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The Law and American Indian Grave Protection

California Laws

When contacted concerning California's burial ground laws, Dwight Dutschke responded for the California state archaeologist referring specifically to California's Public Resources Code Secion 5097.9. Follow the link for text.

Summaries follow of burial/archaeological laws yielded through a keyword search for "archaeology" and "burial" on 2001 March 30 at the State Historic Preservation Legislation Database found at the NCSL (National Conference of State Legislatures) web site, that database then updated through 1999. These summaries are reprinted under the Fair Use doctrine of international copyright law which may be found at www4.law.cornell.edu/uscode/17/107.html

http://www.ibsgwatch.org is not responsible for any inaccuracies or timeliness of information.


New state law will speed up repatriation of ancestral remains
By Chet Barfield
STAFF WRITER (Note: Sorry, I don't know for what paper)
October 21, 2001

BARONA INDIAN RESERVATION -- It's just a small cardboard box, this package received earlier this month from the University of California Berkeley.

It holds roughly 5 pounds of what used to be considered research material.

But Barona Tribal Councilman Steve Banegas and other American Indians see it differently. To them, it is the coffin of a long-lost ancestor. The ashes and bone chips inside are not objects to be studied, stored or displayed; they are the remnants of a person to be reburied with dignity and respect.

"We believe there's a spirituality attached to these remains," Banegas said. "They're very much a part of us, our extended families."

Banegas heads a committee for 12 Kumeyaay bands that has been working since 1997 to get human remains and sacred artifacts returned from colleges and museums under a 1990 federal law.

Now their task in California is getting a big boost from a new state law.

The California Native American Graves Protection and Repatriation Act, passed by the Legislature last month and signed by Gov. Davis last Sunday, gives California tribes new muscle they lacked under the federal law.

Repatriations under the federal process were moving much too slowly and in some cases not at all, said the bill's author, Assemblyman Darrel Steinberg, D-Sacramento. He said he saw firsthand the human remains and artifacts sitting in warehouses.

"Just look at our history in terms of Native Americans," he said, "and you know we have to do better to return to them what is rightfully theirs."

Banegas said he and many others consider the way Indian remains were dug up for study throughout most of the 20th century to be grave robbing. He said the new law gives the tribes more leverage to get the items back.

"In the past, when we've dealt with these institutions, they seem to think it's a matter of ownership," he said. "What we're saying is no, it's a matter of responsibility. We're responsible to rebury this stuff, to take care of it."

The new law, which takes effect Jan. 1, covers colleges, museums and other institutions receiving public funding. It requires them to complete inventories of human remains and culturally important objects by January 2003, then notify and return those items to the appropriate tribal groups.

That was supposed to be happening already under the federal law. The difference this time is a built-in enforcement mechanism, with fines for noncompliance.

The law establishes a 10-member oversight commission reporting to the state attorney general. Seven members will be American Indians from throughout the state; three will represent museums, universities and state agencies.

Reprinted under the Fair Use www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law.


Code Book: California Water Code
Citation: 234
Section Title: Investigation, excavation and preservation of historic or prehistoric ruins

Summary:

Authorizes the Department of Water Resources to investigate, excavate, and preserve any historic or prehistoric ruin or monument, or any object of antiquity, situated in areas to be used for state water development purposes.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: California Penal Code
Citation: 622
Section Title: Objects of archeological or historical interest

Summary:

Establishes as a misdemeanor the willful injury, disfiguration, defacement, or destruction of any object or thing of archeological or historical interest or value, whether situated on private or public lands.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: California Penal Code
Citation: 623
Section Title: Caves

Summary:

(a)(2) Establishes as a misdemeanor the disturbing or alteration of any archeological evidence in any cave without the written permission of the owner of the cave, punishable by up to one year in the county jail or a fine not to exceed $1,000, or both.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Cave Activity
    • Violation / Penalty / Enforcement

Code Book: California Public Resources Code
Citation: 5020.5
Section Title: Historical resources: archeological sites and specimens

Summary:

Directs the State Historical Resources Commission to develop criteria and methods for determining the significance of archeological sites, for selecting the most significant sites, and for determining whether the most significant sites should be preserved intact or excavated and interpreted. Directs the commission to develop guidelines for the reasonable and feasible collection, storage, and display of archeological specimens.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Criteria for Evaluation of Sites
    • Curation / Ownership of Artifacts

Code Book: California Public Resources Code
Citation: 5097.1 through 5097.6
Section Title: Archeological, paleontological, and historical sites

Summary:

Requires state agencies proposing any major public works project on state lands to submit general plans for the project to the Department of Parks and Recreation prior to commencement of construction. Allows the Department of Parks and Recreation to conduct archeological site surveys on the affected state lands in order to determine whether such lands may contain any historic or prehistoric ruins, burial grounds, paleontological sites, rock art, or any other archeological, paleontological, or historical feature. Allows the state agency constructing the public works on state lands to undertake surveys, excavation, or other operations on the state lands, or to contract with the Department of Parks and Recreation to do so, as it determines to be necessary to preserve or record any archeological, paleontological, or historical features. Prohibits any archeological program conducted by the Department of Parks and Recreation from impairing, impeding, or delaying any state construction project. Prohibits the removal, destruction, or defacement of any archeological, historical, or paleontological feature situated on public lands, except with the express permission of the public agency having jurisdiction over the lands.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: California Public Resources Code
Citation: 5097.91 through 5097.94
Section Title: Native American historical, cultural and sacred sites: Native American Heritage Commission
View the text of 5097.91 at this Bkoatohee hosted page.

Summary:

Creates the nine-member Native American Heritage Commission appointed by the governor and directs that at least five members shall be elders, traditional people, or spiritual leaders of California Native American tribes. Directs the commission 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, and to perform other duties regarding the preservation and accessibility of sacred sites and burials and the disposition of Native American human remains and burial items.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Native American / Indian Affairs Commission / Office / Board

Code Book: California Public Resources Code
Citation: 5097.95
Section Title: Native American historical, cultural and sacred sites: cooperation of agencies with Native American Heritage Commission

Summary:

Directs all state and local agencies to cooperate with the Native American Heritage Commission, including the transmittal of copies of appropriate sections of all environmental impact reports relating to property identified by the commission as of special religious significance to Native Americans, or which is reasonably foreseeable as such property.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues

Code Book: California Public Resources Code
Citation: 5097.96
Section Title: Native American historical, cultural and sacred sites: inventory of sacred places

Summary:

Authorizes the Native American Heritage Commission to prepare an inventory of sacred places located on public lands and to review the administrative and statutory protections accorded to such places. Directs the commission to submit a report to the Legislature recommending actions as the commission deems necessary to preserve such sacred places and to protect the free exercise of Native American religions.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Survey / Inventory of Sites

Code Book: California Public Resources Code
Citation: 5097.97
Section Title: Native American historical, cultural and sacred sites: investigations; legal actions

Summary:

Enables the Native American Heritage Commission to investigate the effect of proposed actions by a public agency if such action may cause severe or irreparable damage to a Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property, or may bar appropriate access thereto by Native Americans. Authorizes the commission to recommend mitigation measures for consideration by the agency if the commission finds, after a public hearing, that the proposed action would result in such damage or interference. Allows the commission to ask the attorney general to take appropriate action if the agency fails to accept the mitigation measures.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Code Book: California Public Resources Code
Citation: 5097.98
Section Title: Native American historical, cultural and sacred sites: notification of discovery of Native American human remains

Summary:

Requires the Native American Heritage Commission, upon notification by a county coroner, to notify the most likely descendants regarding the discovery of Native American human remains. Enables the descendants, within 24 hours of notification by the commission, to inspect the site of the discovery of Native American human remains and to recommend to the landowner or the person responsible for the excavation work means for treating or disposing, with appropriate dignity, the human remains and any associated grave goods. Requires the owner of the land upon which Native American human remains were discovered, in the event that no descendant is identified, or the descendant fails to make a recommendation for disposition, or the land owner rejects the recommendation of the descendant, to reinter the remains and burial items with appropriate dignity on the property in a location not subject to further disturbance.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: California Public Resources Code
Citation: 5097.99
Section Title: Native American historical, cultural and sacred sites: obtaining or possessing Native American artifacts or human remains

Summary:

Prohibits acquisition or possession of Native American artifacts or human remains taken from a Native American grave or cairn after January 1, 1984, except in accordance with an agreement reached with the Native American Heritage Commission.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Violation / Penalty / Enforcement

Code Book: California Government Code
Citation: 6254
Section Title: Exemption of public records from disclosure

Summary:

(r) Exempts from disclosure public records of Native American graves, cemeteries, and sacred places maintained by the Native American Heritage Commission.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues

Code Book: California Health and Safety Code
Citation: 7050.5
Section Title: Removal of human remains from location other than a dedicated cemetery

Summary:

(c) Requires a county coroner, in the event of the discovery of human remains in any location other than a dedicated cemetery, to contact the Native American Heritage Commission within 24 hours if the coroner determines that the remains are not subject to his or her authority and if the coroner recognizes the remains to be those of a Native American.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: California Government Code
Citation: 12600 through 12612
Section Title: Attorney General: environmental action

Summary:

Permits the attorney general to intervene in any judicial or administrative proceeding in which facts are alleged concerning pollution or adverse environmental effects that could affect the public generally. Authorizes the attorney general to maintain an action for equitable relief in the name of the people of the state against any person for the protection o f the natural resources of the state from pollution, impairment or destruction. Includes historic sites in the definition of natural resources. Allows a defendant in such an action to show, by way of an affirmative defense, that there is no more feasible and prudent alternative to the defendant's conduct, and that such conduct is consistent with the protection of the public, health, safety and welfare. Authorizes the court, in granting temporary or permanent equitable relief, to impose such conditions upon the defendant as are required to protect the natural resources of the state from pollution, impairment or destruction.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: California Public Resources Code
Citation: 21083.2
Section Title: California Environmental Quality Act: archeological resources

Summary:

Directs the lead agency on any project undertaken, assisted, or permitted by the state to include in its environmental impact report for the project a determination of the project's effect on unique archeological resources. Defines a unique archeological resource as one which contains information needed to answer an important scientific research question for which there is a demonstrable public interest; has a particular quality such as being the oldest or best example of a type; or is directly associated with a scientifically recognized important prehistoric or historic event or person. Enables the lead agency to require an applicant to make reasonable efforts to preserve any affected unique archeological resources in place or to undertake mitigation measures if such resources are not preserved in place. Requires the project applicant to guarantee to pay one-half the estimated cost of such mitigation and enables the lead agency to reduce any final mitigation measures to those which can be funded with the money guaranteed by the project applicant plus any money voluntarily guaranteed by any other persons within 60 days of the agency's decision. Restricts excavation as mitigation to those parts of the unique archeological resource that would be damaged or destroyed by the project. Sets specific limits on the amount that a project applicant may be required to pay for mitigation measures. Requires in most cases that the field excavation phase of a mitigation plan shall be completed within 90 days after final approval is given for the physical development of the project. Prohibits any part of this section from nullifying protections for Indian cemeteries under any other provision of law.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority



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California government, preservation and state archaeological resource links.



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