CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 275

Author:(Ramos)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

AB 275 revises the process for agencies to complete and review their inventories of collections of California Native American human remains and associated funerary objects for repatriation.

The Senate Amendments:

1. Revise various definitions, including, among others, the definitions of "California Indian tribe" to include both a tribe that meets the federal definition of Indian tribe and a tribe that is not recognized by the federal government, but that is a native tribe located in California that is on the list maintained by the Commission, and the definition of "museum" to specify it receives state funds.
2. Adds new definitions, including;
   1. "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.
   2. "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.
   3. "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.
3. Includes various legislative findings and declaration.
4. Makes various technical, non-substantive changes.

COMMENTS:

Please see the policy committee analysis for a full discussion of the measure.

According to the Author:

"This bill is vital to preserve tribal culture and ensure Native American tribes have the opportunities to pay honor and respect to our ancestors and elders, including those who have come before and to the tribal members that continue to create pathways for future generations.

The Senate amendments reflect definitions as they relate to the interplay of federal NAGPRA and Cal NAGPRA to: 1) be consistent with federal NAGPRA while 2) taking into account the specific historical experience and diversity of California Native American tribes and 3) reducing barriers to repatriation that tribes and practitioners have encountered. This included making the reference to California Native American Tribes consistent with existing SB 18 and AB 52 definitions that acknowledge 'state' listed tribes and making it reasonable to consider tribal traditional knowledge within the Cal NAGPRA process. The technical amendments follow legislative counsel's current convention of: 1) putting items in alphabetical order (this is largely why the old section was "struck") and 2) itemizing out things listed in a sentence."

Arguments in Support:

"In January 2018, the Native American Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant 'lack of tribal and stakeholder knowledge of Commission's laws as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.' In an attempt to improve upon those weaknesses, this bill would require state agencies to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Commission. Additionally, the bill updates current law with respect to the possession of Native American human remains and associated funerary objects for repatriation to require agencies and museums to consider "tribal traditional knowledge" as defined with comparable or greater weight than other nontribal sources of information."

Arguments in Opposition:

In order to participate in tribal consultation, a tribe must request, in writing, to be notified by lead agencies through formal notification of proposed projects in the geographic area with which the tribe is traditionally and culturally affiliated. This is how the NAHC list is created. According to representatives of some smaller tribes of California Native Peoples, they're not included in this process because they do not have the funds or ability to participate in this process which is often miles from their current location and privy to only those with local government contacts. They believe to have this method become the only way to be included in repatriation of their ancestors short of federal recognition shuts the door to them and unfairly rewards richer tribes. According to the Northern Chumash Tribal Council, "Currently the State of California under AB 52 and SB 18 does place all tribal groups including non-Federally recognized tribes on equal footing. AB 275 chips away at the very fabric of the State of California's commitment to the principals of inclusion and social justice. The process for inclusion of all concerned tribal parties is tedious and by definition flawed because nowhere in our history were people ever equipped to have to make decisions about how to re-burry ancestral artifacts including human remains. This is a painful learning curve. To re-burry ancestors is not something to be taken lightly and it's not something to be done by excluding the people from the lands in question and deferring to far removed Federal tribes. The nearest Federal Tribe to our ancestral homeland is hundreds of miles away. If AB 275 were to be implemented we would lose our ability to take care of our relatives in our homeland."

FISCAL COMMENTS:

According to the Senate Appropriations Committee, unknown, potentially significant costs in the hundreds of thousands of dollars for impacted state agencies to comply with the revised process of repatriating remains and associated funerary objects under the specifications of the bill.

VOTES:

ASM ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND INTERNET MEDIA: 7-0-0

YES: Chu, Diep, Chiu, Choi, Friedman, Kamlager-Dove, Nazarian

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ASSEMBLY FLOOR: 78-0-2

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Cooley, Eduardo Garcia

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Dana Mitchell / A.,E.,S.,T., & I.M. / (916) 319-3450 FN: 0003523

 THIRD READING  

Bill No: AB 275

Author: Ramos (D), et al.

Amended: 8/25/20 in Senate

Vote: 21

SENATE GOVERNMENTAL ORG. COMMITTEE: 15-0, 7/9/19

AYES: Dodd, Wilk, Allen, Archuleta, Bradford, Chang, Galgiani, Glazer, Hill, Hueso, Jones, Nielsen, Portantino, Rubio, Wiener

NO VOTE RECORDED: Borgeas

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 78-0, 5/23/19 - See last page for vote

SUBJECT: Native American cultural preservation

SOURCE: Author

DIGEST: This bill revises the process for agencies to complete and review their inventories of collections of California Native American human remains and associated funerary objects for repatriation.

Senate Floor Amendments of 8/25/20 add Senator Hertzberg as a coauthor.

ANALYSIS:

Existing law:

1. Requires, under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA), all agencies and museums that receive state funding and have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate Indian tribes, as specified.
2. Requires that the inventory lists the human remains and associated funerary objects that are not clearly identifiable as to cultural affiliation with California Indian tribes 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.
3. Requires, as to those human remains and associated funerary objects, the agency or museum to consult with the California Indian tribes believed to be affiliated with the items, or that may be affiliated, during the compilation of the inventory.
4. Establishes the Native American Heritage Commission (Commission) and makes the Commission responsible for ensuring California Native American tribe’s accessibility to ancient Native American cultural resources on public lands, overseeing the treatment and disposition of inadvertently discovered Native American human remains and burial items, and administering CalNAGPRA.
5. Authorizes the Commission to bring an action to prevent severe and irreparable damage to, or to 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.
6. Requires the Attorney General to represent the Commission and the state in litigation concerning affairs of the Commission, unless the Attorney General has determined to present the agency against whom the Commission’s action is directed, in which case the Commission is authorized to employ other counsel.
7. Defines, under CalNAGPRA, “California Indian Tribe” to mean a tribe that either meets the federal definition of Indian tribe or that is indigenous to California and is not reorganized by the federal government, is listed on the Bureau of Indian Affairs Branch Acknowledgment and Research petitioner list, and is determined by the commission to be a tribe that is eligible to participate in the repatriation process under CalNAGPRA.
8. Defines, under CalNAGPRA, “museum” as an entity, including a higher educational institution, excluding school district, that receive state funds.

This bill:

1. Revises and recast the process of creating inventories and summaries by, among other things, requiring consultation with California Indian tribes during the creation of the preliminary inventories and summaries and after submission to the commission.
2. Revises and recasts the process by which a direct lineal descendent or a California Indian tribe can request the return of human remains or cultural items.
3. Request that the Regents, on behalf of the University of California (UC), and every other state agency with significant interaction with tribal issues, peoples, or lands to designate, one or more liaisons for the purpose of engaging in consultation with California Native American tribes on the contact list maintained by the Commission.
4. Revises various definitions, including, among others, the definitions of “California Indian tribe” to include both a tribe that meets the federal definition of Indian tribe and a tribe that is not recognized by the federal government, but that is a native tribe located in California that is on the list maintained by the Commission and the definition of “museum” to specify it receives state funds.
5. Includes various legislative findings.
6. Makes various technical, nonsubstantive changes.

Background

Purpose of the bill. According to the author, “when I served as Chairman of the San Manuel Mission Band of Mission Indians and as a Commissioner on the California Native Heritage Commission, I prioritized my efforts and used my platform to spearhead and support cultural preservation initiatives. This bill is vital to preserve tribal culture and ensure Native American tribes have the opportunities to pay honor and respect to our ancestors and elders, including those who have come before and to the tribal members that continue to create pathways for future generations.”

Native American Heritage Commission. The Commission, created in 1976, has a mission to protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods. In January 2018, the California Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, the plan found that there continues to be significant “lack of tribal stakeholder knowledge of Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”

In an attempt to improve upon those weaknesses, this bill would require state agencies to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Commission. Additionally, the bill updates current law with respect to the possession of Native American human remains and associated funerary objects for repatriation to require agencies and museums to consider “tribal traditional knowledge” as defined with comparable or greater weight than other nontribal sources of information.

California Native American Graves Protection and Repatriation Act. The CalNAGPRA, established by AB 978 (Steinberg, Chapter 818, Statutes of 2001), created a 10-member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties for violation. The bill required any agency or museum that has possession or control over collections of California Native American human remains and associated funerary objects to complete inventories and specific timelines and methods for their repatriation. However, CalNAGPRA was never fully implemented and the repatriation commission was not established.

Instead, the Commission has taken over the work of the repatriation commission and now works with museums, community colleges, state universities, private universities, and the UC campuses.

Related/Prior Legislation

AB 1662 (Ramos, Chapter 112, Statutes of 2019) expanded the membership of the UC system-wide NAGPRA Implementation, and Oversight Committee, from two to three voting members from a tribe located in California thereby increasing the committee’s overall membership to eight individuals.

AB 2836 (Gloria, Chapter 823, Statutes of 2018) required the UC Regents to establish and support a system-wide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee.

AB 978 (Steinberg, Chapter 818, Statutes of 2001) enacted Cal NAGPRA to establish a process for repatriating Native American human remains and cultural items that are currently in the possession of any state or local agency or any museum that receives state funds.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, unknown, potentially significant costs in the hundreds of thousands of dollars for impacted state agencies to comply with the revised process of repatriating remains and associated funerary objects under the specifications of the bill.

SUPPORT: (Verified 8/20/20)

Agua Caliente Band of Cahuilla Indians

Alliance for Boys and Men of Color

Big Pine Paiute Tribe

Blue Lake Rancheria

California Nations Indian Gaming Association

California Tribal Business Alliance

Elk Valley Rancheria, California

Federated Indians of Graton Rancheria

Fernandeno Tataviam Band of Mission Indians

Habematolel Pomo of Upper Lake Tribe

Hopland Band of Pomo Indians

Jamul Indian Village of California

KaKoon Ta Ruk Band of Ohlone-Costanoan Indians of the Big Sur Rancheria

Karuk Tribe

La Jolla Band of Luiseno Indians

MALO

Middletown Rancheria of Pomo Indians of California

Northern California Tribal Chairmen's Association

Nototomne Cultural Preservation

Redding Rancheria

Redlands Area Democratic Club

Rincon San Luiseno Band of Indians

Sacred Places Institute

San Fernando Band of Missions Indians

San Luis Rey Band of Mission Indians

San Manuel Band of Mission Indians

San Pasqual Band of Mission Indians

Santa Rosa Band of Cahuilla Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseno Indians

Twenty-Nine Palms Band of Mission Indians

United Auburn Indian Community

Wilton Rancheria

Wiyot Tribe

Yocha Dehe Wintun Nation

OPPOSITION: (Verified 8/20/20)

None received

ARGUMENTS IN SUPPORT: According to supporters of this bill, “in January 2018, the Native American Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant ‘lack of tribal and stakeholder knowledge of Commission’s laws as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.’ As a response to the findings outlined in the plan, AB 275 requests the University of California, and requires state agencies with 30 or more employees, to designate one or more liaisons for the purposes of engaging with Native American tribes on a list that is maintained by the Native American Heritage Commission.”

ASSEMBLY FLOOR: 78-0, 5/23/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Cooley, Eduardo Garcia

Prepared by: Felipe Lopez / G.O. / (916) 651-1530

8/26/20 14:52:08

**** END ****

 THIRD READING  

Bill No: AB 275

Author: Ramos (D), et al.

Amended: 6/24/20 in Senate

Vote: 21

SENATE GOVERNMENTAL ORG. COMMITTEE: 15-0, 7/9/19

AYES: Dodd, Wilk, Allen, Archuleta, Bradford, Chang, Galgiani, Glazer, Hill, Hueso, Jones, Nielsen, Portantino, Rubio, Wiener

NO VOTE RECORDED: Borgeas

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 78-0, 5/23/19 - See last page for vote

SUBJECT: Native American cultural preservation

SOURCE: Author

DIGEST: This bill revises the process for agencies to complete and review their inventories of collections of California Native American human remains and associated funerary objects for repatriation.

ANALYSIS:

Existing law:

1. Requires, under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA), all agencies and museums that receive state funding and have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate Indian tribes, as specified.
2. Requires that the inventory lists the human remains and associated funerary objects that are not clearly identifiable as to cultural affiliation with California Indian tribes 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.
3. Requires, as to those human remains and associated funerary objects, the agency or museum to consult with the California Indian tribes believed to be affiliated with the items, or that may be affiliated, during the compilation of the inventory.
4. Establishes the Native American Heritage Commission (Commission) and makes the Commission responsible for ensuring California Native American tribe’s accessibility to ancient Native American cultural resources on public lands, overseeing the treatment and disposition of inadvertently discovered Native American human remains and burial items, and administering CalNAGPRA.
5. Authorizes the Commission to bring an action to prevent severe and irreparable damage to, or to 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.
6. Requires the Attorney General to represent the Commission and the state in litigation concerning affairs of the Commission, unless the Attorney General has determined to present the agency against whom the Commission’s action is directed, in which case the Commission is authorized to employ other counsel.
7. Defines, under CalNAGPRA, “California Indian Tribe” to mean a tribe that either meets the federal definition of Indian tribe or that is indigenous to California and is not reorganized by the federal government, is listed on the Bureau of Indian Affairs Branch Acknowledgment and Research petitioner list, and is determined by the commission to be a tribe that is eligible to participate in the repatriation process under CalNAGPRA.
8. Defines, under CalNAGPRA, “museum” as an entity, including a higher educational institution, excluding school district, that receive state funds.

This bill:

1. Revises and recast the process of creating inventories and summaries by, among other things, requiring consultation with California Indian tribes during the creation of the preliminary inventories and summaries and after submission to the commission.
2. Revises and recasts the process by which a direct lineal descendent or a California Indian tribe can request the return of human remains or cultural items.
3. Request that the Regents, on behalf of the University of California (UC), and every other state agency with significant interaction with tribal issues, peoples, or lands to designate, one or more liaisons for the purpose of engaging in consultation with California Native American tribes on the contact list maintained by the Commission.
4. Revises various definitions, including, among others, the definitions of “California Indian tribe” to include both a tribe that meets the federal definition of Indian tribe and a tribe that is not recognized by the federal government, but that is a native tribe located in California that is on the list maintained by the Commission and the definition of “museum” to specify it receives state funds.
5. Includes various legislative findings.
6. Makes various technical, nonsubstantive changes.

Background

Purpose of the bill. According to the author, “when I served as Chairman of the San Manuel Mission Band of Mission Indians and as a Commissioner on the California Native Heritage Commission, I prioritized my efforts and used my platform to spearhead and support cultural preservation initiatives. This bill is vital to preserve tribal culture and ensure Native American tribes have the opportunities to pay honor and respect to our ancestors and elders, including those who have come before and to the tribal members that continue to create pathways for future generations.”

Native American Heritage Commission. The Commission, created in 1976, has a mission to protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods. In January 2018, the California Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, the plan found that there continues to be significant “lack of tribal stakeholder knowledge of Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”

In an attempt to improve upon those weaknesses, this bill would require state agencies to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Commission. Additionally, the bill updates current law with respect to the possession of Native American human remains and associated funerary objects for repatriation to require agencies and museums to consider “tribal traditional knowledge” as defined with comparable or greater weight than other nontribal sources of information.

California Native American Graves Protection and Repatriation Act. The CalNAGPRA, established by AB 978 (Steinberg, Chapter 818, Statutes of 2001), created a 10-member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties for violation. The bill required any agency or museum that has possession or control over collections of California Native American human remains and associated funerary objects to complete inventories and specific timelines and methods for their repatriation. However, CalNAGPRA was never fully implemented and the repatriation commission was not established.

Instead, the Commission has taken over the work of the repatriation commission and now works with museums, community colleges, state universities, private universities, and the UC campuses.

Related/Prior Legislation

AB 1662 (Ramos, Chapter 112, Statutes of 2019) expanded the membership of the UC system-wide NAGPRA Implementation, and Oversight Committee, from two to three voting members from a tribe located in California thereby increasing the committee’s overall membership to eight individuals.

AB 2836 (Gloria, Chapter 823, Statutes of 2018) required the UC Regents to establish and support a system-wide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee.

AB 978 (Steinberg, Chapter 818, Statutes of 2001) enacted Cal NAGPRA to establish a process for repatriating Native American human remains and cultural items that are currently in the possession of any state or local agency or any museum that receives state funds.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, unknown, potentially significant costs in the hundreds of thousands of dollars for impacted state agencies to comply with the revised process of repatriating remains and associated funerary objects under the specifications of the bill.

SUPPORT: (Verified 8/20/20)

Agua Caliente Band of Cahuilla Indians

Alliance for Boys and Men of Color

Big Pine Paiute Tribe

Blue Lake Rancheria

California Nations Indian Gaming Association

California Tribal Business Alliance

Elk Valley Rancheria, California

Federated Indians of Graton Rancheria

Fernandeno Tataviam Band of Mission Indians

Habematolel Pomo of Upper Lake Tribe

Hopland Band of Pomo Indians

Jamul Indian Village of California

KaKoon Ta Ruk Band of Ohlone-Costanoan Indians of the Big Sur Rancheria

Karuk Tribe

La Jolla Band of Luiseno Indians

MALO

Middletown Rancheria of Pomo Indians of California

Northern California Tribal Chairmen's Association

Nototomne Cultural Preservation

Redding Rancheria

Redlands Area Democratic Club

Rincon San Luiseno Band of Indians

Sacred Places Institute

San Fernando Band of Missions Indians

San Luis Rey Band of Mission Indians

San Manuel Band of Mission Indians

San Pasqual Band of Mission Indians

Santa Rosa Band of Cahuilla Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseno Indians

Twenty-Nine Palms Band of Mission Indians

United Auburn Indian Community

Wilton Rancheria

Wiyot Tribe

Yocha Dehe Wintun Nation

OPPOSITION: (Verified 8/20/20)

None received

ARGUMENTS IN SUPPORT: According to supporters of this bill, “in January 2018, the Native American Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant ‘lack of tribal and stakeholder knowledge of Commission’s laws as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.’ As a response to the findings outlined in the plan, AB 275 requests the University of California, and requires state agencies with 30 or more employees, to designate one or more liaisons for the purposes of engaging with Native American tribes on a list that is maintained by the Native American Heritage Commission.”

ASSEMBLY FLOOR: 78-0, 5/23/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Cooley, Eduardo Garcia

Prepared by: Felipe Lopez / G.O. / (916) 651-1530

8/21/20 17:52:47

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 275 (Ramos) - Native American cultural preservation

Bill Summary:

AB 275 revises the process for agencies to complete and review their inventories of collections of California Native American human remains and associated funerary objects for repatriation.

Fiscal Impact:

Unknown, potentially significant costs in the hundreds of thousands of dollars for impacted state agencies to comply with the revised process of repatriating remains and associated funerary objects under the specifications of the bill.

Background:

The Native American Heritage Commission (Commission), created in 1976, has a mission to protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods. In January 2018, the California Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, the plan found that there continues to be significant “lack of tribal stakeholder knowledge of Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”

The federal Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, describes the rights of Native American lineal descendants, Indian tribes, and Native Hawaiian organizations and requires institutions that receive federal funding to inventory their collections, consult with federally recognized Native American tribes, and repatriate human remains or cultural items that meet certain criteria.

AB 978 (Steinberg, Chapter 818, Statutes of 2001), established the California NAGPRA, and requires all agencies and museums that receive state funding and have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate Indian tribes, as specified. AB 978 also established a 10 member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties for violation. However, the California NAGPRA was never fully implemented and the repatriation commission was not established. Instead, the Commission has taken over the work of the repatriation commission and now works with museums, community colleges, state universities, private universities, and the UC campuses.

Proposed Law:

This bill:

• Requires the Commission, by January 1, 2021, to develop a list of all California Indian tribes and their respective state aboriginal territories and requires to notify, in writing, all agencies, museums, and tribes, that the Commission maintains that list.
• Requires each agency that has possession or control of California Native American human remains and associated funerary objects to complete an inventory or update a preliminary inventory by January 1, 2022 and:
  • Additionally identify the aboriginal territory;
  • Consult with affiliated tribes on any protocols to be used in the inventory process to minimize handling with tribal expertise receiving deference.
• Requires tribal knowledge to be used to establish state cultural affiliation and identify associated funerary objects.
• Establishes additional requirements for how objects and remains are to be labeled and catalogued and how agencies and museums are to consult and engage with California Indian tribes as part of the completion of the inventories and summaries.
• Requires an agency or museum to supply additional documentation to supplement information upon the request of a lineal descendent or California Indian tribe.
• Establishes a process for lineal descendants to request the return of and claim Native American human remains or cultural items.
• Establishes additional clarity around the process if there is a dispute between requesting parties.
• Defines “California Indian tribe” to mean a tribe located in California that meets the definition of Indian tribe under the federal native American Graves Protection and Repatriation Act or a Native American tribe located in California that is on the contact list maintained by the Native American Heritage Commission but is not recognized by the federal government.
• Defines “tribal traditional knowledge” to mean knowledge systems embedded and safeguarded in the traditional culture of California Indian tribes, as specified.
• Repeals definitions and establishes new definitions.
• States findings and declarations.

Related Legislation:

AB 2836 (Gloria, Chapter 823, Statutes of 2018) required the Regents of the University of California to establish and support a system-wide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee.

AB 978 (Steinberg, Chapter 818, Statutes of 2001) enacted the California NAGPRA to establish a process for repatriating Native American human remains and cultural items that are currently in the possession of any state or local agency or any museum that receives state funds.

Staff Comments:

There are a number of state agencies and museums that may be affected by the provisions of this bill, with potentially variable fiscal impacts.

The Department of Parks and Recreation (Parks) anticipates the need for additional resources, in the hundreds of thousands of dollars. Parks estimates it will need five additional staff—a senior and assistant archeologist, an Associate Governmental Program Analyst, a data specialist, and a Geographic Information Systems analyst. Workload for these staff include evaluating objects currently in its inventory, locating traditional locations, locating safe, private, and confidential places to reinter remains, and consult with tribes on appropriate handling of artifacts and remains.

Additionally, Parks may have additional fiscal impacts if it assists other state agencies or museums in their repatriation activities by helping these other entities to locate traditional locations, reinter remains, or store and maintain artifacts.

The University of California may also need to perform additional administrative activities to comply with the repatriation provisions of the bill. The impact of these administrative activities is unknown at this time.

The Commission may also be impacted by the bill, however costs associated with any increased workload to produce and publish the list required in the bill or promulgate any regulations may be absorbable within existing resources.

-- END --

SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION

Senator Bill Dodd

Chair

2019 - 2020 Regular

Bill No: 275 Hearing Date: 7/9/2019

SUBJECT: Native American cultural preservation

DIGEST: This bill requires every state agency with significant interaction with tribal issues, peoples or lands, to designate one or more liaisons for the purpose of engaging in consultation with Native American tribes on the tribal contact list maintained by the Native American Heritage Commission (Commission) and educating the agency on topics relevant to the state’s relationship with those tribes.

ANALYSIS:

Existing law:

1. Requires, under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA), all agencies and museums that receive state funding and have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate Indian tribes, as specified.
2. Requires that the inventory lists the human remains and associated funerary objects that are not clearly identifiable as to cultural affiliation with California Indian tribes 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.
3. Requires, as to those human remains and associated funerary objects, the agency or museum to consult with the California Indian tribes believed to be affiliated with the items, or that may be affiliated, during the compilation of the inventory.
4. Establishes the Native American Heritage Commission (Commission) and makes the Commission responsible for ensuring California Native American tribe’s accessibility to ancient Native American cultural resources on public lands, overseeing the treatment and disposition of inadvertently discovered Native American human remains and burial items, and administering NAGPRA.
5. Authorizes the Commission to bring an action to prevent severe and irreparable damage to, or to 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.
6. Requires the Attorney General to represent the Commission and the state in litigation concerning affairs of the Commission, unless the Attorney General has determined to present the agency against whom the Commission’s action is directed, in which case the Commission is authorized to employ other counsel.

This bill:

1. Requires every state agency with significant interaction with tribal issues, peoples or lands, and request the Regents of the University of California (UC), to designate one or more liaisons for the purpose of engaging in consultation with Native American tribes on the tribal contact list maintained by the Commission and educating the agency on topics relevant to the states relationship with those tribes.
2. Defines “state agency,” to mean a department or agency of the state, the California University System, the UC, and the Judicial Council of California.
3. Requires a state agency or museum, in consulting with tribes that may be affiliated with the human remains and associated funerary objects, to consider tribal traditional knowledge as having comparable or greater weight than other nontribal sources of information.
4. Requires a state agency or museum, in determining whether an item is associated funerary object, to consider tribal traditional knowledge as having comparable or greater weight than other nontribal sources of information.
5. Defines “tribal traditional knowledge” to mean knowledge systems embedded and often safeguarded in the traditional culture of California Native American tribes, including, but not limited to, knowledge about traditional ceremonial practices, lifeways, climate, and subsistence.

Background

Purpose of the bill. According to the author, “when I served as Chairman of the San Manuel Mission Band of Mission Indians and as a Commissioner on the California Native Heritage Commission, I prioritized my efforts and used my platform to spearhead and support cultural preservation initiatives. This bill is vital to preserve tribal culture and ensure Native American tribes have the opportunities to pay honor and respect to our ancestors and elders, including those who have come before and to the tribal members that continue to create pathways for future generations.”

Native American Heritage Commission. The Commission, created in 1976, has a mission to protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods. In January 2018, the California Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, the plan found that there continues to be significant “lack of tribal stakeholder knowledge of Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”

In an attempt to improve upon those weaknesses, this bill would require state agencies to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Commission. Additionally, the bill updates current law with respect to the possession of Native American human remains and associated funerary objects for repatriation to require agencies and museums to consider “tribal traditional knowledge” as defined with comparable or greater weight than other nontribal sources of information.

California Native American Graves Protection and Repatriation Act. The CalNAGPRA, established by AB 978 (Steinberg, Chapter 818, Statutes of 2001), created a 10 member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties for violation. The bill requires any agency or museum that has possession or control over collections of California Native American human remains and associated funerary objects to complete inventories and specific timelines and methods for their repatriation. However, CalNAGPRA was never fully implemented and the repatriation commission was not established.

Instead, the Commission has taken over the work of the repatriation commission and now works with museums, community colleges, state universities, private universities, and the UC campuses.

Prior/Related Legislation

AB 1662 (Ramos, 2019) would expand the membership of the UC system wide Native American Graves Protection and Repatriation Act Implementation, and Oversight Committee, from two to three voting members from a tribe located in California thereby increasing the committee’s overall membership to eight individuals. (Pending on the Governor Desk)

AB 2836 (Gloria, Chapter 823, Statutes of 2018) required the Regents of the University of California to establish and support a system-wide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee.

AB 978 (Steinberg, Chapter 818, Statutes of 2001) enacted the California NAGPRA to establish a process for repatriating Native American human remains and cultural items that are currently in the possession of any state or local agency or any museum that receives state funds.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT:

Agua Caliente Band Of Cahuilla Indians
Blue Lake Rancheria
California Tribal Business Alliance
California Nations Indian Gaming Association
Elk Valley Rancheria, California
Federated Indians Of Graton Rancheria
Fernandeno Tataviam Band Of Mission Indians
Habematolel Pomo Of Upper Lake
Jamul Indian Village Of California
Karuk Tribe
La Jolla Band Of Luiseno Indians
Middletown Rancheria Of Pomo Indians of California
Northern California Tribal Chairmen's Association
Redding Rancheria
Rincon San Luiseno Band Of Indians
San Manuel Band Of Mission Indians
San Pasqual Band Of Mission Indians
Santa Rosa Band Of Cahuilla Indians
Soboba Band Of Luiseno Indians
Twenty-Nine Palms Band Of Mission Indians
Wilton Rancheria
Wiyot Tribe
Yocha Dehe Wintun Nation

OPPOSITION:

None received

ARGUMENTS IN SUPPORT: According to supporters of the bill, “in January 2018, the Native American Heritage Commission published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant ‘lack of tribal and stakeholder knowledge of Commission’s laws as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.’ As a response to the findings outlined in the plan, AB 275 requests the University of California, and requires state agencies with 30 or more employees, to designate one or more liaisons for the purposes of engaging with Native American tribes on a list that is maintained by the Native American Heritage Commission.”

ASSEMBLY THIRD READING

ATR Bill Id:AB 275

Author:(Ramos)

As Amended Ver:May 17, 2019

Majority vote

SUMMARY:

This bill would make various changes to laws relating to California Native American tribes, including: requiring specified state agencies, as defined, to establish a tribal liaison for specified purposes; defining tribal traditional knowledge and assigning relative weight of its application under the California Native American Graves Protection and Repatriation Act (Cal NAGPRA), as specified, and; clarify circumstances when the Attorney General's Office may be conflicted out of representing the Native American Heritage Commission.

Major Provisions

1. Requires every state agency as defined, with significant interaction with tribal issues, peoples, or lands, and requests the Regents of the University of California, to designate one or more liaisons for the purpose of engaging in consultation with California Native American tribes on the tribal contact list and educating the agency on topics relevant to the state's relationship with those tribes.
2. Provides that when consulting with tribes pursuant to Cal NAGPRA, the agency or museum shall consider tribal traditional knowledge, as defined, as having comparable or greater weight than other nontribal sources of information.
3. In determining whether an item is an "associated funerary object," under Cal NAGPRA, the bill would require that the agency or museum consider tribal traditional knowledge as having comparable or greater weight than other nontribal sources of information.
4. Requires the Attorney General to represent the commission and the state in litigation concerning affairs of the commission, unless:
   1. The Attorney General has determined to represent the agency against whom the commission's action is directed and has determined there exists a conflict that would impair its ability to zealously advocate on behalf of the commission, or;
   2. The commission reasonably believes that the Attorney General cannot, in good faith, represent the interests of the commission, in which case the commission shall be authorized to employ other counsel.

COMMENTS:

Please see the policy committee analysis for a full discussion of the measure.

According to the Author:

California is home to nearly one-fifth of all federally recognized tribes. According to the 2010 census, 723,000 Native Americans reside in California, more than any other state. The Native American Heritage Commission (NAHC), created in 1976, has a mission to 'protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods, all to the fullest extent of the law.' In January 2018, the California Heritage Commission published its Five-Year Strategic Plan which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant "lack of tribal and stakeholder knowledge of Commission's laws" as well as confusion with respect to the protection of Native American remains and associated funerary artifacts."

Arguments in Support:

Supporters note that the concepts for the bill come from issues raised in the NAHC 5 Year Plan, writing to say, "In response to the findings outlined in the NAHC Five-Year Strategic Plan, AB 275 establishes the following:

Requests the University of California, and requires specified state agencies to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Native American Heritage Commission.

Updates current law with respect to the possession of California Native American human remains and associated funerary objects for repatriation to require for agencies and museums to consider 'tribal traditional knowledge' as defined with comparable or greater weight than other nontribal sources of information.

Arguments in Opposition:

There is no known opposition to this measure.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, the fiscal impact is unknown, but significant aggregate state costs depending on the number of departments and agencies that will be required to establish tribal liaisons and how the scope of their work is defined (GF/federal/special funds).

VOTES:

ASM ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND INTERNET MEDIA: 7-0-0

YES: Chu, Diep, Chiu, Choi, Friedman, Kamlager-Dove, Nazarian

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: May 17, 2019

CONSULTANT: Dana Mitchell / A.,E.,S.,T., & I.M. / (916) 319-3450 FN: 0000834

Date of Hearing: May 8, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 275

Author:(Ramos) – As Amended Ver:April 29, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes various changes to laws relating to California Native American tribes, including requiring all state agencies, as defined, to establish a tribal liaison for specified purposes; defining tribal traditional knowledge and assigning relative weight of its application under the California Native American Graves Protection and Repatriation Act of 2001, as specified; and clarify circumstances when the Attorney General’s Office may be conflicted out of representing the Native American Heritage Commission.

FISCAL EFFECT:

Unknown, but significant aggregate state costs, likely in the millions of dollars across state government for every department and agency to establish tribal liaisons (GF/federal/special funds).

COMMENTS:

1. Purpose. According to the author, in January 2018, the California Native American Heritage Commission (Commission) published its Five-Year Strategic Plan, which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant “lack of tribal and stakeholder knowledge of the Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”
2. Background. The Commission is a nine-member body whose members are appointed by the governor. The Commission has the legal authority to identify, catalog and protect Native American cultural resources—ancient places of special religious or social significance to Native Americans and known ancient graves and cemeteries of Native Americans on private and public lands in California. The Commission is also charged with ensuring California Native American tribes’ accessibility to ancient Native American cultural resources on public lands, overseeing the treatment and disposition of inadvertently discovered Native American human remains and burial items, and administering the California Native American Graves Protection and Repatriation Act (CalNAGPRA), among many other powers and duties.
3. Related Legislation. AB 1662 (Ramos), pending on the Assembly Floor, would add an additional member from a California Tribe to the system-wide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee, known as the U.C. NAGPRA Committee.

AB 1010 (E. Garcia), pending in this committee, would make the governing body of Indian reservations and Rancherias eligible to receive funding from various affordable housing programs and requires the Legislature to appropriate an annual amount to the department sufficient to support at least one full-time employee to provide the technical assistance to tribes.

1. Prior Legislation. AB 2836 (Gloria), Chapter 823, statutes of 2018, requires the Regents of the University of California (UC) to establish and support a system-wide Native American Graves Protection and Repatriation Act (NAGPRA) Implementation and Oversight Committee and, for any campus subject to the federal NAGPRA, to establish a campus implementation committee.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 23, 2019

ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND INTERNET MEDIA

Kansen Chu, Chair

ABPCA Bill Id:AB 275 (

Author:Ramos) – As Amended Ver:April 22, 2019

SUBJECT: Native American cultural preservation.

SUMMARY: This bill would make various changes to laws relating to California Native American tribes, including: requiring all state agencies, as defined, to establish a tribal liaison for specified purposes; defining tribal traditional knowledge and assigning relative weight of its application under Cal NAGPRA, as specified; clarify circumstances when the Attorney General’s Office may be conflicted out of representing the Native American Heritage Commission, and; altering the CEQA consultation process between lead agencies and California Native American Tribes, to require the lead agency to commence consultation with the tribes, as provided.

Specifically, this bill:

1. Requires every state agency, as defined, and requests the Regents of the University of California, to designate one or more liaisons for the purpose of engaging in consultation with California Native American tribes on the tribal contact list and educating the agency on topics relevant to the state’s relationship with those tribes.

Further requests the Regents of the University of California, and requires every other state agency with 30 or more employees or one or more contracts or grants for the procurement of any property or services with or from a California Native American tribe on the tribal contact list, to designate one or more liaisons with the sole responsibility of fulfilling this purpose.

1. Defines “Tribal traditional knowledge” under the California Native American Graves Protection and Repatriation Act of 2001 (Cal NAGPRA) to mean “knowledge systems embedded and often safeguarded in the traditional culture of California Native American tribes, including, but not limited to, knowledge about traditional ceremonial practices, lifeways, climate, and subsistence.”
2. Provides that when consulting with tribes pursuant to Cal NAGPRA, the agency or museum shall consider tribal traditional knowledge, as defined, with comparable or greater weight than other nontribal sources of information.
3. In determining whether an item is an “associated funerary object,” under Cal NAGPRA, the bill would require that the agency or museum consider tribal traditional knowledge with comparable or greater weight than other nontribal sources of information.
4. Requires the Attorney General to represent the commission and the state in litigation concerning affairs of the commission, unless:
   1. the Attorney General has determined to represent the agency against whom the commission’s action is directed and has determined there exists a conflict that would impair its ability to zealously advocate on behalf of the commission, or;
   2. the commission reasonably believes that the Attorney General cannot, in good faith, represent the interests of the commission, in which case the commission shall be authorized to employ other counsel.
5. Authorizes the Native American Heritage Commission (Commission) to provide each lead agency, as defined, with a project within the geographic area with which a California Native American tribe is traditionally and culturally affiliated, the contact information of those tribes, and information on how the lead agency may initiate consultation with the tribe pursuant to CEQA.
6. Revises the CEQA tribal consultation provisions, to allow a lead agency to begin consultation with a California Native American tribe as specified, rather than the tribe contacting the lead agency, as provided.

EXISTING LAW:

1. Provides that all agencies and museums that receive state funding and have possession or control over collections of California Native American human remains and associated funerary objects to inventory those remains and objects for repatriation to the appropriate Indian tribes, as specified.

As to those human remains and associated funerary objects that are not clearly identifiable as to cultural affiliation with California Indian tribes, Cal NAGPRA requires the agency or museum to consult with the California Indian tribes believed to be affiliated with the items, or that may be affiliated, during the compilation of the inventory, as provided.

1. Establishes the Native American Heritage Commission and vests the Commission with specified powers and duties.
2. Mandates the Commission to publish a document that lists the California Indian tribes meeting the criteria for a California Indian tribe, as defined, as well as authorized representatives to act on behalf of the tribe for various consultations and in matters pertaining to repatriation (tribal contact list).
3. Requires 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 is authorized to employ other counsel.
4. The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect.
5. Prior to the release of a negative declaration, mitigated negative declaration, or an EIR for a project, CEQA requires the lead agency to begin consultation with a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project, if the tribe requested in writing to be informed by the lead agency through formal notification, as specified.
6. Authorizes the Commission to provide each California Native American tribe with a list of all public agencies that may be a lead agency within the geographical 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 CEQA.

FISCAL EFFECT: Unknown. This measure has been keyed fiscal by the Legislative Council.

COMMENTS:

Author and supporters statement of need for legislation. According to the Author, California is home to nearly one-fifth of all federally recognized tribes. According to the 2010 census, 723,000 Native Americans reside in California, more than any other state.

The Native American Heritage Commission (NAHC), created in 1976, has a mission to ‘protect Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines on public property, and to ensure the respectful treatment and disposition of ancient Native American human remains and associated grave goods, all to the fullest extent of the law.’ In January 2018, the California Heritage Commission published its Five-Year Strategic Plan which identified several strengths and weaknesses of the Commission. Among the weaknesses, it was found that there continues to be a significant “lack of tribal and stakeholder knowledge of Commission’s laws” as well as confusion with respect to the protection of Native American remains and associated funerary artifacts.”

In response to the findings outlined in the NAHC Five-Year Strategic Plan, AB 275 establishes the following:

Requests the University of California, and requires state agencies with 30 or more employees, to designate one or more liaisons for the purpose to engage with Native American tribes on a list that is maintained by the Native American Heritage Commission.

Updates current law with respect to the possession of California Native American human remains and associated funerary objects for repatriation to require for agencies and museums to consider ‘tribal traditional knowledge’ as defined with comparable or greater weight than other nontribal sources of information.

The author concludes by saying, “This bill is vital to preserve tribal culture and ensure Native American tribes have the opportunities to pay honor and respect to our ancestors and elders, including those who have come before and to the tribal members that continue to create pathways for future generations.”

1. Author’s amendments to be taken in committee. The author will be amending this measure to address an issue created by recent amendments which struck the CEQA language from the bill yet left related language under the duties of the NAHC in PRC Section 5097.94.(m), and a redundancy in application of the section Gov Code sections 8318 (b) and (c).

Specifically, the amendments will strike proposed Government Code 8318 subsection (c) on page 4, lines 15-22, and; proposed changes to Public Resources Code Section 5097.94 sub (m) on page 12, lines 22-30.

1. Background:
   1. The Native American Heritage Commission. According to their website, the California Native American Heritage Commission (NAHC or Commission), was created in statute in 1976 (Chapter 1332, Statutes of 1976), and is a nine-member body whose members are appointed by the Governor. The NAHC identifies, catalogs, and protects Native American cultural resources -- ancient places of special religious or social significance to Native Americans and known ancient graves and cemeteries of Native Americans on private and public lands in California. The NAHC is also charged with ensuring California Native American tribes’ accessibility to ancient Native American cultural resources on public lands, overseeing the treatment and disposition of inadvertently discovered Native American human remains and burial items, and administering the California Native American Graves Protection and Repatriation Act (CalNAGPRA), among many other powers and duties.

Under state law, as state trustee, it is the role and responsibility of the Commission to protect tribal cultural resources through fostering cooperative working relationships between California Native American tribes, state and local agencies, private landowners, developers, environmental consultants, and museums.

• 1. Cal NAGPRA - State repatriation law. Existing state law, created by AB 978 (Steinburg), requires creation of a ten-member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties for violations. The bill required any agency or museum that has possession or control over collections of California Native American human remains and associated funerary object to complete inventories and specified timelines and methods for their repatriation. However, this Act was never fully implemented and the commission was not established. Instead, according to their website, the California Native American Heritage Commission has taken over the work of the Native American Repatriation Commission established by AB 978, and now works with museums, community colleges, state universities, private universities, and the University of California campuses on issues including issues related to the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) and CalNAGPRA (SB 978).
  2. The University of California Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items. UC states in its policy summary the balance of interests that the University strives to achieve with regard to repatriation and maintenance of human remains and cultural items:

"It is the policy of the University of California to assure that the respectful and dignified treatment of human remains and the consideration of living descendants of those deceased. The University recognizes that individuals and communities have cultural and religious concerns that must be considered in determining the treatment and disposition of human remains in its collections. At the same time, the University’s collections of human remains and Cultural Items serve valuable educational and research purposes important to the enhancement of knowledge in various disciplines. The University maintains these collections as a public trust and is responsible for preserving them according to the highest standards while fulfilling its mission to provide education and understanding about the past and present through continued teaching, research and public service."

Toward these competing goals, the University created a Policy and Procedures (Policy) and a University Advisory Group on Cultural Affiliation and Repatriation of Human Remains and Cultural Items (Advisory Group), for handling their requirements relative to Native American human remains and cultural items under state and federal law, which "shall be composed of one University faculty member delegated principal responsibility for compliance with this policy from each of those campuses that house collections covered by NAGPRA, and two Native American members to be selected by the President or designee from among nominees submitted by each campus. The Vice Provost for Research (or designee) will be the UC Office of the President liaison to the Advisory Group."

According to the Policy, campuses are encouraged to solicit input on significant policy matters, as appropriate, from members of Native American and Native Hawaiian groups and from additional University faculty members drawn from a variety of disciplines in which the study, treatment, curation, and repatriation of human remains is relevant. Campuses are encouraged to forward input received from such consultations to the Office of the President via their Advisory Group representative.

The Policy contains procedures for implementation, including a required review of Inventories of Native American and Native Hawaiian human remains and associated objects as follows: "In accordance with NAGPRA, each campus with Native American or Native Hawaiian human remains and associated funerary objects shall complete inventories of all such remains and associated funerary objects in its collections by reviewing existing documentation. Campus inventories shall draw on the best available academic expertise and involve consultation with tribal authorities representing Native American and Native Hawaiian groups. The inventories shall include descriptions of human remains and associated funerary objects and shall, to the extent possible, identify the geographical and cultural affiliation of those human remains and associated Cultural Items, as required by NAGPRA. …

"Upon request by lineal descendants or appropriate tribal authorities, the campus shall provide additional available documentation to supplement the information provided in the campus inventories. Existing information is sufficient to fulfill this requirement; no additional scientific studies need be undertaken to provide such information."

The Policy also requires each campus to complete "a written summary of Native American and Native Hawaiian unassociated funerary objects, sacred objects, and objects of cultural patrimony held in its collections, and declares that these summaries provide a basis for further consultations with Native American and Native Hawaiian tribal authorities to determine cultural affiliation. Final campus summaries shall be submitted to federal agencies, lineal descendants, Native American tribes and Native Hawaiian organizations, as required by law."

In addition, the Policy states that, "Upon request by lineal descendants or appropriate tribal authorities, the campus shall provide access to records, catalogues, relevant studies, or other pertinent data for the purpose of determining the geographic origin, cultural affiliation and basic facts surrounding the acquisition and accession of objects covered in the summary."

The Policy claims, "to the extent possible, campus inventories and summaries shall identify the Cultural Affiliation of human remains, funerary objects, sacred objects, and objects of cultural patrimony, as defined by federal law." And states that "Under NAGPRA, all of the following requirements must be met to determine cultural affiliation between a present-day Indian tribe or Native Hawaiian organization and human remains, funerary objects, sacred objects, or objects of cultural patrimony of an earlier group:

• • 1. Existence of an identifiable present-day Indian tribe or Native Hawaiian organization with standing under NAGPRA;
    2. Existence of an identifiable earlier group; and
    3. Existence of a shared group identity that can be reasonably traced between the present-day Indian tribe or Native Hawaiian organization and the earlier group. Evidence to support this requirement must establish that a present-day Indian tribe or Native Hawaiian organization has been identified from prehistoric or historic times to the present as descending from the earlier group."

The Policy allows Tribal authorities "reasonable access to examine items in the University’s collections in order to evaluate the cultural affiliation of items listed in the inventory as culturally unidentifiable. They shall also be given reasonable opportunity, upon request, to present their views orally or in writing to campus officials responsible for NAGPRA implementation regarding the identification of any such human remains, funerary objects, sacred objects, or objects or cultural patrimony. The perspectives of such tribal authorities shall be considered in determining cultural affiliation."

The Policy states that review of repatriation requests shall reflect consideration of academic expertise and Native American or Native Hawaiian viewpoints, and shall provide consultation with requesting individuals or tribes, as required by NAGPRA, and provides upon the written request of a lineal descendant, Indian tribe or Native Hawaiian organization, or California-recognized Indian tribe, the University will expeditiously repatriate human remains, funerary objects, sacred objects, and objects of cultural patrimony if lineal descent has been established or if cultural affiliation between the requesting tribe or organization and the requested remains or Cultural Items has been established in accordance with federal law and if all other requirements for repatriation of such human remains or Cultural Items as set forth in federal law are met, and provides for repatriation to a non-federally-recognized California-recognized tribe under specified circumstances and for resolution of repatriation disputes.

The Policy makes allowance for the teaching and research use of human remains and cultural items. It expressly provides that, "Campuses are granted the authority to make decisions about the use of Native American or Native Hawaiian human remains, associated and unassociated funerary objects, sacred objects, sacred objects, and objects of cultural patrimony in University collections for teaching and research purposes, subject to the following guidelines:

Given the importance of the study of human osteology in archaeology, paleontology, and comparative morphology, and the importance of skeletal material in training students at the lower division, upper division and graduate level, campuses normally retain the discretion to use such items in teaching. Campuses are encouraged to take into consideration the views and concerns of Native American and Native Hawaiian representatives when making decisions regarding the teaching and research use of Native American and Native Hawaiian skeletal materials.

Remains and Cultural Items covered by this policy shall normally remain accessible for research by qualified investigators, subject to approval by the curator of the relevant campus collection.

Once a repatriation request has been granted and actual repatriation is pending, the remains and Cultural Items covered by the request shall not be used in teaching or research unless expressly permitted by the tribal authority that has been granted jurisdiction over the materials, subject to exceptions provided by federal law.

In circumstances in which cultural affiliation (or cultural association) has been established and other repatriation requirements have been met but in which an affiliated (or associated) tribe has chosen not to request repatriation, an affiliated (or associated) tribe may request that the affiliated (or associated) remains or Cultural Items not be used for teaching or research. The decision of the affiliated (or associated) tribe as to whether the remains and cultural items can be used in teaching or research shall normally be accepted as final by the University, subject to exceptions provided by federal law."

Given this extensive repatriation policy and the anticipated implementation of the AB 2836 (Gloria) UC NAGPRA Committee process, this Committee wonders whether the UC should be required to designate one or more different liaisons for the purpose of educating the University on topics relevant to the state’s relationship with California Native American tribes? The author may consider amending this measure to remove reference to the UC or deem them compliant with the provisions of proposed Government Code Section 8318.

1. University of California's unique constitutional status. The California Constitution establishes the University of California (UC), a public trust to be administered by the Regents of the UC and grants the Regents full powers of organization and government, subject only to such legislative control as may be necessary to insure security of its funds, compliance with the terms of its endowments, statutory requirements around competitive bidding and contracts, sales of property and the purchase of materials, goods and services. (Article IX, Section (9)(a) of the California Constitution)
2. Prior and related legislation.
   1. AB 1662 (Ramos) of this session, would add an additional member from a California Tribe to the systemwide Native American Graves Protection and Repatriation Act Implementation and Oversight Committee, known as the U.C. NAGPRA Committee, with specified membership. Status: That measure passed out of this committee on consent and is currently pending before the Assembly Committee on Higher Education and is set for hearing April 23, 2019.
   2. AB 2836 (Gloria), Chapter 823, statutes of 2018, requires the Regents of the University of California (UC) to establish and support a system-wide Native American Graves Protection and Repatriation Act (NAGPRA) Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee.
   3. AB 52 (Gatto), Chapter 532, Statutes of 2014, was the result of a collaborative process between government entities, developers and construction trades and California Native American tribes which established procedures and requirements under the California Environmental Quality Act (CEQA) for the purpose of avoiding or minimizing impacts to tribal cultural resources.
   4. AB 978 (Steinberg), Chapter 818, Statutes of 2001, enacted the California Native American Graves Protection and Repatriation Act of 2001 to establish a process for repatriating Native American human remains and cultural items that are currently in the possession of any state or local agency or any museum that receives state funds. The bill established a ten-member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to subpoena, and to impose civil penalties. The bill required any agency or museum that has possession or control over collections of California Native American human remains and associated funerary object to complete, by January 1, 2003, an inventory of all items and include specified information in the inventory that will facilitate return of the objects.

REGISTERED SUPPORT / OPPOSITION:

Support

Blue Lake Rancheria
California Nations Indian Gaming Association
California Tribal Business Alliance
Rincon San Luiseno Band of Indians
San Manuel Band of Mission Indians
Soboba Band of Luiseno Indians
Wilton Rancheria

Opposition

There is no opposition on file.

Analysis Prepared by: Dana Mitchell / A.,E.,S.,T., & I.M. / (916) 319-3450