BILL NUMBER: AB 978 CHAPTERED
BILL TEXT
CHAPTER 818
FILED WITH SECRETARY OF STATE OCTOBER 13, 2001
APPROVED BY GOVERNOR OCTOBER 12, 2001
PASSED THE ASSEMBLY SEPTEMBER 13, 2001
PASSED THE SENATE SEPTEMBER 10, 2001
AMENDED IN SENATE AUGUST 20, 2001
AMENDED IN SENATE JULY 17, 2001
AMENDED IN SENATE JULY 3, 2001
AMENDED IN ASSEMBLY MAY 22, 2001
AMENDED IN ASSEMBLY APRIL 16, 2001
INTRODUCED BY Assembly Member Steinberg
(Coauthors: Assembly Members Aroner, Calderon, Chan, Corbett,
Correa, Frommer, Hertzberg, Hollingsworth, Kelley, Koretz, Leonard,
Nation, Robert Pacheco, Pavley, Strickland, Strom-Martin, Vargas,
Washington, Wesson, and Zettel)
(Coauthors: Senators Alpert, Battin, Brulte, Burton, Chesbro,
Figueroa, Karnette, Kuehl, McClintock, Soto, and Vincent)
FEBRUARY 23, 2001
An act to add Chapter 5 (commencing with Section 8010) to Part 2
of Division 7 of the Health and Safety Code, relating to human
remains.
LEGISLATIVE COUNSEL'S DIGEST
AB 978, Steinberg. Native American graves protection and
repatriation.
Existing law contains provisions regarding the regulation of human
remains disposal and burials.
This bill, the California Native American Graves Protection and
Repatriation Act of 2001, would require all state agencies and
museums that receive state funding and that have possession or
control over collections of human remains or cultural items, as
defined, to complete an inventory and summary of these remains and
items on or before January 1, 2003, with certain exceptions, would
provide a process for the identification and repatriation of these
items to the appropriate tribes, and would authorize the imposition
of civil penalties for failure to comply with the requirements of
this bill. The bill would also establish the Repatriation Oversight
Commission, composed of 10 members, with specified duties relating to
the repatriation process.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 5 (commencing with Section 8010) is added to
Part 2 of Division 7 of the Health and Safety Code, to read:
CHAPTER 5. CALIFORNIA NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION
Article 1. General Provisions
8010. This chapter shall be known, and may be cited as the
California Native American Graves Protection and Repatriation Act of
2001.
8011. It is the intent of the Legislature to do all of the
following:
(a) Provide a seamless and consistent state policy to ensure that
all California Indian human remains and cultural items be treated
with dignity and respect.
(b) Apply the state's repatriation policy consistently with the
provisions of the Native American Graves Protection and Repatriation
Act (25 U.S.C. Sec. 3001 et seq.), which was enacted in 1990.
(c) Facilitate the implementation of the provisions of the federal
Native American Graves Protection and Repatriation Act with respect
to publicly funded agencies and museums in California.
(d) Encourage voluntary disclosure and return of remains and
cultural items by an agency or museum.
(e) Provide a mechanism whereby lineal descendants and culturally
affiliated California Indian tribes that file repatriation claims for
human remains and cultural items under the Native American Graves
Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) or
under this chapter with California state agencies and museums may
request assistance from the commission in ensuring that state
agencies and museums are responding to those claims in a timely
manner and in facilitating the resolution of disputes regarding those
claims.
(f) Provide a mechanism whereby California tribes that are not
federally recognized may file claims with agencies and museums for
repatriation of human remains and cultural items.
Article 2. State Cultural Affiliation and Repatriation
8012. As used in this chapter, terms shall have the same meaning
as in the federal Native American Graves Protection and Repatriation
Act (25 U.S.C. Sec. 3001 et seq.), as interpreted by federal
regulations, except that the following terms shall have the following
meaning:
(a) "Agency" means any division, department, bureau, commission,
board, council, city, county, city and county, district, or other
political subdivision of the state, but does not include any school
district.
(b) "Burial site" means, except for cemeteries and graveyards
protected under existing state law, any natural or prepared physical
location, whether originally below, on, or above the surface of the
earth, into which human remains were intentionally deposited as a
part of the death rites or ceremonies of a culture.
(c) "Commission" means the Repatriation Oversight Commission
established pursuant to Article 3 (commencing with Section 8025).
(d) "Cultural items" shall have the same meaning as defined by
Section 3001 of Title 25 of the United States Code, except that it
shall mean only those items that originated in California.
(e) "Control" means having ownership of human remains and cultural
items sufficient to lawfully permit a museum or agency 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 museum or agency. Items on loan to a museum
or agency from another person, museum, or agency shall be deemed to
be in the control of the lender, and not the borrowing museum or
agency.
(f) "State cultural affiliation" means that there is a
relationship of shared group identity that can reasonably be traced
historically or prehistorically between members of a present-day
California Indian Tribe, as defined in subdivision (i), and an
identifiable earlier tribe or group. Cultural affiliation is
established when the preponderance of the evidence, based on
geography, kinship, biology, archaeology, linguistics, folklore, oral
tradition, historical evidence, or other information or expert
opinion, reasonably leads to such a conclusion.
(g) "Inventory" means an itemized list that summarizes the
collection of human remains and associated funerary objects in the
possession or control of an agency or museum. This itemized list may
be the inventory list required under the federal Native American
Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(h) "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 be the summary prepared under the federal Native
American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001
et seq.).
(i) "Museum" means an entity, including a higher educational
institution, excluding school districts, that receives state funds.
(j) "California Indian tribe" means any tribe located in
California to which any 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
indigenous to the territory that is now known as the State of
California, and both of the following apply:
(A) It is listed in the Bureau of Indian Affairs Branch of
Acknowledgement and Research petitioner list pursuant to Section 82.1
of Title 25 of the Federal Code of Regulations.
(B) It is determined by the commission to be a tribe that is
eligible to participate in the repatriation process set forth in this
chapter. The commission shall publish a document that lists the
California tribes meeting these criteria, as well as authorized
representatives to act on behalf of the tribe in the consultations
required under paragraph (4) of subdivision (a) of Section 8013 and
in matters pertaining to repatriation under this chapter. Criteria
that shall guide the commission in making the determination of
eligibility shall include, but not be limited to, the following:
(i) A continuous identity as an autonomous and separate tribal
government.
(ii) Holding itself out as a tribe.
(iii) The tribe as a whole has demonstrated aboriginal ties to the
territory now known as the State of California and its members can
demonstrate lineal descent from the identifiable earlier groups that
inhabited a particular tribal territory.
(iv) Recognition by the Indian community and non-Indian entities
as a tribe.
(v) Demonstrated membership criteria.
(k) "Possession" means having physical custody of human remains
and cultural items with a sufficient legal interest to lawfully treat
the human remains and cultural items as part of a collection. The
term does not include human remains and cultural items on loan to an
agency or museum.
(l) "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.
8013. (a) Any agency or museum that has possession or control
over collections of California Native American human remains and
associated funerary objects shall complete an 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:
(1) Identify the geographical location, state cultural
affiliation, and the circumstances surrounding their acquisition.
(2) List in the inventory the human remains and associated
funerary objects that are clearly identifiable as to state cultural
affiliation with California Indian tribes. These items shall be
listed first in order to expedite the repatriation of these items.
(3) List the human remains and associated funerary objects that
are not clearly identifiable by cultural affiliation but that, given
the totality of circumstances surrounding their acquisition and
characteristics 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 believed by the agency or museum to be
affiliated with the items, during the compilation of the inventory as
part of the determination of affiliation. If the agency or museum
cannot determine which California Indian tribes are believed to be
affiliated with the items, then tribes that may be affiliated with
the items shall be consulted during the compilation of the inventory.
(b) Any agency or museum that has possession or control over
collections of California Indian unassociated funerary objects,
sacred objects, or objects of cultural patrimony shall provide a
written summary of the objects based upon available information held
by the agency or museum. The summary shall describe the scope of the
collection, kinds of objects included, reference to geographical
location, means and period of acquisition, and state cultural
affiliation, where readily ascertainable. The summary shall be in
lieu of an object-by-object inventory. Each agency or museum,
following preparation of a summary pursuant to this subdivision,
shall consult with California Indian tribes and tribally authorized
government officials and traditional religious leaders.
(c) Each agency or museum shall complete the inventories and
summaries required by subdivisions (a) and (b) by January 1, 2003, or
within one year of the date on which the commission issues the list
of California Indian tribes provided for under paragraph (2) of
subdivision (i) of Section 8012, whichever is later. To the extent
that this section requires the inventory and summary to include items
not required to be included in the inventory and summary under the
federal Native American Graves Protection and Repatriation Act (25
U.S.C. Sec. 3001 et seq.), the agency or museum shall supplement its
inventory and summary under this section to include those additional
items.
(d) Upon request of a California Indian tribe, a museum or agency
shall supply additional available documentation to supplement the
information required by subdivisions (a) and (b). For purposes of
this paragraph, "documentation" means a summary of existing museum or
agency 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 California Native
American human remains and cultural items subject to this section.
This section shall not be construed to authorize the completion or
initiation of any scientific study of human remains or cultural
items.
(e) Within 90 days of completing the inventory and summary
specified in subdivisions (a) and (b), the agency or museum shall
provide a copy of the inventory and summary to the commission. The
commission shall, in turn, publish notices of completion of summaries
and inventories on its Web site for 30 days, and make the inventory
and summary available to any requesting tribe or state affiliated
tribe.
(f) 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.
(g) Any agency or museum that has completed inventories and
summaries on or before January 1, 2002, 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 does both of the
following:
(1) Provide a copy of the inventories and summaries to the
commission by July 1, 2002, or within 30 days of the date on which
the commission is formed, whichever is later.
(2) Prepare supplementary inventories and summaries as necessary
to comply with subdivisions (a) and (b) for those portions of their
collections that originate from California and that have not been
determined to be culturally affiliated with federally recognized
tribes which, in the case of inventories, are those portions of the
collections of an agency or museum that have been identified on their
inventories under the federal Native American Graves Protection and
Repatriation Act (25 U.S.C. Sec. 3001 et seq.) as "culturally
unidentifiable," by January 1, 2003, or within one year of the date
on which the commission issues the list of California Indian tribes
provided for under paragraph (2) of subdivision (j) of Section 8012,
whichever is later.
(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 initial inventories and summaries
specified in subdivisions (a) and (b), each agency or museum shall
update its inventories and summaries whenever the agency or museum
receives possession or control of human remains or cultural items
that were not included in the initial inventories and summaries.
Upon completion, the agency or museum shall provide a copy of its
updated inventories and summaries to the commission. Nothing in this
section shall be construed to mean that a museum or agency may delay
repatriation of items in the initial inventory until the updating of
all inventories and summaries is completed.
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.
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 (b) of Section 8016 have been met.
At this time, the commission shall also publish the request for
repatriation on its Web site for 30 days. If there are no other
requests for a particular item and there is not unresolved objection
pursuant to subdivision (c) of Section 8016 within 90 days of the
date of distribution and publication of the inventory or summary and
completion of any federal Native American Graves Protection and
Repatriation Act (25 U.S.C. Sec. 3001 et seq.) repatriation process
related to the item, the agency or museum in possession of the item
shall repatriate the requested item to the requesting party. This
repatriation shall occur within 30 days after the last day of the
90-day period, or on a date agreed upon by all parties.
(b) Nothing in this section shall be construed to prohibit any
requesting party, a tribe, an agency, or a museum from coordinating
directly with each other on repatriation, or to prohibit the
repatriation at any time of any undisputed items to the requesting
party prior to completion of any requirements set forth in this
chapter. The commission shall receive, for their records, copies of
all repatriation agreements and shall have the power to enforce these
agreements.
8016. (a) If there is more than one request for repatriation for
the same item, or there is a dispute between the requesting party and
the agency or museum, or if a dispute arises in relation to the
repatriation process, the commission shall notify the affected
parties of this fact and the cultural affiliation of the item in
question shall be determined in accordance with this section.
(b) Any agency or museum receiving a repatriation request pursuant
to subdivision (a) 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 requirements under subdivision (a) of Section 8013.
(2) The state cultural affiliation of the human remains or
cultural items is established as required under subdivision (f) of
Section 8012.
(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.
(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.
(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
tribe or are not subject to repatriation under this chapter.
(d) 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.
(e) If, after meeting pursuant to subdivision (b), the parties are
unable to settle the dispute, the commission, or a certified
mediator designated by the commission in accordance with subdivision
(b) of Section 8026, shall mediate the dispute.
(f) 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.
(g) 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 render a
decision within seven days of the date of the mediation session.
(h) When the disposition of any items are disputed, the party in
possession of the items shall retain possession until the mediation
process is completed. No transfer of items shall occur until the
dispute is resolved.
(i) Tribal oral histories, documentations, and testimonies shall
not be afforded less evidentiary weight than other relevant
categories of evidence on account of being in those categories.
(j) 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 judgement on the record as
to whether the commission's decision is supported by a preponderance
of the evidence. 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.
8017. If there is a committee or group of tribes authorized by
their respective tribal governments to accept repatriation of items
originating from their region and culturally affiliated with those
tribal governments, then the items may be repatriated to those
groups.
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.
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.
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.
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.
Article 3. Repatriation Oversight Commission
8025. (a) There is hereby established the Repatriation Oversight
Commission composed of 10 members as follows:
(1) Two voting members appointed by the Governor from nominations
made by federally recognized California tribes within the state. One
member each shall represent the central and southern areas of the
state.
(2) Two voting members appointed by the Speaker of the Assembly
from nominations made by federally recognized California tribes
within the state. One member each shall represent the northern and
southern areas of the state.
(3) Two voting members appointed by the Senate Committee on Rules
from nominations made by federally recognized California tribes
within the state. One member each shall represent the northern and
central areas of the state.
(4) One voting member appointed by the Governor from nominations
submitted by state agencies or state-funded universities and
colleges.
(5) One voting member appointed by the Governor from nominations
submitted by the University of California.
(6) One voting member appointed by the Governor from nominations
submitted by the California Association of Museums.
(7) One voting member of a nonfederally recognized tribe appointed
by the Governor from nominations submitted by the Native American
Heritage Commission.
(b) The executive secretary of the commission shall be appointed
by the Governor and shall be an ex officio nonvoting member of the
commission.
8026. The commission shall meet when necessary, and at least
quarterly shall perform the duties specified in this section
including, but not limited to, the following:
(a) Order the repatriation of human remains and cultural items in
accordance with this chapter.
(b) Establish mediation procedures and, upon application of the
parties involved, mediate disputes between California 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 provisions of this chapter. Members of the commission shall
receive training in mediation for purposes of this subdivision. The
commission may delegate its responsibility to mediate disputes to a
certified mediator.
(c) Administer the budget of the commission.
(d) Establish and maintain a website for communication between
tribes and museums and agencies.
(e) Upon the request of California tribes or museums and agencies,
analyze and make decisions regarding providing financial assistance
to aid in specific repatriation activities.
(f) Accept grants or donations, real or in-kind, to carry out the
purposes of this chapter.
(g) By making recommendations to the Legislature, assist
California tribes in obtaining the dedication of appropriate state
lands for the purposes of reinterment of human remains and cultural
items.
(h) Request and utilize the advice and services of all federal,
state, and local agencies as necessary in carrying out the purposes
of this chapter.
(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 this
chapter.
(j) 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.
(k) Impose administrative civil penalties against any agency or
museum that is determined by the commission to have violated any
provision of this chapter.
(l) Establish those rules and regulations the commission
determines to be necessary for the administration of this chapter.
8027. (a) Members of the commission shall not receive a salary
but shall be entitled to reimbursement for actual expenses incurred
in the performance of their duties.
(b) The chairperson
of the commission shall be elected by the members.
8028. (a) The term of any member of the commission shall be for
three years, and each member shall serve no more than two consecutive
terms. Staggered terms shall be established by the drawing of lots
at the first meeting of the commission so that a simple majority of
the members shall initially serve a three-year term, and the
remainder initially a two-year term.
(b) If a vacancy occurs, a replacement shall be named by the same
constituency as the constituency that was represented by the member
whose membership is being replaced. Replacements shall serve only
for the remainder of the vacant member's term.
Article 4. Penalties and Enforcement Procedures
8029. (a) Any agency or museum that fails to comply with the
requirements of this chapter may be assessed a civil penalty by the
commission, not to exceed twenty thousand dollars ($20,000) for each
violation, pursuant to regulations adopted by the commission. A
penalty assessed under this section shall be determined on the record
after the opportunity for a hearing.
(b) In assessing a penalty under this section, the commission
shall consider the following factors, in addition to any other
relevant factors, in determining the amount of the penalty:
(1) The archaeological, historical, or commercial value of the
item involved.
(2) The cultural and spiritual significance of the item involved.
(3) The damages suffered, both economic and noneconomic, by the
aggrieved party.
(4) The number of violations that have occurred.
(c) If any agency or museum fails to pay a civil penalty pursuant
to a final order issued by the commission and the time for judicial
review has passed or the party subject to the civil penalty has
appealed the penalty or after a final judgment has been rendered on
appeal of the order, the Attorney General shall act on behalf of the
commission to institute a civil action in an appropriate court to
collect the penalty.
(d) An agency or museum shall not be subject to civil penalties
for actions taken in good faith to comply with the federal Native
American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001
et seq.).
8030. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.