California Implementation

8025.
 (a) In order to better implement the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), the Regents of the University of California shall do all the following:
(1) Support the systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee and each campus Native American Graves Protection and Repatriation Act Implementation Committee, as required to be established pursuant to Section 8026.
(2) (A) Adopt and implement systemwide policies regarding the culturally appropriate treatment of Native American human remains and cultural items while in the possession of a University of California campus or museum, including policies regarding research requests and testing following the submission of a request for repatriation.
(B) Adopt and implement clear and transparent policies, procedures, and guidelines on the systemwide requirements for submitting claims for the repatriation of human remains and cultural items, demonstrating cultural affiliation, dispute resolution regarding repatriation claims, and any other relevant subject governed by the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) and this chapter.
(C) Adopt or amend systemwide University of California museum deaccessioning policies to explicitly provide for the deaccession of collections containing Native American human remains and cultural items to effect the timely and respectful repatriation of those items pursuant to valid claims submitted by a California Indian tribe.
(3) Develop all policies, procedures, and guidelines pursuant to paragraph (2) in consultation with California Indian tribes. Each California Indian tribe that is on the contact list maintained by the commission shall be invited to consult on the proposed policies, procedures, and guidelines.
(4) Timely submit the policies, procedures, and guidelines adopted pursuant to paragraph (2) to the commission, so they may be approved pursuant to subdivision (q) of Section 5097.94 of the Public Resources Code by July 1, 2019.
(5) Ensure that each campus Native American Graves Protection and Repatriation Act Implementation Committee utilizes the policies, procedures, and guidelines adopted pursuant to paragraph (2), and approved by the commission pursuant to subdivision (q) of Section 5097.94 of the Public Resources Code.
(6) Adopt procedures ensuring a right to appeal any determination by a campus Native American Graves Protection and Repatriation Act Implementation Committee that denies cultural affiliation directly to the systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee.
(b) (1) A campus of the University of California may adopt policies, procedures, or guidelines to supplement the systemwide policies adopted pursuant to paragraph (2) of subdivision (a) if the campus Native American Graves Protection and Repatriation Act Implementation Committee determines that individual circumstances involving that campus are not adequately addressed in the adopted and approved systemwide policies, procedures, and guidelines.
(2) Any campus-specific policies, procedures, or guidelines shall be developed and submitted to the commission for review and approval within six months of the commission’s approval of the systemwide policies, procedures, and guidelines.

8026.
 (a) (1) The Regents of the University of California shall establish a systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee, which shall also be known as the U.C. NAGPRA Committee.
(2)  The membership of the committee shall be as follows:
(A) Two voting members of an Indian tribe as described in paragraph (1) of subdivision (j) of Section 8012, meeting the requirements of subdivision (c).
(B) One voting members of an Indian tribe as described in paragraph (2) of subdivision (j) of Section 8012, meeting the requirements of subdivision (c).
(C) Four voting members from the University of California. Not fewer than two of these members shall be affiliated with an American Indian or Native American Studies program and each of these members shall meet the requirements of subdivision (d).
(D) One nonvoting member from each campus of the University of California that is subject to the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). Each of these nonvoting members shall meet the requirements of subdivision (d).
(3) The regents or the regents’ designee shall appoint members to the committee upon nomination by the commission.
(b) (1) Each campus of the University of California that is subject to the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) shall establish a campus Native American Graves Protection and Repatriation Act Implementation Committee, which shall also be known as the NAGPRA Committee for that campus.
(2) The membership of the campus committee shall be as follows:
(A) Two voting members of an Indian tribe as described in paragraph (1) of subdivision (j) of Section 8012, meeting the requirements of subdivision (c).
(B) One voting members of an Indian tribe as described in paragraph (2) of subdivision (j) of Section 8012, meeting the requirements of subdivision (c).
(C) Three voting members from the University of California. At least one of these members shall be affiliated with an American Indian or Native American Studies program and each of these members shall meet the requirements of subdivision (d).
(3) The regents or the regents’ designee shall appoint members to the committees upon nomination by the commission.
(4) All claims for repatriation or claims of any violation of the policies, procedures, or guidelines adopted pursuant to Section 8025 shall be submitted to the campus Native American Graves Protection and Repatriation Act Implementation Committee for determination.
(c) (1) A voting member of a California Indian tribe shall be an elder, spiritual leader, tribal leader, or tribal member with a minimum of five years’ prior experience in any of the following:
(A) Repatriation of human remains and cultural items pursuant to the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(B) Cultural resources protection under tribal, state, and federal law.
(C) Consultation with state and federal entities and agencies.
(2) Preference shall be given to members of a California Indian tribe. If no members of a California Indian tribe meeting the qualifications of paragraph (1) are available, members of other tribes may serve.
(d) (1) A representative of the University of California shall meet the following criteria:
(A) Have a graduate degree in either Archaeology, Anthropology, Native American Studies, Ethnic Studies, or History, with a focus in California.
(B) Have a minimum of five years’ experience working in his or her field of study.
(2) Preference shall be given to members who have demonstrated, through their professional experience, the ability to work in collaboration with Native American tribes on issues related to repatriation or museum collection management.
(3) In the event that candidates from the University of California are not available or do not meet the criteria of paragraph (1), the University of California representative positions may be filled by individuals not affiliated with the University of California, but who meet the criteria of paragraph (1).

8027.
 The Regents of the University of California may delegate responsibilities pursuant to this article to the President of the University of California or another person determined to be appropriate.

8028.
 The California State Auditor, in accordance with Chapter 6.5 (commencing with Section 8543) of Division 1 of Title 2 of the Government Code, shall conduct an audit every two years regarding the University of California’s compliance with the federal Native American Graves Protection Repatriation Act (25 U.S.C. Sec. 3001 et seq.) and this chapter. The State Auditor shall report its findings to the Legislature and to all other appropriate entities.

SEC. 4.

 Section 5097.94 of the Public Resources Code is amended to read:

5097.94.
 The commission shall have the following powers and duties:
(a) To identify and catalog places of special religious or social significance to Native Americans, and known graves and cemeteries of Native Americans on private lands. The identification and cataloguing of known graves and cemeteries shall be completed on or before January 1, 1984. The commission shall notify landowners on whose property the graves and cemeteries are determined to exist, and shall identify the Native American group most likely descended from those Native Americans who may be interred on the property.
(b) To make recommendations relative to Native American sacred places that are located on private lands, are inaccessible to Native Americans, and have cultural significance to Native Americans for acquisition by the state or other public agencies for the purpose of facilitating or assuring access thereto by Native Americans.
(c) To make recommendations to the Legislature relative to procedures that will voluntarily encourage private property owners to preserve and protect sacred places in a natural state and to allow appropriate access to Native American religionists for ceremonial or spiritual activities.
(d) To appoint necessary clerical staff.
(e) To accept grants or donations, real or in kind, to carry out the purposes of this chapter and the California Native American Graves Protection and Repatriation Act of 2001 (Chapter 5 (commencing with Section 8010) of Part 2 of Division 7 of the Health and Safety Code).
(f) To make recommendations to the Director of Parks and Recreation and the California Arts Council relative to the California State Indian Museum and other Indian matters touched upon by department programs.
(g) To bring an action to prevent severe and irreparable damage to, or assure appropriate access for Native Americans to, a Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property, pursuant to Section 5097.97. If the court finds that severe and irreparable damage will occur or that appropriate access will be denied, and appropriate mitigation measures are not available, it shall issue an injunction, unless it finds, on clear and convincing evidence, that the public interest and necessity require otherwise. The Attorney General shall represent the commission and the state in litigation concerning affairs of the commission, unless the Attorney General has determined to represent the agency against whom the commission’s action is directed, in which case the commission shall be authorized to employ other counsel. In an action to enforce this subdivision the commission shall introduce evidence showing that a cemetery, place, site, or shrine has been historically regarded as a sacred or sanctified place by Native American people and represents a place of unique historical and cultural significance to an Indian tribe or community.
(h) To request and utilize the advice and service of all federal, state, local, and regional agencies, including for purposes of carrying out the California Native American Graves Protection and Repatriation Act of 2001 (Chapter 5 (commencing with Section 8010) of Part 2 of Division 7 of the Health and Safety Code).
(i) To assist Native Americans in obtaining appropriate access to sacred places that are located on public lands for ceremonial or spiritual activities.
(j) To assist state agencies in any negotiations with agencies of the federal government for the protection of Native American sacred places that are located on federal lands.
(k) (1) To mediate, upon application of either of the parties, disputes arising between landowners and known descendants relating to the treatment and disposition of Native American human burials, skeletal remains, and items associated with Native American burials.
(2) The agreements shall provide protection to Native American human burials and skeletal remains from vandalism and inadvertent destruction and provide for sensitive treatment and disposition of Native American burials, skeletal remains, and associated grave goods consistent with the planned use of, or the approved project on, the land.
(l) To assist interested landowners in developing agreements with appropriate Native American groups for treating or disposing, with appropriate dignity, of the human remains and any items associated with Native American burials.
(m) To provide each California Native American tribe, as defined in Section 21073, on or before July 1, 2016, with a list of all public agencies that may be a lead agency pursuant to Division 13 (commencing with Section 21000) within the geographic area with which the tribe is traditionally and culturally affiliated, the contact information of those public agencies, and information on how the tribe may request the public agency to notify the tribe of projects within the jurisdiction of those public agencies for the purposes of requesting consultation pursuant to Section 21080.3.1.
(n) (1) To assume the powers and duties of the former Repatriation Oversight Commission and meet, when necessary and at least quarterly, to perform the following duties:
(A) Order the repatriation of human remains and cultural items in accordance with the act.
(B) Establish mediation procedures and, upon the application of the parties involved, mediate disputes among tribes and museums and agencies relating to the disposition of human remains and cultural items. The commission shall have the power of subpoena for purposes of discovery and may impose civil penalties against any agency or museum that intentionally or willfully fails to comply with the act. Members of the commission and commission staff shall receive training in mediation for purposes of this subparagraph. The commission may delegate its responsibility to mediate disputes to a certified mediator or commission staff.
(C) Establish and maintain an Internet Web site for communication among tribes and museums and agencies.
(D) Upon the request of tribes or museums and agencies, analyze and make decisions regarding providing financial assistance to aid in specific repatriation activities.
(E) Make recommendations to the Legislature to assist tribes in obtaining the dedication of appropriate state lands for the purposes of reinterment of human remains and cultural items.
(F) (i) Prepare and submit to the Legislature an annual report detailing commission activities, disbursement of funds, and dispute resolutions relating to the repatriation activities under the act.
(ii) A report submitted to the Legislature pursuant to this subparagraph shall be submitted in compliance with Section 9795 of the Government Code.
(G) Refer any known noncompliance with the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) to the United States Attorney General and the Secretary of the Interior.
(H) Impose administrative civil penalties pursuant to Section 8029 of the Health and Safety Code against an agency or museum that is determined by the commission to have violated the act.
(I) Establish those rules and regulations the commission determines to be necessary for the administration of the act.
(2) For purposes of this subdivision, the following terms have the following meanings:
(A) “Act” means the California Native American Graves Protection and Repatriation Act (Chapter 5 (commencing with Section 8010) of Part 2 of Division 7 of the Health and Safety Code).
(B) “Tribe” means a “California Indian tribe” as that term is used in the act.
(o) (1) To establish and assess a fee on a person or public or private entity that is reasonably related to the cost of conducting a search of catalogs, described in subdivision (a), inventories, described in Section 5097.96, or lists, described in Section 21073, for that person or entity, which funds shall be available to the commission upon appropriation by the Legislature.
(2) The Legislature finds that, pursuant to subdivision (b) of Section 3 of Article XIII A of the California Constitution, the fees established pursuant to paragraph (1) are not taxes. To the extent that these fees are appropriated through the Budget Act for the purposes for which they are collected to provide services to the people of the State of California, the Legislature finds that these fees are not subject to Article XIII B of the California Constitution.
(p) Solicit, review, and nominate persons for membership on the systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee and the campus Native American Graves Protection and Repatriation Act Implementation Committees pursuant Article 3 (commencing with Section 8025) of Chapter 5 of Part 2 of Division 7 of the Health and Safety Code.
(q) Review, provide comment and guidance on, and approve all policies, procedures, and guidelines proposed pursuant to Article 3 (commencing with Section 8025) of Chapter 5 of Part 2 of Division 7 of the Health and Safety Code.

SECTION 1.

It is the intent of the Legislature to enact legislation that would promote the state’s existing repatriation policy to encourage disclosure and return of Indian remains and cultural items to appropriate Indian tribes.

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REVISIONS:
Heading—Line 3.
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