Code Section Group

Health and Safety Code - HSC

DIVISION 7. DEAD BODIES [7000 - 8030]

  ( Division 7 enacted by Stats. 1939, Ch. 60. )

PART 2. DISINTERMENT AND REMOVAL [7500 - 8030]

  ( Part 2 enacted by Stats. 1939, Ch. 60. )

CHAPTER 5. California Native American Graves Protection and Repatriation [8010 - 8030]

  ( Chapter 5 added by Stats. 2001, Ch. 818, Sec. 1. )

ARTICLE 2. State Cultural Affiliation and Repatriation [8012 - 8021]
  ( Article 2 added by Stats. 2001, Ch. 818, Sec. 1. )

8012.
  

Terms used in this chapter have the same meaning as defined in the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), and as interpreted by federal regulations, except that the following terms have the following meaning:

(a) “Agency” means a division, department, bureau, commission, board, council, city, county, city and county, district, or other political subdivision of the state.

(b) “Burial site” means, except for cemeteries and graveyards protected or recognized under another state law, a natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which human remains were deposited as a part of the death rites or ceremonies of a culture.

(c) “California Indian tribe” means a tribe located in California to which either of the following applies:

(1) It meets the definition of Indian tribe under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).

(2) It is not recognized by the federal government, but is a Native American tribe located in California that is on the contact list maintained by the Native American Heritage Commission for the purposes of consultation pursuant to Section 65352.3 of the Government Code.

(d) “Commission” means the Native American Heritage Commission established pursuant to Section 5097.91 of the Public Resources Code.

(e) “Consultation” means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, achieving agreement. Consultation between agencies or museums and California Indian tribes shall be conducted in a manner that is respectful of tribal sovereignty. Consultation also shall recognize the tribes’ potential need for confidentiality with respect to tribal traditional knowledge and all tribal information shared during the consultation.

(f) “Control” means having ownership of Native American human remains and cultural items sufficient to lawfully permit an agency or museum to treat the object as part of its collection for purposes of this chapter, whether or not the human remains and cultural items are in the physical custody of the agency or museum. Human remains and cultural items on loan to an agency or museum from another person, agency, or museum shall be deemed to be in the control of the lender.

(g) “Cultural items” shall have the same meaning as defined in Section 3001 of Title 25 of the United States Code, as it read on January 1, 2020, except that it shall mean only those items that originated in California and are subject to the definition of reasonable, as defined in subdivision (l). An item is not precluded from being a cultural item solely because of its age.

(h) “Inventory” means an itemized list that summarizes the collection of Native American human remains and associated funerary objects in the possession or control of an agency or museum. This itemized list may include the inventory list required under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).

(i) “Museum” means an agency, museum, person, or entity, including a higher educational institution, that receives state funds. For purposes of this subdivision, “receives states funds” means that the museum has received funds after January 1, 2002, from a state agency through a grant, loan, or contract, other than a procurement contract, or other arrangement by which a state agency makes available aid in the form of funds. State funds provided for any purpose to a larger entity of which the museum is a part of are considered as the museum receiving those funds for the purposes of this subdivision.

(j) “Possession” means having physical custody of Native American human remains and cultural items with a sufficient legal interest to lawfully treat the human remains and cultural items as part of a collection. “Possession” does not include human remains and cultural items over which the agency has control but that are currently on loan to another person or entity.

(k) “Preponderance of the evidence” means that the party’s evidence on a fact indicates that it is more likely than not that the fact is true. Tribal traditional knowledge alone may be sufficient to meet this standard. If there is conflicting evidence, tribal traditional knowledge shall be provided deference.

(l) “Reasonable” means fair, proper, rational, and suitable under the circumstances. Tribal traditional knowledge can and should be used to establish reasonable conclusions with respect to determining cultural affiliation and identifying cultural items.

(m) “State aboriginal territory” means lands identified as aboriginally occupied by one or more California Indian tribes. State aboriginal territory may be recognized by any of the following: consultation with California Indian tribes, treaties, including those agreed to but not ratified, a final judgment of the federal Indian Claims Commission or the United States Court of Claims, an act of the United States Congress, or an executive order.

(n) “State cultural affiliation” means that there is a reasonable relationship of shared group identity that can reasonably be traced historically or precontact between members of a present-day California Indian tribe and an identifiable earlier tribe or group. Cultural affiliation shall be established based on one or more of the following:

(1) Geography.

(2) Kinship.

(3) Biology.

(4) Archaeology.

(5) Linguistics.

(6) Folklore.

(7) Oral tradition.

(8) Historical evidence.

(9) Tribal traditional knowledge.

(10) Other information or expert opinion that reasonably leads to that conclusion.

(o) “Summary” means a document that summarizes the collection of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of an agency or museum. This document may include the summary prepared under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).

(p) “Tribal traditional knowledge” means knowledge systems embedded and often safeguarded in the traditional culture of California Indian tribes and lineal descendants, including, but not limited to, knowledge about ancestral territories, cultural affiliation, traditional cultural properties and landscapes, culturescapes, traditional ceremonial and funerary practices, lifeways, customs and traditions, climate, material culture, and subsistence. Tribal traditional knowledge is expert opinion.

(Repealed and added by Stats. 2020, Ch. 167, Sec. 5. (AB 275) Effective January 1, 2021.)

8013.
  

(a) On or before January 1, 2021, the commission shall develop a list of all California Indian tribes and their respective state aboriginal territories. The commission shall notify in writing all agencies, museums, and California Indian tribes that the commission maintains that list. This list is solely for the purpose of the repatriation of Native American tribal human remains and cultural items.

(b) (1) On or before January 1, 2022, each agency or museum that has possession or control of California Native American human remains and associated funerary objects shall complete an inventory, or update a preliminary inventory, of all these remains and associated funerary objects and, to the extent possible based on all information possessed by the agency or museum, do all of the following:

(A) Identify the geographical location, cultural affiliation, aboriginal territory, and the circumstances surrounding their acquisition.

(B) Consult, prior to new or additional inventory work being conducted, with affiliated California Indian tribes on any protocols to be used in the inventory process, including, but not limited to, all of the following:

(i) Minimizing handling.

(ii) Using a lot approach with a minimum number of individuals set at one.

(iii) Identifying human remains and associated funerary objects, burial site, or ceremonial items with tribal expertise receiving deference.

(C) (i) List in the preliminary inventory the human remains and associated funerary objects that are clearly identifiable as to state cultural affiliation with California Indian tribes. These human remains and cultural items shall be listed first to expedite the repatriation of these items.

(ii) Tribal traditional knowledge shall be used to establish state cultural affiliation and identify associated funerary objects. The museum also shall record any identifications of cultural items that are made by tribal representatives. The identifications may include broad categorical identifications, including, but not limited to, the identification of everything from a burial site as a funerary object.

(D) List the human remains and associated funerary objects that are not clearly identifiable by state cultural affiliation but that, given the totality of circumstances surrounding their acquisition and characteristics, including the unique circumstances of California history, are determined by a reasonable belief to be human remains and associated funerary objects with a state cultural affiliation with one or more California Indian tribes. Consult with California Indian tribes reasonably believed to be culturally affiliated with the items, during the compilation of the preliminary inventory as part of the determination of affiliation. If the agency or museum cannot determine which California Indian tribes are believed to be culturally affiliated with the items, tribes that may be culturally affiliated with the items, in consultation with the commission, shall be consulted during the compilation of the preliminary inventory. The consultation shall be with California Indian tribes whose state aboriginal territory includes the area from which the human remains and associated funerary objects were removed.

(E) List the human remains and associated funerary objects that are not identifiable by state cultural affiliation, but, given the totality of the circumstances, including the unique circumstances of California history, are determined by a reasonable belief to have been removed from an area identified as the state aboriginal territory of one or more California Indian tribes.

(2) The museum or agency shall engage in consultation with California Indian tribes as part of the completion of the inventory required by this subdivision. The commission may assist with the identification of California Indian tribes, but the agency or museum bears the obligation to contact and consult with the California Indian tribes.

(F) Provide the original and any updated catalogues to the consulting California Indian tribes.

(c) (1) On or before January 1, 2022, an agency or museum that has possession or control over a California Indian tribe’s unassociated funerary objects, sacred objects, or objects of cultural patrimony shall provide a written preliminary summary of the objects based upon available information held by the agency or museum. Because it may not be clear whether Native American objects are cultural items, all museum collections of Native American ethnographic or archaeological objects shall be included in the preliminary summary. The preliminary summary shall describe the scope of the collection, kinds of objects included, reference to geographical location, means and period of acquisition, state cultural affiliation, and state aboriginal territory, where reasonably ascertainable. The preliminary summary shall be in lieu of an object-by-object inventory to limit unnecessary handling and damage to the items. Each agency or museum, following preparation of a preliminary summary pursuant to this subdivision, shall consult with California Indian tribes and tribally authorized government officials and tribally authorized traditional religious leaders.

(2) The agency or museum shall engage in consultation with California Indian tribes as part of the completion of the preliminary summary required pursuant to this subdivision and shall defer to tribal recommendations for appropriate handling and treatment. The agency or museum also shall record any identifications of cultural items that are made by tribal representatives. The identifications may include broad categorical identifications, including, but not limited to, the identification of regalia objects as sacred objects or the identification of everything from a specific site as a sacred object because that site is a sacred site. The commission may assist with the identification of California Indian tribes, but the agency or museum bears the obligation to contact and consult with California Indian tribes.

(d) Within 90 days of completing the preliminary inventory and summary specified in subdivisions (b) and (c), the agency or museum shall provide a copy of the preliminary inventory and summary to the commission. The commission shall, in turn, publish notices of completion of preliminary inventories and summaries on its internet website for 30 days, and make the preliminary inventories and summaries available to any requesting potentially culturally affiliated California Indian tribe.

(e) The inventory and summary specified in subdivisions (a) and (b) shall be completed by all agencies and museums that have possession or control of Native American human remains or cultural items, regardless of whether the agency or museum is also subject to the requirements of the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). Any inventory or summary, or any portion of an inventory or summary, that has been created to meet the requirements of the Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) may be used to meet the requirements of this chapter, if appropriate.

(f) An agency or museum that has completed an inventory and summary as required by the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) shall be deemed to be in compliance with this section provided that the agency or museum provides the commission with both of the following:

(1) A copy of the inventory and summary.

(2) Preliminary inventories and summaries to comply with subdivisions (b) and (c).

(g) (1) Upon the request of a lineal descendent or California Indian tribe, an agency or museum shall supply additional available documentation to supplement the information required by subdivisions (b) and (c). This section does not authorize the initiation or completion of any academic, museum, or scientific study of human remains or cultural items.

(2) For purposes of this subdivision, “documentation” means a summary of agency or museum records, including inventories or catalogs, relevant studies, or other pertinent data for the limited purpose of determining the geographical origin, cultural affiliation, and basic facts surrounding the acquisition and accession of human remains and cultural items subject to this section.

(h) If the agency or museum determines that it does not have in its possession or control any human remains or cultural items, the agency or museum shall, in lieu of an inventory or summary, state that finding in a letter to the commission at the commission’s request.

(i) Following completion of the preliminary inventory and summary specified in subdivisions (b) and (c), each agency or museum shall update its inventory and summary within 90 days of receiving possession or control of human remains or cultural items that were not included in the preliminary inventory and summary. Upon completion, the agency or museum shall provide a copy of its updated inventory and summary to the commission.

(j) Once an agency or museum has provided a copy of its preliminary inventory and summary to the commission, the agency or museum shall consult with California Indian tribes that may be culturally affiliated with the human remains and cultural items. The commission may assist with the identification of tribes, but the agency or museum bears the obligation to contact and consult with California Indian tribes. The consultation process shall include all of the following:

(1) Preliminary inventories and summaries shall be reviewed by culturally affiliated and potentially culturally affiliated California Indian tribes, who shall have the ability to concur or disagree with the information in the preliminary inventory or summary. Tribal concurrence, disagreement, or nonresponse shall be noted on the preliminary inventory or summary by the commission at the end of the 30-day review period. If a consulting California Indian tribe disagrees with the contents of the preliminary inventory or summary, the agency or museum shall either revise the preliminary inventory or summary to correct the disputed information or the commission shall offer to initiate dispute resolution as described in Section 8016.

(2) The status of the inventory or summary shall be changed from preliminary to final by the commission once all responding California Indian tribes listed in the inventory or summary concur with the information in the inventory or summary.

(3) An inventory or summary that has been finalized may be moved back to preliminary status at the request of a consulting California Indian tribe if inaccuracies are found in the finalized inventory or summary prior to repatriation.

(4) The designation of an inventory or summary as preliminary or final is intended to reflect whether consulting California Indian tribes agree with the decisions and identifications of the agencies and museums who are preparing these documents. An inventory or summary does not need to be marked as final for a California Indian tribe to place a claim. Nothing in this section shall be construed to mean that an agency or museum may delay the repatriation of items in a final inventory or summary.

(5) Commission staff shall note a summary of all claims and the claim status on the commission’s internet website. The claim status may be pending, disputed, or accepted.

(6) Commission staff shall note the repatriation status on the commission’s internet website. The repatriation status may be in process or completed.

(7) A claim may be submitted at any time and does not need to be resubmitted.

(8) A claim may be withdrawn at any time prior to transfer of control.

(Amended by Stats. 2020, Ch. 167, Sec. 6. (AB 275) Effective January 1, 2021.)

8014.
  

(a) A lineal descendent claiming a relationship with, and requesting return of, Native American human remains or cultural items listed in the inventory or summary of an agency or museum, or that requests the return of human remains or cultural items that are not listed in the inventory or summary of an agency or museum but that are believed to be in the possession or control of the agency or museum, shall do both of the following:

(1) File a claim for the human remains and cultural items with the commission and with the agency or museum believed to have possession or control.

(2) Demonstrate that the claimant can trace their ancestry directly and without interruption by means of the traditional kinship or village system of the appropriate California Indian tribe, or by the common law system of descendancy, to a known individual whose human remains or cultural items are being claimed.

(b) A California Indian tribe claiming a relationship, state cultural affiliation, or state aboriginal territory with, and requesting return of, human remains or cultural items listed in the inventory or summary of an agency or museum, or that requests the return of human remains or cultural items that are not listed in the inventory or summary of an agency or museum but that are believed to be in the possession or control of the agency or museum, shall do both of the following:

(1) File a claim for the human remains and cultural items with the commission and with the agency or museum believed to have possession or control.

(2) Demonstrate one or both of the following:

(A) There is a relationship of shared group identity that can reasonably be traced historically or precontact with an earlier identifiable group from which the human remains or cultural items originated and the claiming California Indian tribe. Evidence of state cultural affiliation need not be provided when reasonably established by a finding 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.).

(B) The human remains or cultural items were removed from the state aboriginal territory of the claiming California Indian tribe.

(Repealed and added by Stats. 2020, Ch. 167, Sec. 8. (AB 275) Effective January 1, 2021.)

8015.
  

(a) Upon receiving a written request for repatriation of an item on the inventory, the commission shall forward a copy of the request to the agency or museum in possession of the item, if the criteria specified in subdivision (a) of Section 8016 have been met. At this time, the commission shall also publish the request for repatriation on its internet website.

(b) This section does not prohibit a requesting lineal descendent or California Indian tribe, an agency, or a museum from coordinating directly with each other on repatriation. The commission shall receive, for their records, copies of all repatriation agreements and shall have the power to enforce these agreements.

(Amended by Stats. 2020, Ch. 167, Sec. 9. (AB 275) Effective January 1, 2021.)

8016.
  

(a) An agency or museum receiving a repatriation request pursuant to Section 8014 shall repatriate human remains and cultural items if all of the following criteria have been met:

(1) The requested human remains or cultural items meet the definitions of human remains or cultural items that are subject to inventory and summary requirements under subdivisions (b) and (c) of Section 8013.

(2) The lineal descendent, state aboriginal territory, or state cultural affiliation of the human remains or cultural items is established as required under this section.

(3) The agency or museum is unable to present evidence that, if standing alone before the introduction of evidence to the contrary, would support a finding that the agency or museum has a right of possession to the requested cultural items.

(4) None of the exemptions listed in Section 10.10(c) of Title 43 of the Federal Code of Regulations apply. Scientific research shall be concluded within a reasonable period of time.

(5) All other applicable requirements of regulations adopted under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), contained in Part 10 of Title 43 of the Code of Federal Regulations, have been met, including, but not limited to, the completion of a summary and inventory, consultation with California Indian tribes, publication of notices of inventory completion and notices of intent to repatriate in the Federal Register, and, prior to disposition of culturally unidentifiable human remains to a tribe not recognized by the federal government, obtainment of the concurrence of the United States Department of the Interior.

(b) If there are no other requests for particular human remains or cultural items and there is no unresolved objection pursuant to paragraph (2) of subdivision (d), the agency or museum shall repatriate the requested human remains or cultural items to the requesting California Indian tribe or group within 90 days after posting the request for repatriation on the commission’s internet website, unless a notice of inventory completion or notice of intent to repatriate also is required under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). If the federal notice period extends beyond the 90-day period, the agency or museum shall repatriate the requested human remains or cultural items to the requesting California Indian tribe or group within 30 days following the completion of the federal notice period. Repatriation deadlines specified in this subdivision may be waived upon agreement of all parties.

(c) Within 30 days after notice has been provided by the commission, the museum or agency shall have the right to file with the commission any objection to the requested repatriation, based on its good faith belief that the requested human remains or cultural items are not culturally affiliated with the requesting California Indian tribe, have not been removed from the California Indian tribe’s state aboriginal territory, or are not subject to repatriation under this chapter.

(d) If there is more than one request for repatriation for the same item, if there is a dispute between the requesting party and the agency or museum, if there is a dispute as to the contents of an inventory or summary, or if a dispute arises in relation to the repatriation process, the commission shall notify the affected parties of this fact and the state cultural affiliation or state aboriginal territory of the item in question shall be determined in accordance with this subdivision.

(1) The disputing parties shall submit documentation describing the nature of the dispute, in accordance with standard mediation practices and the commission’s procedures, to the commission, which shall, in turn, forward the documentation to the opposing party or parties. The disputing parties shall meet within 30 days of the date of the mailing of the documentation with the goal of settling the dispute.

(2) If, after meeting, the parties are unable to settle the dispute, the commission, or a certified mediator who has the qualifications and experience appropriate to the dispute’s circumstances and has been designated by the commission, shall mediate the dispute. If the museum or agency is subject to the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), any party also may request the assistance of the federal Native American Graves Protection and Repatriation Review Committee in resolving the dispute.

(3) Each disputing party shall submit complaints and supporting evidence to the commission or designated mediator and the other opposing parties detailing their positions on the disputed issues in accordance with standard mediation practices and the commission’s mediation procedures. Each party shall have 20 days from the date the complaint and supporting evidence were mailed to respond to the complaints. All responses shall be submitted to the opposing party or parties and the commission or designated mediator.

(4) The commission or designated mediator shall review all complaints, responses, and supporting evidence submitted. Within 20 days after the date of submission of responses, the commission or designated mediator shall hold a mediation session and the parties shall come to a resolution or the mediator shall render a written decision within 7 days of the mediation session.

(5) When the disposition of human remains or cultural items is disputed, the party in possession of the human remains or cultural items shall retain possession until the mediation process is completed. Transfer or loan of human remains or cultural items shall not occur until the dispute is resolved.

(6) Deference shall be provided to tribal traditional knowledge, oral histories, documentation, and testimonies relative to other relevant categories of evidence.

(7) If the parties are unable to resolve a dispute through mediation, the dispute shall be resolved by the commission. The determination of the commission shall be deemed to constitute a final administrative remedy. Any party to the dispute seeking a review of the determination of the commission is entitled to file an action in the superior court seeking an independent judgment on the record as to whether the commission’s decision is reasonable. The independent review shall not constitute a de novo review of a decision by the commission, but shall be limited to a review of the evidence on the record. Petitions for review shall be filed with the court not later than 30 days after the final decision of the commission.

(8) No later than June 30, 2021, the commission shall develop and adopt mediation procedures that will recognize the need for mediators with qualifications and experience appropriate to a dispute’s circumstances. Dispute procedures may incorporate aspects of restorative justice practices.

(Amended by Stats. 2020, Ch. 167, Sec. 10. (AB 275) Effective January 1, 2021.)

8017.
  

If there is a committee or group of California Indian tribes authorized by their respective tribal governments to accept repatriation of human remains and cultural items originating from their state aboriginal territory or culturally affiliated with those tribal governments, the items may be repatriated to those groups.

(Amended by Stats. 2020, Ch. 167, Sec. 11. (AB 275) Effective January 1, 2021.)

8018.
  

An agency or museum that repatriates human remains and cultural items in good faith pursuant to this chapter is not liable for claims by an aggrieved party or for claims of breach of a fiduciary duty or the public trust or of violation of state law that are inconsistent with this chapter. No action shall be brought on behalf of the state or any other entity or person for damages or for injunctive relief for a claim of improper disposition of human remains or cultural items if the agency or museum has complied with the provisions of this chapter.

(Added by Stats. 2001, Ch. 818, Sec. 1. Effective January 1, 2002.)

8019.
  

Nothing in this section shall be construed to prohibit the governing body of a California Indian tribe or group authorized by Section 8017 from expressly relinquishing control over any human remains or control or title to any cultural item.

(Added by Stats. 2001, Ch. 818, Sec. 1. Effective January 1, 2002.)

8020.
  

Notwithstanding any other provision of law, and upon the request of any party or an intervenor, the commission or designated mediator may close part of a mediation session to the public if the commission or designated mediator finds that information required at the mediation session may include identification of the specific location of a burial site, human remains and cultural items or that information necessary for a determination regarding repatriation may compromise or interfere with any religious practice or custom.

(Added by Stats. 2001, Ch. 818, Sec. 1. Effective January 1, 2002.)

8021.
  

The filing of an appeal by either party automatically stays an order of the commission or a designated mediator on repatriation of human remains and cultural items.

(Added by Stats. 2001, Ch. 818, Sec. 1. Effective January 1, 2002.)

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