Chapter 1.75Native American Historical, Cultural, and Sacred Sites

Section § 5097.9

Explanation

This law prohibits public agencies and private parties using public property from interfering with Native American religious practices or damaging sacred sites on such property, unless absolutely necessary for public interest. It applies to agreements made after July 1, 1977, and does not limit environmental protection laws. City and county properties, except large parklands, are exempt, but other statutes still protect Native American cemeteries.

No public agency, and no private party using or occupying public property, or operating on public property, under a public license, permit, grant, lease, or contract made on or after July 1, 1977, shall in any manner whatsoever interfere with the free expression or exercise of Native American religion as provided in the United States Constitution and the California Constitution; nor shall any such agency or party cause severe or irreparable damage to any Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property, except on a clear and convincing showing that the public interest and necessity so require. The provisions of this chapter shall be enforced by the commission, pursuant to Sections 5097.94 and 5097.97.
The provisions of this chapter shall not be construed to limit the requirements of the Environmental Quality Act of 1970, Division 13 (commencing with Section 21000).
The public property of all cities, counties, and city and county located within the limits of the city, county, and city and county, except for all parklands in excess of 100 acres, shall be exempt from the provisions of this chapter. Nothing in this section shall, however, nullify protections for Indian cemeteries under other statutes.
Native American religion public property use sacred sites protection free expression ceremonial sites public license irreplaceable damage Native American sanctified cemetery sacred shrine damage Environmental Quality Act city and county exemptions large parklands commission enforcement public interest requirement Native American protections
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.91

Explanation

The Native American Heritage Commission is a part of California's state government. It has nine members who are appointed by the Governor and approved by the Senate. In this context, when the text refers to 'commission,' it means the Native American Heritage Commission.

There is in state government a Native American Heritage Commission, consisting of nine members appointed by the Governor with the advice and consent of the Senate. For purposes of this chapter, “commission” means the Native American Heritage Commission.
Native American Heritage Commission state government nine members Governor appointment Senate approval commission definition California advisory body heritage preservation cultural resources Native American heritage government commission appointment process member roles commission structure
(Amended by Stats. 2006, Ch. 863, Sec. 2. Effective January 1, 2007.)

Section § 5097.92

Explanation

This section states that at least five of the nine commission members must be elders, traditional people, or spiritual leaders from California Native American tribes. These members are nominated by Native American organizations, tribes, or groups within the state. Additionally, the commission's executive secretary is appointed by the Governor.

At least five of the nine members shall be elders, traditional people, or spiritual leaders of California Native American tribes, nominated by Native American organizations, tribes, or groups within the state. The executive secretary of the commission shall be appointed by the Governor.
California Native American tribes elders traditional people spiritual leaders Native American organizations nominations commission members executive secretary Governor appointment tribal representation tribal leaders Native American groups cultural leadership state nominations tribal involvement
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.93

Explanation

This law states that commission members will not receive any pay for their service, but they can get back the money they spend on necessary expenses related to their duties.

The members of the commission shall serve without compensation but shall be reimbursed their actual and necessary expenses.
commission members no compensation reimbursement necessary expenses actual expenses service reimbursement volunteer service unpaid position expense coverage commission duties financial reimbursement member costs non-salaried expense policy service costs
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.94

Explanation

This law outlines the roles and responsibilities of a commission focused on protecting Native American cultural heritage in California. The commission's duties include: identifying and cataloging places of importance to Native Americans on private lands, advising on sacred site access, preserving sacred places, and engaging with property owners to protect these areas. They provide mediation in disputes over Native American burials and work with state and federal agencies to ensure access to sacred sites on public lands.

They also accept donations to support their work, make recommendations regarding Native American artifacts, enforce repatriation laws, and maintain communication with tribes, museums, and agencies. Additionally, the commission may levy fees for catalog and inventory searches and review policies related to Native American heritage sites.

The commission shall have the following powers and duties:
(a)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(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 to those sacred places by Native Americans.
(c)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(d) To appoint necessary clerical staff.
(e)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(h) To request and use 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)CA Public Resources Code § 5097.94(i) To assist Native Americans in obtaining appropriate access to sacred places that are located on public lands for ceremonial or spiritual activities.
(j)CA Public Resources Code § 5097.94(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)Copy CA Public Resources Code § 5097.94(k)
(1)Copy CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(k)(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)CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(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)Copy CA Public Resources Code § 5097.94(n)
(1)Copy CA Public Resources Code § 5097.94(n)(1) To assume the powers and duties of the former Repatriation Oversight Commission and meet, when necessary and at least quarterly, to perform all of the following duties:
(A)CA Public Resources Code § 5097.94(n)(1)(A) Order the repatriation of human remains and cultural items in accordance with the act.
(B)CA Public Resources Code § 5097.94(n)(1)(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)CA Public Resources Code § 5097.94(n)(1)(C) Establish and maintain an internet website for communication among tribes and museums and agencies.
(D)CA Public Resources Code § 5097.94(n)(1)(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)CA Public Resources Code § 5097.94(n)(1)(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)Copy CA Public Resources Code § 5097.94(n)(1)(F)
(i)Copy CA Public Resources Code § 5097.94(n)(1)(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)CA Public Resources Code § 5097.94(n)(1)(F)(i)(ii) A report submitted to the Legislature pursuant to this subparagraph shall be submitted in compliance with Section 9795 of the Government Code.
(G)CA Public Resources Code § 5097.94(n)(1)(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)CA Public Resources Code § 5097.94(n)(1)(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)CA Public Resources Code § 5097.94(n)(1)(I) Establish those rules and regulations the commission determines to be necessary for the administration of the act.
(2)CA Public Resources Code § 5097.94(n)(2) For purposes of this subdivision, the following terms have the following meanings:
(A)CA Public Resources Code § 5097.94(n)(2)(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)CA Public Resources Code § 5097.94(n)(2)(B) “Tribe” means a “California Indian tribe” as that term is used in the act.
(o)Copy CA Public Resources Code § 5097.94(o)
(1)Copy CA Public Resources Code § 5097.94(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)CA Public Resources Code § 5097.94(o)(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)CA Public Resources Code § 5097.94(p) Review and provide comment and guidance on all policies and procedures proposed pursuant to Article 3 (commencing with Section 8025) and Article 3.5 (commencing with Section 8028.7) of Chapter 5 of Part 2 of Division 7 of the Health and Safety Code.
Native American cultural heritage sacred sites private land access cemetery preservation site cataloging mediation of burial disputes repatriation of remains sacred site acquisition tribal consultation archaeological site protection landowner agreements repatriation oversight California Native American access sensitive burial treatment tribal notification
(Amended by Stats. 2024, Ch. 80, Sec. 112. (SB 1525) Effective January 1, 2025.)

Section § 5097.95

Explanation

This law requires state and local agencies to assist a commission by sharing environmental impact reports that focus on properties deemed significant for Native American religious purposes. The commission will cover the costs of these transmissions.

Each state and local agency shall cooperate with the commission in carrying out its duties under this chapter. Such cooperation shall include, but is not limited to, transmitting copies, at the commission’s expense, 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.
state cooperation local agency cooperation environmental impact reports property significance Native American religious sites special religious significance transmitting reports commission assistance property identification environmental reports cultural importance Native American heritage agency responsibilities religious significance property foreseeability
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.96

Explanation

This law section allows the commission to create a list of Native American sacred places on public lands. They are tasked with reviewing how these places are currently protected by law. By January 1, 1979, the commission must report to the Legislature with their findings and suggest actions to help preserve these sacred sites and protect Native American religious practices related to them.

The commission may prepare an inventory of Native American sacred places that are located on public lands and shall review the current administrative and statutory protections accorded to such places. The commission shall submit a report to the Legislature no later than January 1, 1979, in which the commission shall report its findings as a result of these efforts and shall recommend such actions as the commission deems necessary to preserve these sacred places and to protect the free exercise of the Native American religions.
Native American sacred places public lands legislative report preservation efforts religious practices protection inventory of sacred sites administrative protections statutory protections free exercise of religion safeguarding cultural heritage state commission duties cultural preservation report submission deadline religious site protection public land management
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.97

Explanation

If a Native American group warns that a public agency's planned activity might harm a sacred site on public land, the commission will investigate. If, after a public hearing, they confirm potential harm, they can suggest changes to the plan. If the agency ignores these suggestions and the proposed action threatens to cause serious, irreparable damage, the commission can ask the Attorney General to intervene legally.

In the event that any Native American organization, tribe, group, or individual advises the commission that a proposed action by a public agency 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, the commission shall conduct an investigation as to the effect of the proposed action. Where the commission finds, after a public hearing, that the proposed action would result in such damage or interference, the commission may recommend mitigation measures for consideration by the public agency proposing to take such action. If the public agency fails to accept the mitigation measures, and if the commission finds that the proposed action would do severe and irreparable damage to a Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property, the commission may ask the Attorney General to take appropriate legal action pursuant to subdivision (g) of Section 5097.94.
Native American rights sacred sites protection public land management mitigation measures cultural heritage public agency actions irreparable damage sacred sites commission investigation ceremonial site protection sanctified cemetery access for Native Americans public hearing Attorney General intervention cultural site preservation
(Repealed and added by Stats. 1976, Ch. 1332.)

Section § 5097.98

Explanation

This law outlines what must happen if Native American human remains are found during land development. The person who finds the remains must notify likely descendants, and they can visit the site with the owner's permission. The descendants have 48 hours to suggest what to do with the remains, which can include analysis, preservation, or handing over to them. The landowner needs to pause work to consult descendants about their preferences.

If they can't agree or no descendants are found, remains should be respectfully reburied in a place that won't be disturbed again. Measures like recording the site or creating a conservation area can protect it. Discussions should respect cultural values, and putting plans into action is exempt from certain environmental and coastal regulations.

(a)CA Public Resources Code § 5097.98(a) Whenever the commission receives notification of a discovery of Native American human remains from a county coroner pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, it shall immediately notify those persons it believes to be most likely descended from the deceased Native American. The descendants may, with the permission of the owner of the land, or his or her authorized representative, inspect the site of the discovery of the Native American human remains and may recommend to the owner or the person responsible for the excavation work means for treatment or disposition, with appropriate dignity, of the human remains and any associated grave goods. The descendants shall complete their inspection and make recommendations or preferences for treatment within 48 hours of being granted access to the site.
(b)CA Public Resources Code § 5097.98(b) Upon the discovery of Native American remains, the landowner shall ensure that the immediate vicinity, according to generally accepted cultural or archaeological standards or practices, where the Native American human remains are located, is not damaged or disturbed by further development activity until the landowner has discussed and conferred, as prescribed in this section, with the most likely descendants regarding their recommendations, if applicable, taking into account the possibility of multiple human remains. The landowner shall discuss and confer with the descendants all reasonable options regarding the descendants’ preferences for treatment.
(1)CA Public Resources Code § 5097.98(b)(1) The descendants’ preferences for treatment may include the following:
(A)CA Public Resources Code § 5097.98(b)(1)(A) The nondestructive removal and analysis of human remains and items associated with Native American human remains.
(B)CA Public Resources Code § 5097.98(b)(1)(B) Preservation of Native American human remains and associated items in place.
(C)CA Public Resources Code § 5097.98(b)(1)(C) Relinquishment of Native American human remains and associated items to the descendants for treatment.
(D)CA Public Resources Code § 5097.98(b)(1)(D) Other culturally appropriate treatment.
(2)CA Public Resources Code § 5097.98(b)(2) The parties may also mutually agree to extend discussions, taking into account the possibility that additional or multiple Native American human remains, as defined in this section, are located in the project area, providing a basis for additional treatment measures.
(c)CA Public Resources Code § 5097.98(c) For the purposes of this section, “conferral” or “discuss and confer” means the meaningful and timely discussion and careful consideration of the views of each party, in a manner that is cognizant of all parties’ cultural values, and where feasible, seeking agreement. Each party shall recognize the other’s needs and concerns for confidentiality of information provided to the other.
(d)Copy CA Public Resources Code § 5097.98(d)
(1)Copy CA Public Resources Code § 5097.98(d)(1) Human remains of a Native American may be an inhumation or cremation, and in any state of decomposition or skeletal completeness.
(2)CA Public Resources Code § 5097.98(d)(2) Any items associated with the human remains that are placed or buried with the Native American human remains are to be treated in the same manner as the remains, but do not by themselves constitute human remains.
(e)CA Public Resources Code § 5097.98(e) Whenever the commission is unable to identify a descendant, or the descendants identified fail to make a recommendation, or the landowner or his or her authorized representative rejects the recommendation of the descendants and the mediation provided for in subdivision (k) of Section 5097.94, if invoked, fails to provide measures acceptable to the landowner, the landowner or his or her authorized representative shall reinter the human remains and items associated with Native American human remains with appropriate dignity on the property in a location not subject to further and future subsurface disturbance. To protect these sites, the landowner shall do one or more of the following:
(1)CA Public Resources Code § 5097.98(e)(1) Record the site with the commission or the appropriate Information Center.
(2)CA Public Resources Code § 5097.98(e)(2) Utilize an open-space or conservation zoning designation or easement.
(3)CA Public Resources Code § 5097.98(e)(3) Record a document with the county in which the property is located. The document shall be titled “Notice of Reinterment of Native American Remains” and shall include a legal description of the property, the name of the owner of the property, and the owner’s acknowledged signature, in addition to any other information required by this section. The document shall be indexed as a notice under the name of the owner.
(f)CA Public Resources Code § 5097.98(f) Upon the discovery of multiple Native American human remains during a ground disturbing land development activity, the landowner may agree that additional conferral with the descendants is necessary to consider culturally appropriate treatment of multiple Native American human remains. Culturally appropriate treatment of the discovery may be ascertained from a review of the site utilizing cultural and archaeological standards. Where the parties are unable to agree on the appropriate treatment measures the human remains and items associated and buried with Native American human remains shall be reinterred with appropriate dignity, pursuant to subdivision (e).
(g)CA Public Resources Code § 5097.98(g) Notwithstanding Section 5097.9, this section, including those actions taken by the landowner or his or her authorized representative to implement this section and any action taken to implement an agreement developed pursuant to subdivision (l) of Section 5097.94, shall be exempt from the requirements of the California Environmental Quality Act (Division 13 (commencing with Section 21000)).
(h)CA Public Resources Code § 5097.98(h) Notwithstanding Section 30244, this section, including those actions taken by the landowner or his or her authorized representative to implement this section and any action taken to implement an agreement developed pursuant to subdivision (l) of Section 5097.94, shall be exempt from the requirements of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000)).
Native American remains descendant notification site inspection land development pause cultural treatment options reinterment process grave goods cultural discussion environmental regulation exemption coastal regulation exemption archaeological standards consultation with descendants treatment preferences preservation in place property protection measures
(Amended by Stats. 2009, Ch. 208, Sec. 6. (SB 833) Effective January 1, 2010.)

Section § 5097.99

Explanation

This law makes it illegal to take or have Native American artifacts or human remains from graves or burial sites, unless the person has legal permission or is following a specific agreement. If someone intentionally takes or has these items after January 1, 1988, and they do so knowingly, they can be charged with a felony and sent to jail. Additionally, if someone removes these items without legal permission and plans to sell, dissect, or is being intentionally harmful, they will also face felony charges and potential imprisonment.

(a)CA Public Resources Code § 5097.99(a) No person shall obtain or possess any Native American artifacts or human remains which are taken from a Native American grave or cairn on or after January 1, 1984, except as otherwise provided by law or in accordance with an agreement reached pursuant to subdivision (l) of Section 5097.94 or pursuant to Section 5097.98.
(b)CA Public Resources Code § 5097.99(b) Any person who knowingly or willfully obtains or possesses any Native American artifacts or human remains which are taken from a Native American grave or cairn after January 1, 1988, except as otherwise provided by law or in accordance with an agreement reached pursuant to subdivision (l) of Section 5097.94 or pursuant to Section 5097.98, is guilty of a felony which is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
(c)CA Public Resources Code § 5097.99(c) Any person who removes, without authority of law, any Native American artifacts or human remains from a Native American grave or cairn with an intent to sell or dissect or with malice or wantonness is guilty of a felony which is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
Native American artifacts human remains grave site laws cairn felony charges imprisonment cultural heritage protection artifact possession grave desecration legal permission intent to sell malice removal unauthorized removal 1988 prohibition cultural site protection
(Amended by Stats. 2011, Ch. 15, Sec. 557. (AB 109) Effective April 4, 2011. Operative October 1, 2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.)

Section § 5097.991

Explanation
This law states that California's policy is to return Native American remains and any related grave items to their rightful places or representatives.
It is the policy of the state that Native American remains and associated grave artifacts shall be repatriated.
Native American remains repatriation grave artifacts associated artifacts state policy cultural heritage remains repatriation cultural artifacts indigenous repatriation ancestral remains grave goods return of artifacts heritage preservation restoration of remains ancestral artifacts
(Added by Stats. 1991, Ch. 370, Sec. 2.)