Existing law establishes the California State University, under the administration of the Trustees of the California State University, as one of the segments of public postsecondary education in this state. The California State University comprises 23 institutions of higher education located throughout the state.

The California Native American Graves Protection and Repatriation Act of 2001 requires all agencies and museums, which is defined to include higher education institutions, 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 California Indian tribes, as specified.

This bill would require the California State University to comply with various requirements regarding the handling, maintenance, and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001, including adopting and implementing systemwide policies that, among other things, prohibit the use of any Native American human remains or cultural items for purposes of teaching or research at the California State University while in the possession of a California State University campus or museum. The bill would make its provisions severable.

Existing law establishes the California State University, under the administration of the Trustees of the California State University, as one of the segments of public postsecondary education in this state. The California State University comprises 23 institutions of higher education located throughout the state.

The California Native American Graves Protection and Repatriation Act of 2001 requires all agencies and museums, which is defined to include higher education institutions, 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 California Indian tribes, as specified.

This bill would require the California State University to comply with various requirements regarding the handling, maintenance, and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001, including adopting and implementing systemwide policies that, among other things, prohibit the use of any Native American human remains or cultural items for purposes of teaching or research at the California State University while in the possession of a California State University campus or museum. The bill would make its provisions severable.

Existing law establishes the California State University, under the administration of the Trustees of the California State University, as one of the segments of public postsecondary education in this state. The California State University comprises 23 institutions of higher education located throughout the state.

The California Native American Graves Protection and Repatriation Act of 2001 requires all agencies and museums, which is defined to include higher education institutions, 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 California Indian tribes, as specified.

This bill would prohibit require the California State University to comply with various requirements regarding the handling, maintenance, and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001, including adopting and implementing systemwide policies that, among other things, prohibit the use of any Native American human remains or cultural items for purposes of teaching or research at the California State University. The bill would require the office of the Chancellor of the California State University to comply with various requirements related to repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001, as specified. University while in the possession of a California State University campus or museum. The bill would make its provisions severable.

(1)Existing law establishes the Native American Heritage Commission and empowers the commission to do certain things, including 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. Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person, with specified exceptions, including an exception for records of Native American graves, cemeteries, and sacred places, among other things.

This bill would provide, as an exception to the California Public Records Act, genealogical records of tribal members and cultural affiliation records received during a consultation by the commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other records relating to the commission.

(2)Existing law requires a county coroner to notify the commission by telephone within 24 hours if the coroner determines that discovered human remains are not subject to their authority and recognizes, or has reason to believe, the remains are those of a Native American, as specified. Existing law requires the commission, whenever it receives notification of a discovery of Native American human remains from a county coroner, to immediately notify those persons it believes to be most likely descended from the deceased Native American.

This bill would authorize the commission to make recommendations to a county coroner on human remains notification and repatriation procedures.

(3)Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(1)Existing law establishes the Native American Heritage Commission and empowers the commission to do certain things, including 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. Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person, with specified exceptions, including an exception for records of Native American graves, cemeteries, and sacred places, among other things. The Bagley-Keene Open Meeting Act requires, with specified exceptions for authorized closed sessions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body.

This bill would provide, as an exception to the California Public Records Act, genealogical records of tribal members and cultural affiliation records received during a consultation by the commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other records relating to the commission. The bill would provide, as an exception to the Bagley-Keene Open Meeting Act, that nothing in the act shall be construed to prevent the commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other matters.

(2)Existing law requires a county coroner to notify the commission by telephone within 24 hours if the coroner determines that discovered human remains are not subject to their authority and recognizes, or has reason to believe, the remains are those of a Native American, as specified. Existing law requires the commission, whenever it receives notification of a discovery of Native American human remains from a county coroner, to immediately notify those persons it believes to be most likely descended from the deceased Native American.

This bill would require authorize the commission to make recommendations to a county coroner on human remains notification and repatriation procedures.

(3)Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(1)Existing law establishes the Native American Heritage Commission and empowers the commission to do certain things, including 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. Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person, with specified exceptions, including an exception for records of Native American graves, cemeteries, and sacred places, among other things. The Bagley-Keene Open Meeting Act requires, with specified exceptions for authorized closed sessions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body.

This bill would provide, as an exception to the California Public Records Act, genealogical records of tribal members and cultural affiliation records received during a consultation by the commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other records relating to the commission. The bill would provide, as an exception to the Bagley-Keene Open Meeting Act, that nothing in the act shall be construed to prevent the commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other matters.

(2)Existing law requires a county coroner to notify the commission by telephone within 24 hours if the coroner determines that discovered human remains are not subject to their authority and recognizes, or has reason to believe, the remains are those of a Native American, as specified. Existing law requires the commission, whenever it receives notification of a discovery of Native American human remains from a county coroner, to immediately notify those persons it believes to be most likely descended from the deceased Native American.

This bill would require the commission to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

(3)Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(1)Existing law establishes the Native American Heritage Commission and empowers the commission to do certain things, including 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. Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person, with specified exceptions, including an exception for records of Native American graves, cemeteries, and sacred places, among other things. The Bagley-Keene Open Meeting Act requires, with specified exceptions for authorized closed sessions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body.

Existing law establishes the Native American Heritage Commission and empowers the commission to do certain things, including 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. Existing law, the California Public Records Act, requires that public records, as defined, be available to the public for inspection and made promptly available to any person, with specified exceptions, including an exception for records of Native American graves, cemeteries, and sacred places, among other things. The Bagley-Keene Open Meeting Act requires, with specified exceptions for authorized closed sessions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body.

This bill would state the intent of the Legislature to enact subsequent legislation to provide, as an exception to the California Public Records Act, genealogical records of tribal members and cultural affiliation records received during a consultation by the commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other records relating to the commission. The bill would further state the intent of the Legislature to enact subsequent legislation to provide, as an exception to the Bagley-Keene Open Meeting Act, that nothing in the act shall be construed to prevent the commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the commission, among other matters.

Date of Hearing: September 14, 2023

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 389 (

Author:Ramos) – As Amended Ver:September 11, 2023

SUBJECT: Native American repatriation: California Native American Graves Protection and Repatriation Act of 2001: California State University.

SUMMARY: Requires the California State University (CSU) to comply with various requirements related to the handling, maintenance, and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA). Specifically, this bill:

1. Establishes various requirements for the CSU to fully implement federal NAGPRA and CalNAGPRA, including, but not limited to, all of the following:
   1. Facilitate the establishment, composition, and function of systemwide and campus-level committees with respect to reviewing and advising the university on matters related to the university’s implementation of legal requirements to increase repatriation outcomes or dispositions of Native American human remains and cultural items to California Indian tribes;
   2. Adopt and implement systemwide policies regarding the culturally appropriate treatment of Native American human remains and cultural items, including a policy that prohibits the use of Native American human remains or cultural items for the purposes of teaching or research at the CSU while in the possession of a CSU campus or museum, as specified;
   3. Adopt and implement clear and transparent policies and procedures on the systemwide requirements for submitting, processing, and implementing claims for the repatriation of human remains and cultural items, demonstrating cultural affiliation, notification to tribes of human remains and cultural items deemed culturally affiliated and unidentifiable and from whose state aboriginal territory the items were removed, as specified;
   4. Adopt or amend systemwide CSU museum collection management policies to explicitly provide for the deaccession of collections containing Native American human remains and cultural items to effect the timely and respectful return of those items pursuant to valid claims submitted by a California Indian tribe;
   5. Adopt systemwide CSU policies and procedures for the identification and disposition of culturally unidentifiable human remains and cultural items, as required by the federal NAGPRA, as specified;
   6. Submit an annual report by December 31, 2024, and annually thereafter to the Legislature, on the CSU’s systemwide progress in reviewing its collections of Native American human remains and cultural items;
   7. Adopt supplemental policies if a campus determines that individual circumstances are not adequately addressed in the adopted and approved systemwide policies, in consultation with California Indian tribes;
   8. Establish a systemwide NAGPRA Implementation and Oversight Committee, with at least a majority of the voting members from California Indian tribes, as specified;
   9. Require each CSU campus to establish a campus-based NAGPRA Implementation Committee, with at least a majority of each campus membership to be from California Indian tribes, as specified; and,
   10. To ensure that campuses have the funding necessary to comply:
       1. Require each campus with Native American remains or cultural items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner;
       2. Compile the estimates into a systemwide report, disaggregated by campus, and submit it to the Native American Heritage Commission and the Legislature; and,
       3. After evaluating the reasonableness of the campus estimate, identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure that campuses have adequate funding to support their activities.
2. Makes clarifying and technical changes.

EXISTING LAW:

Federal law.

1. Creates the NAGPRA of 1990, which, in part:
   1. Requires federal agencies and institutions, including museums that receive federal funding, to repatriate "cultural items" to lineal descendants and culturally-affiliated Indian tribes and Native Hawaiian organizations, as provided;
   2. Defines cultural items to include human remains, funerary objects, sacred objects, and objects of cultural patrimony, as specified;
   3. Declares that the Secretary of the Interior may assess civil penalties on museums that fail to comply;
   4. Establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands;
   5. Makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act, as provided; and,
   6. Establishes penalties for trafficking in remains or cultural items, including up to 12 months imprisonment and a $100,000 fine for first offender violations (Public Law 101- 601; 25 U.S.C. 3001-3013).

State law.

1. Establishes the CSU system, made of 23 campuses, and bestows upon the CSU Trustees, through the Board of Trustees, the power, duties, and functions with respect to the management, administration, and control of the CSU system (Education Code Section 66606 and 89030, et seq.).
2. Creates the CalNAGPRA, which, in part:
   1. Applies the state’s repatriation policy consistently with the NAGPRA;
   2. Facilitates the implementation of NAGPRA with respect to publicaly funded agencies and museums in California;
   3. Encourages voluntary disclosure and return of Native American human remains and cultural items by a private institution or museum;
   4. Stipulates that an agency or museum receiving a repatriation request shall repatriate human remains and cultural items, as specified; and,
   5. Stipulates that if there is a committee or group of California Indian tribes authorized by their respective tribal governments to accept repatriation of human remains and cultural items originating from their state aboriginal territory or culturally affiliated with those tribal governments, the items may be repatriated to those groups (Health and Safety Code (HSC) Section 8010, et seq.).
3. Establishes the University of California (UC) NAGPRA, a structure for a UC systemwide campus-based NAGPRA process for repatriation for UC campuses that have Native American cultural artifacts or remains. Creates UC NAGPRA, a UC administrative oversight committee, with membership as follows:
   1. Three voting members of a California Indian tribe as defined under the federal NAGPRA that are either an elder, spiritual leader, tribal leader, tribal member, or designated by the governing body of the individual’s tribe;
   2. One voting member of a California Indian tribe that is not recognized by the federal government, but is indigenous to the territory that is now known as the State of California, is listed in the Bureau of Indian Affairs Branch of Acknowledgement and Research petitioner list pursuant to Section 82.1 of Title 25 of the Federal Code of Regulations and is determined by the commission to be a tribe that is eligible to participate in the repatriation process set forth in this chapter;
   3. Four voting members from the UC. Not fewer than two of these members shall be affiliated with an American Indian or Native American Studies program; and,
   4. One nonvoting member from each UC campus that is subject to the federal NAGPRA (HSC Section 8026).

FISCAL EFFECT: According to the Senate Committee on Appropriations:

The CSU Chancellor’s Office estimates ongoing General Fund costs of $4 - $5 million to ensure appropriate staffing levels and implement the inventory controls necessary to comply with CalNAGPRA requirements.

COMMENTS: Gut and amend. The former version of this measure, in part, sought to exempt from the California Public Records Act genealogical records of tribal members and cultural affiliation records under specified conditions; and, exempt from the Bagley-Keene Open Meeting Act the Native American Heritage Commission (NAHC) when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by NAHC. However, on August 28, 2023, the aforementioned contents of this measure were stricken entirely, and, on September 11, 2023, the measure was significantly amended again.

This measure now, in part, requires the CSU to comply with various requirements related to the handling, maintenance, and repatriation of Native American human remains and cultural items under NAGPRA and CalNAGPRA.

Need for the measure. According to the author, “this bill is a continuation on the work I have done on the proper repatriation of Native American remains and cultural items – this time for the California State University (CSU) system. After reviewing the auditor’s report released in June, I was upset at the lack of effort and respect from the CSUs. It has been over 30 years since the enactment of NAGPRA and CalNAGPRA, the fact that we are still dealing with this issue today is frustrating, and we must take action. This is an issue that I care deeply about and we must continue to hold institutions accountable so that we can allow for Native American tribes to finally have peace and closure on an issue that has been around for generations.”

The author contends that, “currently, the CSU system is not compliant with the NAGPRA and CalNAGPRA. Just recently, the State Auditor released a report, which highlighted key issues of the CSU’s compliance with NAGRPA and CalNAGPRA. It will take at least a decade of effort to repatriate all the items in the CSU’s collection. It also found that over half of the campuses with collections have not finished their reviews and 16 have little to no activity.”

Background on federal and CalNAGPRA. The federal NAGPRA was enacted on November 16, 1990, to address the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. In 1990, the Congressional Budget Office estimated that NAGPRA would apply to the remains of between 100,000 and 200,000 individuals in museums and Federal agency collections. In the last 15+ years, museums and Federal agencies have announced their willingness to repatriate the remains of 31,093 individuals. Another 111,000 human remains were listed as “culturally unidentifiable.”

The federal NAGPRA assigned several implementation responsibilities to the Secretary of the Interior, including:

1. Promulgating implementing regulations;
2. Establishing and providing staff support to the Native American Graves Protection and Repatriation Review Committee;
3. Making grants to assist museums, Indian tribes, and Native Hawaiian organizations in fulfilling their responsibilities under the Act;
4. Extending inventory deadlines for museums that demonstrate a good faith effort;
5. Publishing notices for museums and Federal agencies in the Federal Register;
6. Assessing civil penalties on museums that fail to comply with provisions of the Act; and,
7. Responding to notices of inadvertent discoveries of Native American cultural items on Department of the Interior lands.

The CalNAGPRA, enacted in 2001, created a process whereby California Native Tribes could seek to repatriate human remains and objects from their cultural heritage from museums and custodial institutions. Additionally, CalNAGPRA established a ten-member appointed Repatriation Commission with authority to order repatriation, to mediate disputes, to issue subpoenas, and to impose civil penalties. Further, CalNAGPRA required any agency or museum that has possession or control over collections of California Native American human remains and associated funerary objects to complete, by January 1, 2003, an inventory of all items and specified information in facilitating the return of the objects.

The Legislature amended CalNAGPRA in 2018 in response to allegations from stakeholders that the UC had an inferior record of completed repatriations and that participation by tribes in the repatriation process had been limited.

Recent California State Auditor (CSA) Audit. The CSA released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. The audit found that, although the CSU Chancellor’s Office has recently taken some steps to support the CSU campuses’ repatriation efforts, the CSU Chancellor’s Office must take additional action to ensure that CSU campuses’ prioritize complying with federal NAGPRA and CalNAGPRA.

The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four campuses: CSU Chico, Sacramento, San Diego, and San José. The Auditor found that of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and that two campuses that returned remains or cultural items did not follow NAGPRA requirements when returning remains or cultural items. Further, the audit found that more than half of the 21 CSU campuses do not yet know the extent of their collections of remains and cultural items, despite federal law requiring them to do so by late 1995.

Additionally, the audit found that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The CSU system has repatriated only 6% of its collections to tribes to date. The audit also found that guidance or oversight has not been provided by the CSU Chancellor’s Office to CSU campuses in order to ensure compliance with NAGPRA laws.

As a result of the aforementioned findings, the CSA issued recommendations to the Legislature and the CSU Chancellor’s Office. The CSA calls on the Legislature to require annual reporting from the CSU Chancellor’s Office on systemwide progress in reviewing its collections, consulting with tribes, and repatriating human remains and cultural items. The audit recommendations also directed the CSU Chancellor’s Office to do all of the following, in summary:

1. Monitor campus efforts to review their collections and require the completion of their inventories by December 2024.
2. Ensure that campuses properly consult with tribes regarding protocols for handling and identifying remains and cultural items, and issue a systemwide NAGPRA policy establishing consistent repatriation processes and training requirements in consultation with California tribes and the Native American Heritage Commission.
3. Establish a systemwide NAGPRA oversight committee by December 2023.
4. Implement a process for campuses to periodically report their repatriation activity to the systemwide oversight committee.
5. Require that campuses with more than 100 remains and cultural items also establish NAGPRA committees and have full-time, experienced repatriation coordinators by June 2024.
6. Formalize its administrative structure by assigning a dedicated position to directly oversee the work of the systemwide CalNAGPRA project manager.
7. Require each campus with NAGPRA collections to identify and estimate, by January 2024, the funding and other resources they need to complete repatriation in an appropriate and timely manner.
8. Identify and provide the required funding from existing systemwide or campus resources or seek additional funding from the Legislature to ensure that campuses have adequate funding to support their federal NAGPRA and CalNAGPRA activities.

The CSU Interim Chancellor, Jolene Koester, responded to the audit findings, and stated in a letter, dated June 8, 2023, to the State Auditor, “the CSU intends to implement each recommendation made by your office as reflected in the audit report. Additionally, the Chancellor’s Office will finalize and implement a systemwide NAGPRA/CalNAGPRA policy, which includes appropriate oversight, that will be vetted through Tribal consultation, require annual campus reporting of NAGPRA/CalNAGPRA activity and progress, and ensure adequate funding and resources for NAGPRA/CalNAGPRA efforts.”

This measure, in part, seeks to codify recommendations by the CSA, including, but not limited to, requiring the CSU to report on the progress towards repatriation pursuant to NAGPRA and CalNAGPRA.

Committee comments. Committee Staff understands that this measure, in addition to addressing the CSA audit, seeks to align CSU’s NAGPRA and CalNAGPRA to existing law for the UC. The measure appears to accomplish said intent, however, due to the timing of this gut and amend and the subsequent additional substantive amendments, this measure was not heard by the Assembly Committee on Arts, Entertainment, Sports, and Tourism, which shares NAGPRA and CalNAGPRA jurisdiction with this Committee.

Further, while the CSU Chancellor’s Office committed to implementing all of the CSA’s audit recommendations, it is presently unclear if the CSU has the fiscal resources to fully implement the audit recommendations and the requirements contained in this measure.

Looking ahead to the second year of the 2023-24 Legislative Session, the author may wish to ask for a budget appropriation to ensure the CSU fully implements all the provisions contained in this measure.

Arguments in support. According to the San Manuel Band of Mission Indians (San Manuel), “the audit, released June 29, revealed that the CSU system has over 700,000 remains and cultural items in their possession yet to be returned and repatriated to Indian Tribes. Despite enactment of the federal NAGPRA more than 30 years ago, little to no progress has been made in repatriating items that are of historical and cultural significance to Tribes.”

San Manuel further contends that, “this bill is aimed at holding the CSU accountable, and allowing for tribal families to have peace and closure on an issue that has been around for generations.”

Arguments of concern. While the Federated Indians of Graton Rancheria (the Tribe) officially removed their opposition to the August 28, 2023 version of this measure, the Tribe, now neutral to this measure, expressed the following: “we stand firm in our repeated request that all tribal legislation – particularly legation that goes to the very heart of tribal sovereignty, culture, and our ancestors – be developed transparently and with full tribal consultation. That did not occur here, but we expect and hope that the process will be honored going further.”

The Tribe believes that while amendments taken, as reflected in the most recent version of this measure (as in print on September 11, 2023), “strengthen the bill and better align AB 389 with the existing framework for the UC system, we believe more must be done to strengthen our state’s repatriation laws.”

Related legislation. AB 226 (Ramos) of 2023, which, at the time of this analysis being released, is pending action on the Senate Floor, in part, requires additional audits in 2024 and 2026 by the CSA regarding UC’s compliance with federal and state NAGPRA relating to Native American remains and cultural items. Further, this measure strongly urges, annually by June 30, 3024, and annually thereafter, on each UC campus’ progress towards completing repatriation of Native American remains and cultural items. Additionally, this measure strongly urges the UC Office of the President to provide funding to support each UC Campus’ efforts towards repatriation. Lastly, this bill strongly urges UC to prohibit use of any Native American human remains or cultural items for the purpose of teaching or research at UC.

SB 61 (Dodd) of 2023, which was held on the Suspense File in the Assembly Committee on Appropriations, in part, requires the UC Office of the President, as a condition for the use of state funds, to handle and maintain Native American human remains and cultural items, and must comply with various requirements regarding the repatriation of Native American human and cultural items, in addition to requirements already established by the CalNAGPRA.

Prior legislation. AB 275 (Ramos), Chapter 167, Statutes of 2020, in part, revised the process for agencies to complete and review their inventories of collections of California Native American human remains and associated funerary objects for repatriation.

AB 1662 (Ramos and Gloria), Chapter 112, Statutes of 2019, added an additional member from a California Tribe to the UC NAGPRA Implementation and Oversight Committee.

AB 2836 (Gloria), Chapter 823, Statutes of 2018, in part, required the UC Regents to establish and support a systemwide UC 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, in part, enacted the CalNAGPRA 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.

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
Cahuilla Band of Indians
California Faculty Association
California Indian Legal Services
California Indian Nations College
California State University, Office of The Chancellor
California Tribal Families Coalition
Enterprise Rancheria
Generation Up
Indigenous Justice
International Indian Treaty Council
Morongo Band of Mission Indians
Pala Band of Mission Indians
Picayune Rancheria of the Chukchansi Indians
Redding Rancheria
Rincon San Luiseno Band of Indians

San Manuel Band of Mission Indians (Sponsor)
Santa Rosa Rancheria Tachi Yokut Tribe
Santa Ynez Band of Chumash Indians
Shingle Springs Band of Miwok Indians
Soboba Band of Luiseno Indians
Tachi Yokut Tribe
Wilton Rancheria
Yurok Tribe

Opposition

None on file based on the most recent version of this measure.

Analysis Prepared by: Jeanice Warden / HIGHER ED. / (916) 319-3960

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 389

Author:(Ramos, et al.)

As Amended Ver:September 11, 2023

Majority vote

SUMMARY

Original Committee of Reference: NAT. RES.

SUMMARY: Requires the California State University (CSU) to comply with various requirements related to the handling, maintenance, and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA).

Senate Amendments

Current Committee Recommendation: Concur

1. Establish various requirements for the CSU to fully implement federal NAGPRA and CalNAGPRA, including, but not limited to, all of the following:
   1. Facilitate the establishment, composition, and function of systemwide and campus-level committees with respect to reviewing and advising the university on matters related to the university’s implementation of legal requirements to increase repatriation outcomes or dispositions of Native American human remains and cultural items to California Indian tribes;
   2. Adopt and implement systemwide policies regarding the culturally appropriate treatment of Native American human remains and cultural items, including a policy that prohibits the use of Native American human remains or cultural items for the purposes of teaching or research at the CSU while in the possession of a CSU campus or museum, as specified;
   3. Adopt and implement clear and transparent policies and procedures on the systemwide requirements for submitting, processing, and implementing claims for the repatriation of human remains and cultural items, demonstrating cultural affiliation, notification to tribes of human remains and cultural items deemed culturally affiliated and unidentifiable and from whose state aboriginal territory the items were removed, as specified;
   4. Adopt or amend systemwide CSU museum collection management policies to explicitly provide for the deaccession of collections containing Native American human remains and cultural items to effect the timely and respectful return of those items pursuant to valid claims submitted by a California Indian tribe;
   5. Adopt systemwide CSU policies and procedures for the identification and disposition of culturally unidentifiable human remains and cultural items, as required by the federal NAGPRA, as specified;
   6. Submit an annual report by December 31, 2024, and annually thereafter to the Legislature, on the CSU’s systemwide progress in reviewing its collections of Native American human remains and cultural items;
   7. Adopt supplemental policies if a campus determines that individual circumstances are not adequately addressed in the adopted and approved systemwide policies, in consultation with California Indian tribes;
   8. Establish a systemwide NAGPRA Implementation and Oversight Committee, with at least a majority of the voting members from California Indian tribes, as specified;
   9. Require each CSU campus to establish a campus-based NAGPRA Implementation Committee, with at least a majority of each campus membership to be from California Indian tribes, as specified; and,
   10. To ensure that campuses have the funding necessary to comply:
       1. Require each campus with Native American remains or cultural items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner;
       2. Compile the estimates into a systemwide report, disaggregated by campus, and submit it to the Native American Heritage Commission and the Legislature; and,
       3. After evaluating the reasonableness of the campus estimate, identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure that campuses have adequate funding to support their activities.
2. Make clarifying and technical changes.

COMMENTS

Gut and amend. The former version of this measure, in part, sought to exempt from the California Public Records Act genealogical records of tribal members and cultural affiliation records under specified conditions; and, exempt from the Bagley-Keene Open Meeting Act the Native American Heritage Commission (NAHC) when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by NAHC. However, on August 28, 2023, the aforementioned contents of this measure were stricken entirely, and, on September 11, 2023, the measure was significantly amended again.

This measure now, in part, requires the CSU to comply with various requirements related to the handling, maintenance, and repatriation of Native American human remains and cultural items under NAGPRA and CalNAGPRA.

Recent California State Auditor (CSA) Audit. The CSA released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. The audit found that, although the CSU Chancellor’s Office has recently taken some steps to support the CSU campuses’ repatriation efforts, the CSU Chancellor’s Office must take additional action to ensure that CSU campuses’ prioritize complying with federal NAGPRA and CalNAGPRA.

The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four campuses: CSU Chico, Sacramento, San Diego, and San José. The Auditor found that of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and that two campuses that returned remains or cultural items did not follow NAGPRA requirements when returning remains or cultural items. Further, the audit found that more than half of the 21 CSU campuses do not yet know the extent of their collections of remains and cultural items, despite federal law requiring them to do so by late 1995.

Additionally, the audit found that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The CSU system has repatriated only 6% of its collections to tribes to date. The audit also found that guidance or oversight has not been provided by the CSU Chancellor’s Office to CSU campuses in order to ensure compliance with NAGPRA laws.

As a result of the aforementioned findings, the CSA issued recommendations to the Legislature and the CSU Chancellor’s Office. The CSA calls on the Legislature to require annual reporting from the CSU Chancellor’s Office on systemwide progress in reviewing its collections, consulting with tribes, and repatriating human remains and cultural items.

The CSU Interim Chancellor, Jolene Koester, responded to the audit findings, and stated in a letter, dated June 8, 2023, to the State Auditor, 'the CSU intends to implement each recommendation made by your office as reflected in the audit report. Additionally, the Chancellor’s Office will finalize and implement a systemwide NAGPRA/CalNAGPRA policy, which includes appropriate oversight, that will be vetted through Tribal consultation, require annual campus reporting of NAGPRA/CalNAGPRA activity and progress, and ensure adequate funding and resources for NAGPRA/CalNAGPRA efforts.'

For further discussion of the CSA audit, please refer to the Assembly Committee on Higher Education Policy Analysis of this measure.

This measure, in part, seeks to codify recommendations by the CSA, including, but not limited to, requiring the CSU to report on the progress towards repatriation pursuant to NAGPRA and CalNAGPRA.

According to the Author

'This bill is a continuation on the work I have done on the proper repatriation of Native American remains and cultural items – this time for the California State University (CSU) system. After reviewing the auditor’s report released in June, I was upset at the lack of effort and respect from the CSUs. It has been over 30 years since the enactment of NAGPRA and CalNAGPRA, the fact that we are still dealing with this issue today is frustrating, and we must take action. This is an issue that I care deeply about and we must continue to hold institutions accountable so that we can allow for Native American tribes to finally have peace and closure on an issue that has been around for generations.'

The author contends that, 'currently, the CSU system is not compliant with the NAGPRA and CalNAGPRA. Just recently, the State Auditor released a report, which highlighted key issues of the CSU’s compliance with NAGRPA and CalNAGPRA. It will take at least a decade of effort to repatriate all the items in the CSU’s collection. It also found that over half of the campuses with collections have not finished their reviews and 16 have little to no activity.'

Arguments in Support

According to the San Manuel Band of Mission Indians (San Manuel), 'the audit, released June 29, revealed that the CSU system has over 700,000 remains and cultural items in their possession yet to be returned and repatriated to Indian Tribes. Despite enactment of the federal NAGPRA more than 30 years ago, little to no progress has been made in repatriating items that are of historical and cultural significance to Tribes.'

San Manuel further contends that, 'this bill is aimed at holding the CSU accountable, and allowing for tribal families to have peace and closure on an issue that has been around for generations.'

Arguments in Opposition

None on file based on the most recent version of this measure.

However, while the Federated Indians of Graton Rancheria (the Tribe) officially removed their opposition to the August 28, 2023 version of this measure, the Tribe, now neutral to this measure, expressed the following: 'we stand firm in our repeated request that all tribal legislation – particularly legation that goes to the very heart of tribal sovereignty, culture, and our ancestors – be developed transparently and with full tribal consultation. That did not occur here, but we expect and hope that the process will be honored going further.'

The Tribe believes that while amendments taken, as reflected in the most recent version of this measure (as in print on September 11, 2023), 'strengthen the bill and better align AB 389 with the existing framework for the UC system, we believe more must be done to strengthen our state’s repatriation laws.'

FISCAL COMMENTS

According to the Senate Committee on Appropriations:

The CSU Chancellor’s Office estimates ongoing General Fund costs of $4 - $5 million to ensure appropriate staffing levels and implement the inventory controls necessary to comply with CalNAGPRA requirements.

VOTES

ASM NATURAL RESOURCES: 11-0-0

YES: Luz Rivas, Flora, Addis, Friedman, Hoover, Mathis, Muratsuchi, Pellerin, Ward, Wood, Zbur

ASM GOVERNMENTAL ORGANIZATION: 22-0-0

YES: Santiago, Lackey, Aguiar-Curry, Berman, Bryan, Cervantes, Megan Dahle, Davies, Garcia, Gipson, Jones-Sawyer, Low, Mathis, McCarty, McKinnor, Jim Patterson, Quirk-Silva, Ramos, Robert Rivas, Blanca Rubio, Ta, Villapudua

ASM APPROPRIATIONS: 14-0-2

YES: Holden, Megan Dahle, Calderon, Wendy Carrillo, Dixon, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Wilson

ABS, ABST OR NV: Bryan, Mathis

ASSEMBLY FLOOR: 74-0-6

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

ABS, ABST OR NV: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

ASM HIGHER EDUCATION: 10-0-2

YES: Mike Fong, Ta, Addis, Arambula, Gabriel, Ortega, Sanchez, Santiago, Wallis, Weber

ABS, ABST OR NV: Irwin, Low

UPDATED

VERSION: September 11, 2023

CONSULTANT: Jeanice Warden / HIGHER ED. / (916) 319-3960 FN: 0002465

 THIRD READING  

Bill No: AB 389

Author: Ramos (D), Garcia (D), Mathis (R) and Valencia (D), et al.

Amended: 9/11/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 11-0, 6/22/23

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, McGuire, Padilla, Stern

SENATE EDUCATION COMMITTEE: 5-0, 9/11/23

AYES: Newman, Ochoa Bogh, Cortese, Glazer, McGuire

NO VOTE RECORDED: Smallwood-Cuevas, Wilk

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/12/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

ASSEMBLY FLOOR: Not relevant

SUBJECT: Native American repatriation: California Native American Graves Protection and Repatriation Act of 2001: California State University

SOURCE: Picayune Rancheria of the Chukchansi Indians

Redding Rancheria

San Manuel Band of Mission Indians

Shingle Springs Band of Miwok Indians

Tachi Yokut Tribe

Tule River Tribe

DIGEST:

This bill requires the California State University (CSU) to comply with various requirements related to the handling, maintenance and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA).

ANALYSIS: Existing federal law creates the Native American Graves Protection and Repatriation Act (federal NAGPRA) of 1990, which, in part:

1. Requires federal agencies, museums, and institutions, which include University of California (UC) campuses, to repatriate "cultural items" to lineal descendants and culturally-affiliated Indian tribes and Native Hawaiian organizations, as provided;
2. Defines cultural items to include human remains, funerary objects, sacred objects, and objects of cultural patrimony, as specified;
3. Declares that the Secretary of the Interior may assess civil penalties on museums that fail to comply;
4. Establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands;
5. Makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act, as provided; and,
6. Establishes penalties for trafficking in remains or cultural items, including up to 12 months imprisonment and a $100,000 fine for first offender violations. (Public Law 101- 601; 25 U.S.C. 3001-3013)

Existing state law creates the CalNAGPRA, which, in part:

1. States that it is the intent of the Legislature to, among other things, apply the state’s repatriation policy consistently with the federal NAGPRA while considering the unique history of California towards California Indian tribes and facilitate the implementation of the federal NAGPRA with respect to publicly funded agencies and museums in California.
2. Requires any public agency or museum (includes UC and CSU campuses) that has possession or control over collections of California Native American human remains or associated funerary objects to complete a review of their inventories of all these remains and associated funerary objects in accordance with the requirements specified in the act.
3. Requires agencies and museums to consult with affiliated California Indian tribes on any protocols to be used in the inventory process prior to new or additional inventory work being conducted.
4. Requires an agency or museum receiving a repatriation request for human remains and cultural items to follow the criteria specified in the act.
5. Requires, further, the UC (UC only), as a condition for using state funds for the handling or maintenance of Native American human remains and cultural items, to establish a systemwide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee and:
   1. Requires the UC Regents to establish a systemwide NAGPRA Implementation and Oversight Committee with membership as specified.
   2. Requires UC, in consultation with the California Native American Tribes, to adopt and implement certain policies and procedures to better implement the federal NAGPRA and to timely submit the policies and procedures to the Native American Heritage Commission for review and comment.
   3. Requires that UC ensure that each campus committee utilize the specified policies and procedures adopted and also adopt procedures to support appeals and dispute resolutions in cases where a tribe disagrees with a campus determination regarding repatriation or disposition of human remains or cultural items.
   4. Authorizes a UC campus to adopt policies to supplement the systemwide policies adopted, under certain conditions and in consultation with California Native American tribes.
   5. Requires each campus that is subject to the federal NAGPRA to establish a NAGPRA implementation committee, with membership as specified. The act provides that claims for repatriation or claims of any violation of the policies and procedures adopted are to be submitted to the campus committee for determination.
   6. Requires the California State Auditor (Auditor) to conduct an audit regarding the UC’s compliance with the federal NAGPRA and the CalNAGPRA and report it’s findings to the Legislature commencing in 2019 and again in 2021. (Health and Safety Code § 8010 et,al. and § 8024 – 8028.5)

This bill establishes various requirements for the CSU to better implement the federal NAGPRA. Notable provisions include the following:

1. Facilitate the establishment, composition, and function of systemwide and campus-level committees with respect to reviewing and advising the university on matters related to the university’s implementation of legal requirements to increase repatriation outcomes or dispositions of Native American human remains and cultural items to California Indian tribes.
2. Adopt and implement systemwide policies regarding the culturally appropriate treatment of Native American human remains and cultural items, including a policy that prohibits the use of Native American human remains or cultural items for the purposes of teaching or research at the CSU while in the possession of a CSU campus or museum, as specified.
3. Adopt and implement clear and transparent policies and procedures on the systemwide requirements for submitting, processing, and implementing claims for the repatriation of human remains and cultural items, demonstrating cultural affiliation, notification to tribes of human remains and cultural items deemed culturally affiliated and unidentifiable and from whose state aboriginal territory the items were removed, as specified.
4. Adopt or amend systemwide CSU museum collection management policies to explicitly provide for the deaccession of collections containing Native American human remains and cultural items to effect the timely and respectful return of those items pursuant to valid claims submitted by a California Indian tribe.
5. Adopt systemwide CSU policies and procedures for the identification and disposition of culturally unidentifiable human remains and cultural items, as required by the federal NAGPRA, as specified.
6. Submit an annual report by December 31, 2024, and annually thereafter to the Legislature, on the CSU’s systemwide progress in reviewing its collections of Native American human remains and cultural items.
7. Adopt supplemental policies if a campus determines that individual circumstances are not adequately addressed in the adopted and approved systemwide policies, in consultation with California Indian tribes.
8. Establish a systemwide NAGPRA Implementation and Oversight Committee, with at least a majority of the voting members from California Indian tribes, as specified.
9. Require each CSU campus to establish a campus-based NAGPRA Implementation Committee, with at least a majority of each campus membership to be from California Indian tribes, as specified.
10. Provide that to ensure that campuses have the funding necessary to comply with the act:
    1. Require each campus with Native American remains or cultural items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner.
    2. Compile the estimates into a systemwide report, disaggregated by campus, and submit it to the Native American Heritage Commission and the Legislature.
    3. After evaluating the reasonableness of the campus estimate, identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure adequate funding to support their activities.
11. Provide that the provisions of the bill are severable, as specified.

Comments

1. Need for the bill. According to the author, “This bill is a continuation on the work I have done on the proper repatriation of Native American remains and cultural items – this time for the California State University (CSU) System. After reviewing the Auditor’s report released in June, I was upset at the lack of effort and respect from the CSUs. It has been over 30 years since the enactment of NAGPRA and CalNAGPRA, the fact that we are still dealing with this issue today is frustrating, and we must take action. This is an issue that I care deeply about and we must continue to hold institutions accountable so that we can allow for Native American tribes to finally have peace and closure on an issue that has been around for generations.”
2. Audit Report. The Auditor released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. It states that, although the CSU Chancellor’s Office has taken steps recently to support the campuses’ repatriation efforts, it must take additional action to ensure that campuses prioritize complying with federal NAGPRA and CalNAGPRA. The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four: CSU Chico, Sacramento, San Diego, and San Jose. Of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and two campuses that returned remains or cultural items did not follow NAGPRA requirements when doing so. More than half of these 21 campuses do not yet know the extent of their collections of remains and cultural items, despite federal law requiring them to do so by late 1995. The report notes that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The system has repatriated only 6% of its collections to tribes to date. The audit additionally found that guidance or oversight has not been provided by the Chancellor’s Office to campuses in order to ensure compliance with NAGPRA laws.

As a result of these findings, the Auditor provided legislative and Chancellor’s Office recommendations. The Legislature is to require annual reporting from the CSU Chancellor’s Office on systemwide progress as specified. Audit recommendations direct the CSU Chancellor’s Office to do all of the following, in summary:

• Monitor campus efforts to review their collections and require the completion of their inventories by December 2024.
• Ensure that campuses properly consult with tribes regarding protocols for handling and identifying remains and cultural items, and issue a systemwide NAGPRA policy establishing consistent repatriation processes and training requirements in consultation with California tribes and the Native American Heritage Commission.
• Establish a systemwide NAGPRA oversight committee by December 2023.
• Implement a process for campuses to periodically report their repatriation activity to the systemwide oversight committee.
• Require that campuses with more than 100 remains and cultural items also establish NAGPRA committees and have full-time, experienced repatriation coordinators by June 2024.
• Assign a dedicated position to directly oversee the work of the systemwide CalNAGPRA project manager.
• Require each campus with NAGPRA collections to identify and estimate, by January 2024, the funding and other resources they need to complete repatriation in an appropriate and timely manner.
• Identify and provide the required funding from existing systemwide or campus resources or seek additional funding from the Legislature to ensure that campuses have adequate funding to support their federal NAGPRA and CalNAGPRA activities.

This bill expands upon the audit recommendations by establishing specific implementation requirements, including the composition of committees.

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

According to the Senate Appropriations Committee, the CSU Chancellor’s Office estimates ongoing General Fund costs of $4 - $5 million to ensure appropriate staffing levels and implement the inventory controls necessary to comply with CalNAGPRA requirements.

SUPPORT: (Verified 9/13/23)

Picayune Rancheria of the Chukchansi Indians (co-source)

Redding Rancheria (co-source)

San Manuel Band of Mission Indians (co-source)

Shingle Springs Band of Miwok Indians (co-source)

Tachi Yokut Tribe (co-source)

Tule River Tribe (co-source)

ACLU California Action

Cahuilla Band of Indians

California Indian Legal Services

California Indian Nations College

California State University, Office of the Chancellor

California Tribal Families Coalition

Enterprise Rancheria

Generation Up

Indigenous Justice

International Indian Treaty Council

Morongo Band of Mission Indians

Pala Band of Mission Indians

Santa Rosa Rancheria Tachi Yokut Tribe

Santa Ynez Band of Chumash Indians

Shingle Springs Band of Miwok Indians

Wilton Rancheria

Yurok Tribe

OPPOSITION: (Verified 9/13/23)

United Auburn Indian Community

ASSEMBLY FLOOR: 74-0, 5/18/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Wallis, Ward, Weber, Wicks, Wood, Zbur, Rendon

NO VOTE RECORDED: Cervantes, Vince Fong, Friedman, Villapudua, Waldron, Wilson

Prepared by: Olgalilia Ramirez / ED. / (916) 651-4105

9/13/23 18:28:17

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 389 (Ramos) - Native American repatriation: California Native American Graves Protection and Repatriation Act of 2001: California State University

Bill Summary:

This bill requires the California State University (CSU) to comply with various requirements related to the handling, maintenance and repatriation of Native American human remains and cultural items under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA).

Fiscal Impact:

The CSU Chancellor’s Office estimates ongoing General Fund costs of $4 - $5 million to ensure appropriate staffing levels and implement the inventory controls necessary to comply with CalNAGPRA requirements.

Background:

Existing federal law establishes the Native American Graves Protection and Repatriation Act (federal NAGPRA) of 1990, which, in part:

1. Requires federal agencies, museums, and institutions, which include University of California (UC) campuses, to repatriate "cultural items" to lineal descendants and culturally-affiliated Indian tribes and Native Hawaiian organizations, as provided;
2. Defines cultural items to include human remains, funerary objects, sacred objects, and objects of cultural patrimony, as specified;
3. Declares that the Secretary of the Interior may assess civil penalties on museums that fail to comply;
4. Establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands;
5. Makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act, as provided; and,

Existing state law creates the California Native American Graves Protection and Repatriation Act (CalNAGPRA), which, states that it is the intent of the Legislature to apply the state’s repatriation policy consistently with the federal NAGPRA while considering the unique history of California towards California Indian tribes and facilitate the implementation of the federal NAGPRA with respect to publicly funded agencies and museums in California.

Existing law requires any public agency or museum (include UC and CSU campuses) that has possession or control over collections of California Native American human remains or associated funerary objects to complete a review of their inventories of all these remains and associated funerary objects in accordance with the requirements specified in the act. It requires agencies and museums to consult with affiliated California Indian tribes on any protocols to be used in the inventory process prior to new or additional inventory work being conducted.

Existing law requires the UC, as a condition for using state funds for the handling or maintenance of Native American human remains and cultural items, to establish a systemwide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee, among other things. It also requires the UC, in consultation with the California Native American Tribes, to adopt and implement certain policies and procedures to better implement the federal NAGPRA and to timely submit the policies and procedures to the Native American Heritage Commission for review and comment.

Proposed Law: This bill establishes various requirements for the CSU to better implement the federal NAGPRA. Notable provisions include the following:

Facilitate the establishment, composition, and function of systemwide and campus-level committees with respect to reviewing and advising the university on matters related to the university’s implementation of legal requirements to increase repatriation outcomes or dispositions of Native American human remains and cultural items to California Indian tribes.

Adopt and implement systemwide policies regarding the culturally appropriate treatment of Native American human remains and cultural items, including a policy that prohibits the use of Native American human remains or cultural items for the purposes of teaching or research at the CSU while in the possession of a CSU campus or museum, as specified.

Adopt and implement clear and transparent policies and procedures on the systemwide requirements for submitting, processing, and implementing claims for the repatriation of human remains and cultural items, demonstrating cultural affiliation, notification to tribes of human remains and cultural items deemed culturally affiliated and unidentifiable and from whose state aboriginal territory the items were removed, as specified.

Adopt or amend systemwide CSU museum collection management policies to explicitly provide for the deaccession of collections containing Native American human remains and cultural items to effect the timely and respectful return of those items pursuant to valid claims submitted by a California Indian tribe.

Adopt systemwide CSU policies and procedures for the identification and disposition of culturally unidentifiable human remains and cultural items, as required by the federal NAGPRA, as specified.

Submit an annual report by December 31, 2024, and annually thereafter to the Legislature, on the CSU’s systemwide progress in reviewing its collections of Native American human remains and cultural items.

Adopt supplemental policies if a campus determines that individual circumstances are not adequately addressed in the adopted and approved systemwide policies, in consultation with California Indian tribes.

Establish a systemwide NAGPRA Implementation and Oversight Committee, with at least a majority of the voting members from California Indian tribes, as specified.

Require each CSU campus to establish a campus-based NAGPRA Implementation Committee, with at least a majority of each campus membership to be from California Indian tribes, as specified.

To ensure that campuses have the funding necessary to comply with the act:

Require each campus with Native American remains or cultural items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner.

Compile the estimates into a systemwide report, disaggregated by campus, and submit it to the Native American Heritage Commission and the Legislature.

After evaluating the reasonableness of the campus estimate, identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure that campuses have adequate funding to support their activities.

Related Legislation:

AB 226 (Ramos, 2023), similar to the provisions in this bill but for the University of California (UC), urges UC to report each campus’s progress towards completing repatriation of Native American remains and cultural items. This bill is currently pending on the Senate Floor.

SB 61 (Dodd, 2023), similar to this bill, would codify portions of the audit recommendations related to NAGPRA compliance and requires the UC to comply with various requirements regarding the repatriation of Native American human and cultural items. SB 61 was held on the Suspense File in the Assembly Appropriations Committee.

Staff Comments:

The Auditor released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. The report provides that, although the CSU Chancellor’s Office has taken steps recently to support the campuses’ repatriation efforts, it must take additional action to ensure that campuses prioritize complying with federal NAGPRA and CalNAGPRA. The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four: CSU Chico, Sacramento, San Diego, and San Jose. It found that of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and that two campuses that returned remains or cultural items did not follow NAGPRA requirements when doing so. The report notes that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The system has repatriated only 6% of its collections to tribes to date. As a result of the findings in the report, the Auditor issued specific recommendations to the Legislature and the CSU Chancellor’s Office and provides that the Legislature require annual reporting from the CSU on systemwide progress in reviewing its collections, consulting with tribes, and repatriating human remains and cultural items.

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: Hearing Date: September 11, 2023

Subject:

NOTE: This bill has been amended to replace its contents and this is the first time the bill is being heard in its current form.

SUMMARY

This bill prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the California State University (CSU). It further requires the CSU Chancellor’s Office to comply with various requirements under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA) related to the identification, treatment, and repatriation of Native American human remains and cultural items in its possession.

BACKGROUND

Existing law:

Federal law

1. Creates the Native American Graves Protection and Repatriation Act (federal NAGPRA) of 1990, which, in part:
   1. Requires federal agencies, museums, and institutions, which include University of California (UC) campuses, to repatriate "cultural items" to lineal descendants and culturally-affiliated Indian tribes and Native Hawaiian organizations, as provided;
   2. Defines cultural items to include human remains, funerary objects, sacred objects, and objects of cultural patrimony, as specified;
   3. Declares that the Secretary of the Interior may assess civil penalties on museums that fail to comply;
   4. Establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands;
   5. Makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act, as provided; and,
   6. Establishes penalties for trafficking in remains or cultural items, including up to 12 months imprisonment and a $100,000 fine for first offender violations. (Public Law 101- 601; 25 U.S.C. 3001-3013)

State law:

1. Creates the California Native American Graves Protection and Repatriation Act (CalNAGPRA), which, in part:
   1. States that it is the intent of the Legislature to, among other things, apply the state’s repatriation policy consistently with the federal NAGPRA while considering the unique history of California towards California Indian tribes and facilitate the implementation of the federal NAGPRA with respect to publicly funded agencies and museums in California.
   2. Requires any public agency or museum (include UC and CSU campuses) that has possession or control over collections of California Native American human remains or associated funerary objects to complete a review of their inventories of all these remains and associated funerary objects in accordance with the requirements specified in the act.
   3. Requires agencies and museums to consult with affiliated California Indian tribes on any protocols to be used in the inventory process prior to new or additional inventory work being conducted.
   4. Requires an agency or museum receiving a repatriation request for human remains and cultural items to follow the criteria specified in the act.
   5. Further requires the UC (UC only), as a condition for using state funds for the handling or maintenance of Native American human remains and cultural items, to establish a systemwide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee and:
      1. Requires the UC Regents to establish a systemwide NAGPRA

Implementation and Oversight Committee with membership as specified.

• • 1. Requires UC, in consultation with the California Native American

Tribes, to adopt and implement certain policies and procedures to better implement the federal NAGPRA and to timely submit the policies and procedures to the Native American Heritage Commission for review and comment.

• • 1. Requires that UC ensure that each campus committee utilize the

specified policies and procedures adopted and also adopt procedures to support appeals and dispute resolutions in cases where a tribe disagrees with a campus determination regarding repatriation or disposition of human remains or cultural items.

• • 1. Authorizes a UC campus to adopt policies to supplement the

systemwide policies adopted, under certain conditions and in consultation with California Native American tribes.

• • 1. Requires each campus that is subject to the federal NAGPRA to

establish a NAGPRA implementation committee, with membership as specified. The act provides that claims for repatriation or claims of any violation of the policies and procedures adopted are to be submitted to the campus committee for determination.

• • 1. Requires the California State Auditor (Auditor) to conduct an audit

regarding the UC’s compliance with the federal NAGPRA and the CalNAGPRA and report it is findings to the Legislature commencing in 2019 and again in 2021. (Health and Safety Code § 8010 et,al. and § 8024 – 8028.5)

3) Establishes the CSU, under the administration of the CSU Trustees, as one of the segments of public postsecondary education in this state. The CSU comprises 23 institutions of higher education located throughout the state. (Education Code § 66600-66610)

ANALYSIS

This bill prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the CSU. It further requires the CSU Chancellor’s Office to comply with various requirements under the CalNAGPRA related to the identification, treatment, and repatriation of Native American human remains and cultural items in its possession. Specifically, it:

1. Prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the CSU.
2. Requires that the CSU Chancellor’s Office comply with all of the following requirements related to the CalNAGPRA:
   1. Submit an annual report by December 31, 2024, and annually thereafter to

the Legislature, on the CSU’s systemwide progress in reviewing its collections, consulting with Native American tribes, and repatriating Native American human remains and cultural items.

• 1. To ensure campuses identify all of the Native American remains and

cultural items in their collections, do both of the following:

• • 1. Monitor campus efforts to review their collections and require the

completion of their inventories by December 31, 2025.

• • 1. Ensure that campuses properly consult with Native American tribes,

as specified regarding protocols for handling and identifying Native American remains and cultural items.

• 1. Issue, in consultation with California Native American tribes and the Native

American Heritage Commission, a systemwide policy establishing a consistent repatriation process and training requirements for campuses.

• 1. Establish, by December 31, 2024, an oversight committee to ensure that it

adequately oversees campus-based repatriation activities under the CalNAGPRA and implements a process for campuses to report those activities to the systemwide oversight committee.

• 1. Require campuses with more than 100 Native American remains and

cultural items to:

• • 1. Establish campus-based NAGPRA committees.
    2. By June 30, 2025, have full-time, experienced repatriation

coordinators.

• 1. Formalize an administrative structure by December 31, 2024, that may

include, but is not limited to, the Chancellor’s Office assigning a position within the Chancellor’s Office to directly oversee the work of the systemwide project manager established by CalNAGPRA.

• 1. To ensure that campuses have the funding necessary to comply with the

act, do both of the following:

• • 1. Require each campus with Native American remains or cultural

items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner.

• • 1. After evaluating the reasonableness of the campus estimate,

identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure that campuses have adequate funding to support their activities under CalNAGPRA.

• 1. Defines various terms for purposes of the bill.

STAFF COMMENTS

1. Need for the bill. According to the author, “This bill is a continuation on the work I have done on the proper repatriation of Native American remains and cultural items – this time for the California State University (CSU) System. After reviewing the Auditor’s report released in June, I was upset at the lack of effort and respect from the CSUs. It has been over 30 years since the enactment of NAGPRA and CalNAGPRA, the fact that we are still dealing with this issue today is frustrating, and we must take action. This is an issue that I care deeply about and we must continue to hold institutions accountable so that we can allow for Native American tribes to finally have peace and closure on an issue that has been around for generations.”
2. Audit Report. The Auditor released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. It states that, although the CSU Chancellor’s Office has taken steps recently to support the campuses’ repatriation efforts, it must take additional action to ensure that campuses prioritize complying with federal NAGPRA and CalNAGPRA. The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four: CSU Chico, Sacramento, San Diego, and San Jose. The Auditor found that of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and that two campuses that returned remains or cultural items did not follow NAGPRA requirements when doing so. More than half of these 21 campuses do not yet know the extent of their collections of remains and cultural items, despite federal law requiring them to do so by late 1995. The report notes that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The system has repatriated only 6% of its collections to tribes to date. The audit additionally found that guidance or oversight has not been provided by the Chancellor’s Office to campuses in order to ensure compliance with NAGPRA laws.

As a result of these findings, the Auditor issued recommendations to the Legislature and the Chancellor’s Office. It calls on the Legislature to require annual reporting from the CSU Chancellor’s Office on systemwide progress in reviewing its collections, consulting with tribes, and repatriating human remains and cultural items. Audit recommendations also directed the CSU Chancellor’s Office to do all of the following, in summary:

• Monitor campus efforts to review their collections and require the completion of their inventories by December 2024.
• Ensure that campuses properly consult with tribes regarding protocols for handling and identifying remains and cultural items, and issue a systemwide NAGPRA policy establishing consistent repatriation processes and training requirements in consultation with California tribes and the Native American Heritage Commission.
• Establish a systemwide NAGPRA oversight committee by December 2023.
• Implement a process for campuses to periodically report their repatriation activity to the systemwide oversight committee.
• Require that campuses with more than 100 remains and cultural items also establish NAGPRA committees and have full-time, experienced repatriation coordinators by June 2024.
• Formalize its administrative structure by assigning a dedicated position to directly oversee the work of the systemwide CalNAGPRA project manager.
• Require each campus with NAGPRA collections to identify and estimate, by January 2024, the funding and other resources they need to complete repatriation in an appropriate and timely manner.
• Identify and provide the required funding from existing systemwide or campus resources or seek additional funding from the Legislature to ensure that campuses have adequate funding to support their federal NAGPRA and CalNAGPRA activities.

This bill would codify all of the audit recommendations.

1. CSU and NAGPRA. As noted in the background of this analysis, the 1990 federal NAGPRA and CalNAPGRA establish requirements for the protection, identification, handling, and repatriation of Native American human remains and cultural items from government agencies and museums, including CSU. California NAPGRA establishes a process by which a lineal descendent or a California Indian tribe that meets certain criteria may claim a relationship with and request the return of human remains or cultural items held by an agency or museum with the Native American Heritage Commission. According to the Auditor’s report, the university has historically maintained a significant collection of hundreds of thousands of remains and cultural items. It further notes that the CSU Chancellor’s Office has delegated accountability and oversight of federal NAGPRA and CalNAGPRA activities to the individual campuses. In its response to the Auditor, the Chancellor states that it is the intent of the CSU to implement each recommendation reflected in the report. The chancellor’s response further states, “Additionally, the Chancellor’s Office will finalize and implement a systemwide NAGPRA/CalNAGPRA policy, which includes appropriate oversight, that will be vetted through tribal consultation, require annual campus reporting of NAGPRA/CalNAGPRA activity and progress, and ensure adequate funding and resources for NAGPRA/CalNAGPRA efforts.” By requiring similar accountability measures through statute, this bill attempts to ensure that NAGPRA laws are followed and that California native tribes are more fully consulted.
2. Prior and Related Legislation

AB 226 (Ramos, 2023), similar to the provisions in this bill but for UC, urges, by June 30, 3024, and annually thereafter, the UC to report each campus’s progress towards completing repatriation of Native American remains and cultural items. AB 226 also strongly urges the UC Office of the President to provide funding to support each institution’s efforts toward repatriation. Lastly, UC is strongly urged to prohibit the use of any Native American human remains or cultural items for purposes of teaching or research at UC. AB 226 was approved by this committee by a vote of 7 to 0 and is currently being considered by the Senate Appropriations Committee.

SB 61 (Dodd, 2023), similar to this bill, codifies portions of the audit recommendations related to NAGPRA compliance. Specifically, it requires, as a condition for the use of state funds to handle and maintain Native American human remains and cultural items, that the University of California Office of the President comply with various requirements regarding the repatriation of Native American human and cultural items, including issue guidance on partner entities for item repatriation, establish a uniform process that campuses must adhere to when consulting with tribes regarding university inventories, have full-time repatriation coordinators, and submit detailed repatriation plans with budgets for review. SB 61 and this bill focus on different recommendations; as such, the bills do not appear to establish conflicting policies. SB 61 was passed by this committee by a vote of 7 to 0 and is currently being considered by the Assembly Appropriations Committee.

AB 1662 (Ramos, Chapter 112, Statutes 2019) expands the membership of the UC systemwide 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 the CalNAGPRA 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.

SUPPORT

Picayune Rancheria of the Chukchansi Indians (Co-Sponsor)

Redding Rancheria (Co-Sponsor)

San Manuel Band of Mission Indians (Co-Sponsor)

Tachi Yokut Tribe (Co-Sponsor)

ACLU California Action

Cahuilla Band of Indians

California Indian Legal Services

California Indian Nations College

California State University, Office of the Chancellor

California Tribal Families Coalition

Enterprise Rancheria

Generation Up

Indigenous Justice

International Indian Treaty Council

Morongo Band of Mission Indians

Pala Band of Mission Indians

Santa Rosa Rancheria Tachi Yokut Tribe

Santa Ynez Band of Chumash Indians

Shingle Springs Band of Miwok Indians

Soboba Band of Luiseno Indians

Wilton Rancheria

Yurok Tribe

OPPOSITION

Buena Vista Rancheria of Me-Wuk Indians
Federated Indians of Graton Rancheria
United Auburn Indian Community

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: Hearing Date: September 6, 2023

Subject: .

NOTE: This bill has been amended to replace its contents and this is the first time the bill is being heard in its current form.

SUMMARY

This bill prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the California State University (CSU). It further requires the CSU Chancellor’s Office to comply with various requirements under the California Native American Graves Protection and Repatriation Act of 2001 (CalNAGPRA) related to the identification, treatment, and repatriation of Native American human remains and cultural items in its possession.

BACKGROUND

Existing law:

Federal law

1. Creates the Native American Graves Protection and Repatriation Act (federal NAGPRA) of 1990, which, in part:
   1. Requires federal agencies, museums, and institutions, which include University of California (UC) campuses, to repatriate "cultural items" to lineal descendants and culturally-affiliated Indian tribes and Native Hawaiian organizations, as provided;
   2. Defines cultural items to include human remains, funerary objects, sacred objects, and objects of cultural patrimony, as specified;
   3. Declares that the Secretary of the Interior may assess civil penalties on museums that fail to comply;
   4. Establishes procedures for the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands;
   5. Makes it a criminal offense to traffic in Native American human remains without right of possession or in Native American cultural items obtained in violation of the Act, as provided; and,
   6. Establishes penalties for trafficking in remains or cultural items, including up to 12 months imprisonment and a $100,000 fine for first offender violations. (Public Law 101- 601; 25 U.S.C. 3001-3013)

State law:

1. Creates the California Native American Graves Protection and Repatriation Act (CalNAGPRA), which, in part:
   1. States that it is the intent of the Legislature to, among other things, apply the state’s repatriation policy consistently with the federal NAGPRA while considering the unique history of California towards California Indian tribes and facilitate the implementation of the federal NAGPRA with respect to publicly funded agencies and museums in California.
   2. Requires any public agency or museum (include UC and CSU campuses) that has possession or control over collections of California Native American human remains or associated funerary objects to complete a review of their inventories of all these remains and associated funerary objects in accordance with the requirements specified in the act.
   3. Requires agencies and museums to consult with affiliated California Indian tribes on any protocols to be used in the inventory process prior to new or additional inventory work being conducted.
   4. Requires an agency or museum receiving a repatriation request for human remains and cultural items to follow the criteria specified in the act.
   5. Further requires the UC (UC only), as a condition for using state funds for the handling or maintenance of Native American human remains and cultural items, to establish a systemwide NAGPRA Implementation and Oversight Committee, and for any campus subject to the federal NAGPRA to establish a campus implementation committee and:
      1. Requires the UC Regents to establish a systemwide NAGPRA

Implementation and Oversight Committee with membership as specified.

• • 1. Requires UC, in consultation with the California Native American

Tribes, to adopt and implement certain policies and procedures to better implement the federal NAGPRA and to timely submit the policies and procedures to the Native American Heritage Commission for review and comment.

• • 1. Requires that UC ensure that each campus committee utilize the

specified policies and procedures adopted and also adopt procedures to support appeals and dispute resolutions in cases where a tribe disagrees with a campus determination regarding repatriation or disposition of human remains or cultural items.

• • 1. Authorizes a UC campus to adopt policies to supplement the

systemwide policies adopted, under certain conditions and in consultation with California Native American tribes.

• • 1. Requires each campus that is subject to the federal NAGPRA to

establish a NAGPRA implementation committee, with membership as specified. The act provides that claims for repatriation or claims of any violation of the policies and procedures adopted are to be submitted to the campus committee for determination.

• • 1. Requires the California State Auditor (Auditor) to conduct an audit

regarding the UC’s compliance with the federal NAGPRA and the CalNAGPRA and report it is findings to the Legislature commencing in 2019 and again in 2021. (Health and Safety Code § 8010 et,al. and § 8024 – 8028.5)

3) Establishes the CSU, under the administration of the CSU Trustees, as one of the segments of public postsecondary education in this state. The CSU comprises 23 institutions of higher education located throughout the state. (Education Code § 66600-66610)

ANALYSIS

This bill prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the CSU. It further requires the CSU Chancellor’s Office to comply with various requirements under the CalNAGPRA related to the identification, treatment, and repatriation of Native American human remains and cultural items in its possession. Specifically, it:

1. Prohibits the use of any Native American human remains or cultural items for purposes of teaching or research at the CSU.
2. Requires that the CSU Chancellor’s Office comply with all of the following requirements related to the CalNAGPRA:
   1. Submit an annual report by December 31, 2024, and annually thereafter to

the Legislature, on the CSU’s systemwide progress in reviewing its collections, consulting with Native American tribes, and repatriating Native American human remains and cultural items.

• 1. To ensure campuses identify all of the Native American remains and

cultural items in their collections, do both of the following:

• • 1. Monitor campus efforts to review their collections and require the

completion of their inventories by December 31, 2025.

• • 1. Ensure that campuses properly consult with Native American tribes,

as specified regarding protocols for handling and identifying Native American remains and cultural items.

• 1. Issue, in consultation with California Native American tribes and the Native

American Heritage Commission, a systemwide policy establishing a consistent repatriation process and training requirements for campuses.

• 1. Establish, by December 31, 2024, an oversight committee to ensure that it

adequately oversees campus-based repatriation activities under the CalNAGPRA and implements a process for campuses to report those activities to the systemwide oversight committee.

• 1. Require campuses with more than 100 Native American remains and

cultural items to:

• • 1. Establish campus-based NAGPRA committees.
    2. By June 30, 2025, have full-time, experienced repatriation

coordinators.

• 1. Formalize an administrative structure by December 31, 2024, that may

include, but is not limited to, the Chancellor’s Office assigning a position within the Chancellor’s Office to directly oversee the work of the systemwide project manager established by CalNAGPRA.

• 1. To ensure that campuses have the funding necessary to comply with the

act, do both of the following:

• • 1. Require each campus with Native American remains or cultural

items collections to identify and estimate, by January 31, 2025, the funding and other resources it needs to complete repatriation under the CalNAGPRA in an appropriate and timely manner.

• • 1. After evaluating the reasonableness of the campus estimate,

identify and provide the required funding from existing systemwide or campus-based resources, or seek additional funding from the Legislature, to ensure that campuses have adequate funding to support their activities under CalNAGPRA.

• 1. Defines various terms for purposes of the bill.

STAFF COMMENTS

1. Need for the bill. According to the author, “This bill is a continuation on the work I have done on the proper repatriation of Native American remains and cultural items – this time for the California State University (CSU) System. After reviewing the Auditor’s report released in June, I was upset at the lack of effort and respect from the CSUs. It has been over 30 years since the enactment of NAGPRA and CalNAGPRA, the fact that we are still dealing with this issue today is frustrating, and we must take action. This is an issue that I care deeply about and we must continue to hold institutions accountable so that we can allow for Native American tribes to finally have peace and closure on an issue that has been around for generations.”
2. Audit Report. The Auditor released its report on the CSU’s compliance with federal NAGPRA and CalNAGPRA on June 29, 2023. It states that, although the CSU Chancellor’s Office has taken steps recently to support the campuses’ repatriation efforts, it must take additional action to ensure that campuses prioritize complying with federal NAGPRA and CalNAGPRA. The audit surveyed all 23 CSU campuses and conducted further on-site reviews at four: CSU Chico, Sacramento, San Diego, and San Jose. The Auditor found that of the 21 campuses with NAGPRA collections, more than half have not repatriated any remains or cultural items to tribes, and that two campuses that returned remains or cultural items did not follow NAGPRA requirements when doing so. More than half of these 21 campuses do not yet know the extent of their collections of remains and cultural items, despite federal law requiring them to do so by late 1995. The report notes that campuses generally lack the policies, funding, and staffing necessary to follow the law and repatriate their collections. The system has repatriated only 6% of its collections to tribes to date. The audit additionally found that guidance or oversight has not been provided by the Chancellor’s Office to campuses in order to ensure compliance with NAGPRA laws.

As a result of these findings, the Auditor issued recommendations to the Legislature and the Chancellor’s Office. It calls on the Legislature to require annual reporting from the CSU Chancellor’s Office on systemwide progress in reviewing its collections, consulting with tribes, and repatriating human remains and cultural items. Audit recommendations also directed the CSU Chancellor’s Office to do all of the following, in summary:

• Monitor campus efforts to review their collections and require the completion of their inventories by December 2024.
• Ensure that campuses properly consult with tribes regarding protocols for handling and identifying remains and cultural items, and issue a systemwide NAGPRA policy establishing consistent repatriation processes and training requirements in consultation with California tribes and the Native American Heritage Commission.
• Establish a systemwide NAGPRA oversight committee by December 2023.
• Implement a process for campuses to periodically report their repatriation activity to the systemwide oversight committee.
• Require that campuses with more than 100 remains and cultural items also establish NAGPRA committees and have full-time, experienced repatriation coordinators by June 2024.
• Formalize its administrative structure by assigning a dedicated position to directly oversee the work of the systemwide CalNAGPRA project manager.
• Require each campus with NAGPRA collections to identify and estimate, by January 2024, the funding and other resources they need to complete repatriation in an appropriate and timely manner.
• Identify and provide the required funding from existing systemwide or campus resources or seek additional funding from the Legislature to ensure that campuses have adequate funding to support their federal NAGPRA and CalNAGPRA activities.

This bill would codify all of the audit recommendations.

1. CSU and NAGPRA. As noted in the background of this analysis, the 1990 federal NAGPRA and CalNAPGRA establish requirements for the protection, identification, handling, and repatriation of Native American human remains and cultural items from government agencies and museums, including CSU. California NAPGRA establishes a process by which a lineal descendent or a California Indian tribe that meets certain criteria may claim a relationship with and request the return of human remains or cultural items held by an agency or museum with the Native American Heritage Commission. According to the Auditor’s report, the university has historically maintained a significant collection of hundreds of thousands of remains and cultural items. It further notes that the CSU Chancellor’s Office has delegated accountability and oversight of federal NAGPRA and CalNAGPRA activities to the individual campuses. In its response to the Auditor, the Chancellor states that it is the intent of the CSU to implement each recommendation reflected in the report. The chancellor’s response further states, “Additionally, the Chancellor’s Office will finalize and implement a systemwide NAGPRA/CalNAGPRA policy, which includes appropriate oversight, that will be vetted through tribal consultation, require annual campus reporting of NAGPRA/CalNAGPRA activity and progress, and ensure adequate funding and resources for NAGPRA/CalNAGPRA efforts.” By requiring similar accountability measures through statute, this bill attempts to ensure that NAGPRA laws are followed and that California native tribes are more fully consulted.
2. Prior and Related Legislation

AB 226 (Ramos, 2023), similar to the provisions in this bill but for UC, urges, by June 30, 3024, and annually thereafter, the UC to report each campus’s progress towards completing repatriation of Native American remains and cultural items. AB 226 also strongly urges the UC Office of the President to provide funding to support each institution’s efforts toward repatriation. Lastly, UC is strongly urged to prohibit the use of any Native American human remains or cultural items for purposes of teaching or research at UC. AB 226 was approved by this committee by a vote of 7 to 0 and is currently being considered by the Senate Appropriations Committee.

SB 61 (Dodd, 2023), similar to this bill, codifies portions of the audit recommendations related to NAGPRA compliance. Specifically, it requires, as a condition for the use of state funds to handle and maintain Native American human remains and cultural items, that the University of California Office of the President comply with various requirements regarding the repatriation of Native American human and cultural items, including issue guidance on partner entities for item repatriation, establish a uniform process that campuses must adhere to when consulting with tribes regarding university inventories, have full-time repatriation coordinators, and submit detailed repatriation plans with budgets for review. SB 61 and this bill focus on different recommendations; as such, the bills do not appear to establish conflicting policies. SB 61 was passed by this committee by a vote of 7 to 0 and is currently being considered by the Assembly Appropriations Committee.

AB 1662 (Ramos, Chapter 112, Statutes 2019) expands the membership of the UC systemwide 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 the CalNAGPRA 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.

SUPPORT

San Manuel Band of Mission Indians

OPPOSITION

None received

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 389 Hearing Date: June 22, 2023

Subject: Public resources: Native American Heritage Commission: human remains notifications: tribal contact list: public records

BACKGROUND AND EXISTING LAW

Existing law:

1. Establishes the Native American Heritage Commission (NAHC) in state government consisting of nine members appointed by the Governor with the advice and consent of the Senate. Public Resources Code (PRC) §5097.91.
2. Establishes NAHC’s powers and duties, including, among others, to:
   1. Identify and catalog places of special religious or social significance to Native Americans, and known graves and cemeteries of Native Americans on private lands.
   2. 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 thereto by Native Americans.
   3. 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. PRC §5097.94.
3. Requires a county coroner to notify NAHC by telephone within 24 hours if the coroner determines that discovered human remains are not subject to their authority and recognizes, or has reason to believe, the remains are those of a Native American, as specified. Government Code (GOV) §11126.
4. Requires NAHC, whenever it receives notification of a discovery of Native American human remains from a county coroner, as specified, to immediately notify those persons it believes to be most likely descended from the deceased Native American. PRC §5097.98.
5. Establishes the California Public Records Act. GOV §§7920.000 et seq. Further, under this act:
   1. Finds that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. GOV §7921.000.
   2. Defines “public records” to include any writing, as defined, containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. GOV §7920.530.
   3. Generally provides that this act does not require disclosure of any of the following:
      1. Records of Native American graves, cemeteries, and sacred places.
      2. Records of Native American places, features, and objects, as specified, which are maintained by, or in the possession of, the NAHC, another state agency, or a local agency. GOV §7927.000.

Background

Native American Heritage Commission. AB 4239 (Chapter 1332, Statutes of 1976) established NAHC as the primary government agency responsible for identifying and cataloging Native American cultural resources. Up until this point, there had been little government participation in the protection of California’s cultural resources. As such, one of the NAHC’s primary duties is to prevent irreparable damage to designated sacred sites, as well as to prevent interference with the expression of Native American religion in California.

Furthermore, the bill authorized NAHC to prevent damage to, and insure Native American access to, sacred sites. Moreover, NAHC could request that the court issue an injunction for the site, unless it found evidence that public interest and necessity required otherwise. In addition, the bill authorized NAHC to prepare an inventory of Native American sacred sites located on public lands and required NAHC to review current administrative and statutory protections accorded to such sites.

In 1982, legislation was passed authorizing NAHC to identify a Most Likely Descendant (MLD) when Native American human remains were discovered any place other than a dedicated cemetery. MLDs were granted the legal authority to make recommendations regarding the treatment and disposition of the discovered remains. These recommendations, although they cannot halt work on the project site, give MLDs a means to ensure that the Native American human remains are treated in the appropriate manner.

Today, the NAHC provides protection to Native American human burials and skeletal remains from vandalism and inadvertent destruction. It also provides a legal means by which Native American descendants can make known their concerns regarding the need for sensitive treatment and disposition of Native American burials, skeletal remains, and items associated with Native American burials.

California Public Records Act. Legislation enacting the California Public Records Act (also referred to as “Act”) was signed in 1968, culminating a 15-year-long effort to create a general records law for California. Previously, one was required to look at the law governing the specific type of record in question to determine whether it was disclosable. With the Act, an attempt was made to remove a number of these specific laws from the books. However, preexisting privileges such as the attorney-client privilege have been incorporated by reference into the Act.

The fundamental precept of the Act is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so. Most of the reasons for withholding disclosure of a record are set forth in specific exemptions contained in the Act. However, some confidentiality provisions are incorporated by reference to other laws. Also, the Act provides for a general balancing test by which an agency may withhold records from disclosure, if it can establish that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

There are two recurring interests that justify most of the exemptions from disclosure. First, several Act exemptions are based on a recognition of the individual’s right to privacy (e.g., privacy in certain personnel, medical, or similar records). Second, a number of disclosure exemptions are based on the government’s need to perform its assigned functions in a reasonably efficient manner (e.g., maintaining confidentiality of investigative records, official information, records related to pending litigation, and preliminary notes or memoranda).

If a record contains exempt information, the agency generally must segregate or redact the exempt information and disclose the remainder of the record. If an agency improperly withholds records, a member of the public may enforce, in court, his or her right to inspect or copy the records and receive payment for court costs and attorney’s fees.

PROPOSED LAW

This bill would exempt certain genealogical records of tribal members and cultural affiliation records received by NAHC under specified circumstances from the California Public Records Act. Further, the bill would direct NAHC to make recommendations to a county coroner on human remains notification and repatriation procedures. Specifically, this bill would:

1. Expand NAHC’s powers and duties to include making recommendations to a county coroner on human remains notification and repatriation procedures.
2. Expand the listed exemptions from the California Public Records Act related to Native American records to include genealogical records of tribal members and cultural affiliation records received during a consultation by NAHC relating to:
   1. The inclusion or removal of a Native American tribe, person, or entity on NAHC’s tribal contact list.
   2. Consideration of the persons most likely descended from Native American human remains for specified purposes.
3. Require NAHC, when considering matters related to (1), to give written notice at least 30 days in advance of rendering a decision on those matters to any affected federally recognized Native American tribe and afford the affected federally recognized Native American tribe a meaningful opportunity for tribal consultation with NAHC.
4. Require the written notice required pursuant to (3) to include sufficient detail of the decision being made in order to allow the affected federally recognized Native American tribe to review the matter and prepare for consultation.
5. Require NAHC to provide a written explanation to the affected federally recognized Native American tribe on how tribal input was incorporated in the final decision.
6. Make a finding as to the need for limiting the public’s right to access the records exempted by this bill from the California Public Records Act.
7. Make other nonsubstantive changes.

ARGUMENTS IN SUPPORT

According to the author, “The California Native American Heritage Commission deals with matters that require confidentiality and expediency. Oftentimes the consultations that are requested are sensitive and need the Heritage Commission’s full attention to provide expediency.”

According to the sponsor, the Rincon Band of Luiseño Indians, “The Commission, established in 1976, is an important nexus between tribes and state government. Amongst other duties, the Commission is empowered to identify known graves and cemeteries of Native Americans on private lands. Due to the sensitivities of these topics, it is critical that closed sessions be allowed when considering certain matters.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

Referral. This bill was referred to this committee first and the Senate Judiciary Committee second. Elements of the bill under that committee’s jurisdiction will be discussed there and are included here for context and completeness only.

California Public Records Act. Since 1968, the Act has granted the public a right to inspect the records and writings of state and local government, unless the records and writings are expressly exempted from disclosure. In 2016, the Legislature asked the California Law Revision Commission to study the Act and recommend legislation that would make the Act more user-friendly without making any substantive changes to its rights and exemptions. The Law Revision Commission published its recommended recodification and reorganization in 2019. AB 473 (Chau, Chapter 614, Statutes of 2021) enacted those recommendations, including a disclosure exemption of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects maintained by, or in the possession of, NAHC, another state agency, or a local agency.

This bill would further shield Native American information by exempting certain genealogical records of tribal members and cultural affiliation records received by NAHC under specified circumstances from the California Public Records Act.

Committee amendments. The Committee may wish to consider nonsubstantive amendments to facilitate understanding of the text. See Amendments.

County Coroner. Under current law, a county coroner is required to notify NAHC by telephone within 24 hours if the coroner determines that discovered human remains are those of a Native American. NAHC then notifies those persons it believes to be most likely descended from the deceased Native American. This bill would require NAHC to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

Previous legislation.

AB 473 (Chau, Chapter 614, Statutes of 2021) enacted recommendations from the California Law Revision Commission relating to the California Public Records Act, including a disclosure exemption of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects maintained by, or in the possession of, the Commission, another state agency, or a local agency.

AMENDMENTS

SECTION 1. Section 7927.000 of the Government Code is amended to read:

7927.000. Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any of the following:

(a) Records of Native American graves, cemeteries, and sacred places.

(b) Records of Native American places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code, which are maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

(c)(1) Genealogical records of tribal members and cultural affiliation records received during a consultation by the Native American Heritage Commission relating to the any of the following:

(A) The inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Native American Heritage Commission,.

(B) Consideration consideration of the persons most likely descended from Native American human remains pursuant to either of the following:

(i) subdivision Subdivision (a) of Section 5097.98 of the Public Resources Code, or.

(ii) A a claim or dispute under Section 8014 or 8016 of the Health and Safety Code.

(2) However, when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the contact list, consideration of the persons most likely descended from Native American human remains pursuant to subdivision (a) of Section 5097.98 of the Public Resources Code, or a claim or dispute under Section 8014 or 8016 of the Health and Safety Code paragraph (1), the Native American Heritage Commission shall give written notice at least 30 days in advance of rendering a decision on those matters to any affected federally recognized Native American tribe and afford the affected federally recognized Native American tribe a meaningful opportunity for tribal consultation between the affected federally recognized Native American tribe and the Native American Heritage Commission. This written notice shall include sufficient detail of the decision being made in order to allow the affected federally recognized Native American tribe to review the matter and prepare for consultation. The Native American Heritage Commission shall provide a written explanation to the affected federally recognized Native American tribe on how tribal input was incorporated in the final decision.

SUPPORT

Rincon Band of Luiseño Indians (sponsor)

California Faculty Association

Yurok Tribe

OPPOSITION

None received

-- END --

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 389

Author:(Ramos) – As Amended Ver:May 1, 2023

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

SUMMARY:

This bill, among other things, exempts from the California Public Records Act (PRA) certain tribal records under specified conditions and exempts from the Bagley-Keene Open Meeting Act (Bagley-Keene) the Native American Heritage Commission (Commission) when the Commission considers certain tribal matters.

Specifically, this bill, among other things:

1. Exempts from the PRA any genealogical records of tribal members and cultural affiliation records received during a consultation by the Commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, as specified, or a claim or dispute under current law.
2. Provides that, under Bagley-Keene, the law does not prevent the Commission from holding closed sessions when considering matters enumerated in 1).
3. Requires the Commission, before holding closed sessions pursuant to 1) and 2), to give written notice to any affected federally recognized tribe and afford the tribe a meaningful opportunity for tribal consultation.
4. Requires, after notice and consultation pursuant to 3), any action taken on agenda items considered in closed session be taken in open session to inform the public of the evidence, findings, and basis of the Commission’s decision, as specified.
5. Requires the Commission to make recommendations to a county coroner on human remains notification and repatriation procedures.
   

FISCAL EFFECT:

Minor and absorbable costs to the Native American Heritage Commission.

COMMENTS:

1) Purpose. According to the author:

The California Native American Heritage Commission deals with matters that require confidentiality and expediency. Oftentimes the consultations that are requested are sensitive and need the Heritage Commission’s full attention to provide expediency. Additionally, this bill would also require the Heritage Commission to make recommendations to a county sheriff or coroner on human remains should they encounter them outside of their normal investigations.

2) Background.

Native American Heritage Commission. The Commission is a nine-member body whose members are appointed by the Governor to identify, catalog, and protect Native American cultural resources. 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, among other powers and duties.

Under current law, a county coroner is required to notify the Commission by phone within 24 hours if the coroner determines that discovered human remains are those of a Native American. The Commission then notifies those persons it believes to be most likely descended from the deceased Native American. This bill would require the Commission to make recommendations to a county coroner on notification and repatriation procedures.

Public Records. Since 1968, the PRA has granted the public a right to inspect the records and writings of state and local government, unless the records and writings are expressly exempted from disclosure. In 2016, the Legislature asked the California Law Revision Commission to study the PRA and recommend legislation that would make the PRA more user-friendly without making any substantive changes to its rights and exemptions. The Law Revision Commission published its recommended recodification and reorganization in 2019. AB 473 (Chau), Chapter 614, Statutes of 2021, enacted those recommendations, including disclosure exemption of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects maintained by, or in the possession of, the Commission, another state agency, or a local agency. This bill expands the PRA exemption to include additional Native American tribal information.

Bagley-Keene Open Meeting Act. Bagley Keene generally requires state entities to publicly notice their meetings, prepare agendas, accept public testimony, and conduct their meetings in public unless specifically authorized to meet in closed session. This bill provides that Bagley-Keene does not prevent the Commission from holding closed sessions when considering specified tribal matters but requires notice and consultation with affected tribes and actions taken in closed session to also be taken in open session to inform the public.

The bill notes that both exemptions are to protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and sensitive and private information of Native American tribal membership of Native American tribes.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION

Miguel Santiago, Chair

ABPCA Bill Id:AB 389 (

Author:Ramos) – As Amended Ver:March 23, 2023

SUBJECT: Public resources: Native American Heritage Commission: tribal contact list: public records: open meetings

SUMMARY: Exempts from the Bagley-Keene Open Meeting Act (Bagley-Keene) the Native American Heritage Commission (Commission) when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, among other matters. Exempts from the California Public Records Act (CPRA) genealogical records of tribal members and cultural affiliation records under specified conditions. This bill would require the Commission to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures. Specifically, this bill:

1) Provides, as an exception to the CPRA, genealogical records of tribal members and cultural affiliation records received during a consultation by the Commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, as defined, or a claim or dispute under current law.

2) Provides that, under Bagley-Keene Act, the law does not prevent the Commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute, as defined. Requires action taken on agenda items considered in closed session to be taken in open session so as to inform the public of the evidence, findings, and basis of the Commission’s decision, consistent with the CPRA.

3) Allows the sheriff, in addition to a coroner of the county, to determine, in the event of discovery or recognition of any human remains in any location other than a dedicated cemetery that the remains are not subject to further investigation of the circumstances before there is further excavation or disturbance of the site.

4) Requires the sheriff to make the determination within two working days from the time the person responsible for the excavation, or an authorized representative, notifies the sheriff or coroner of the discovery or recognition of the human remains.

5) Adds to the Commission’s powers and duties to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

6) Makes technical and clarifying changes.

7) Makes legislative findings relating to the Bagley-Keene and the PRA to demonstrate the interest protected by the limitation and the need for protecting that interest: To protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes, it is necessary that this act limit the public’s access to that information.

EXISTING LAW:

1) Establishes the Commission and empowers the commission to do certain things, including 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. (California Public Resources Code § 5097.91)

2) Establishes the CPRA requiring state and local agencies to make their records available for public inspection, unless an exemption from disclosure applies. (California Government Code § 6250 et seq.)

3) Exempts disclosure of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects that are maintained by, or in the possession of, the Commission, another state agency, or a local agency. (California Government Code § 7297.000)

4) Provides, under the Bagley-Keene Act specified exceptions for authorized closed sessions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body. (California Government Code § 11120)

5) Provides that nothing in Bagley-Keene Act shall be construed to prevent a state body from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or to hear complaints or charges brought against that employee by another person or employee unless the employee requests a public hearing. (California Government Code § 11126 (a) (1))

6) Requires a county coroner to notify the Commission by telephone within 24 hours if the coroner determines that discovered human remains are not subject to their authority and recognizes, or has reason to believe, the remains are those of a Native American, as specified. (California Government Code § 11126)

7) Requires the Commission, whenever it receives notification of a discovery of Native American human remains from a county coroner, to immediately notify those persons it believes to be most likely descended from the deceased Native American. (California Public Resources Code § 5097.9)

8) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

FISCAL EFFECT: This bill is keyed fiscal by Legislative Counsel.

COMMENTS:

Double referral. This bill was heard by the Assembly Committee on Natural Resources on April 17, 2023, and passed that Committee by a vote of 11 to 0.

Purpose of the bill. According to the author, “The California Native American Heritage Commission deals with matters that require confidentiality and expediency. Oftentimes the consultations that are requested are sensitive and need the Commission’s full attention to provide expediency. Additionally, this bill would also require the Commission to make recommendations to a county sheriff or coroner on human remains should they encounter them outside of their normal investigations.”

Background.

Native American Heritage Commission. The Commission is a nine-member body whose members are appointed by the Governor 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, among many other powers and duties. Under current law, a county coroner is required to notify the Commission by telephone within 24 hours if the coroner determines that discovered human remains are those of a Native American. The Commission then notifies those persons it believes to be most likely descended from the deceased Native American.

Bagley-Keene Open Meeting Act. The Bagley Keene Act generally requires state entities to publicly notice their meetings, prepare agendas, accept public testimony, and conduct their meetings in public unless specifically authorized to meet in closed session.

AB 389 provides that Bagley-Keene Act does not prevent the Commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute. The bill would require action taken on agenda items considered in closed session to be taken in open session so as to inform the public of the evidence, findings, and basis of the Commission’s decision, consistent with the CPRA.

The bill finds and declares that the exemption from both the CPRA and Bagley-Keene Act is to protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes.

California Public Records Act. Since 1968, the CPRA has granted the public a right to inspect the records and writings of state and local government, unless the records and writings are expressly exempted from disclosure. In 2016, the Legislature asked the California Law Revision Commission to study the CPRA and recommend legislation that would make the CPRA more user-friendly without making any substantive changes to its rights and exemptions. The Law Revision Commission published its recommended recodification and reorganization in 2019. AB 473 (Chau, Chapter 614, Statutes of 2021) enacted those recommendations, including disclosure exemption of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects maintained by, or in the possession of, the Commission, another state agency, or a local agency.

Among other records relating to the Commission, this bill would exempt from the CPRA genealogical records of tribal members and cultural affiliation records received during a consultation by the Commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission.

In support. The Rincon Band of Luiseño Indians writes, the Commission, established in 1976, is an important nexus between tribes and state government. Amongst other duties, the Commission is empowered to identify known graves and cemeteries of Native Americans on private lands. Due to the sensitivities of these topics, it is critical that closed sessions be allowed when considering certain matters.

Author amendments. The author will present amendments in the committee to accomplish or restate the following in order to maintain the purpose of the bill while providing additional clarification to the intent of the bill:

1) Before holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the contact list, consideration of the persons most likely descended from Native American human remains, the Commission shall give written notice to any affected federally recognized Native American tribe and afford the affected federally recognized Native American tribe a meaningful opportunity for tribal consultation.

2) Remove the responsibility of the county sheriff to notify the Commission. A county coroner is required to do this under existing law.

3) Direct the Commission to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

4) Make a legislative declaration that a closed session is necessary to protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes, it is necessary that this bill limit the public access to that information.

REGISTERED SUPPORT / OPPOSITION:

Support

Rincon Band of Luiseño Indians

Yurok Tribe

Opposition

None on file

Analysis Prepared by: Eric Johnson / G.O. / (916) 319-2531

Date of Hearing: April 17, 2023

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Luz Rivas, Chair

ABPCA Bill Id:AB 389 (

Author:Ramos) – As Amended Ver:March 23, 2023

SUBJECT: Public resources: Native American Heritage Commission: human remains notifications: tribal contact list: public records: open meetings

SUMMARY: Exempts from the California Public Records Act (PRA) genealogical records of tribal members and cultural affiliation records under specified conditions. Exempts from the Bagley-Keene Open Meeting Act (Bagley-Keene) the Native American Heritage Commission (Commission) when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, among other matters. Requires the Commission to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

EXISTING LAW:

1. Establishes the Commission and the powers and duties of the Commission. (Public Resources Code 5097.91)
2. Establishes the PRA requiring state and local agencies to make their records available for public inspection, unless an exemption from disclosure applies. (Government Code (GC) 6250 et seq.)
3. Exempts disclosure of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects that are maintained by, or in the possession of, the Commission, another state agency, or a local agency. (GC 7297.000)
4. Establishes, under Bagley-Keene, the policy of the state that actions of state agencies be taken openly and that their deliberation be conducted openly. (GC 11120)
5. Provides that nothing in Bagley-Keene shall be construed to prevent a state body from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or to hear complaints or charges brought against that employee by another person or employee unless the employee requests a public hearing. (GC 11126 (a) (1))

THIS BILL:

1. Excludes from the PRA any genealogical records of tribal members and cultural affiliation records received during a consultation by the Commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute under current law.
2. Provides that, under Bagley-Keene, the law does not prevent the Commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute. Requires action taken on agenda items considered in closed session to be taken in open session so as to inform the public of the evidence, findings, and basis of the Commission’s decision, consistent with the PRA.
3. Allows the sheriff, in addition to a coroner of the county, to determine, in the event of discovery or recognition of any human remains in any location other than a dedicated cemetery that the remains are not subject to further investigation of the circumstances before there is further excavation or disturbance of the site.
4. Requires the sheriff to make the determination within two working days from the time the person responsible for the excavation, or an authorized representative, notifies the sheriff or coroner of the discovery or recognition of the human remains.
5. Adds to the Commission’s powers and duties to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.
6. Finds and declares that the amendments the bill makes to the PRA impose a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
   1. To protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes, it is necessary that this act limit the public’s access to that information.
7. Finds and declares that the amendments made to Bagley-Keene impose a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:

To protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes, it is necessary that this act limit the public access to that information.

1. Provides that if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

The California Native American Heritage Commission deals with matters that require confidentiality and expediency. Oftentimes the consultations that are requested are sensitive and need the Heritage Commission’s full attention to provide expediency. Additionally, this bill would also require the Heritage Commission to make recommendations to a county sheriff or coroner on human remains should they encounter them outside of their normal investigations.

1. Native American Heritage Commission. The Commission is a nine-member body whose members are appointed by the Governor 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, among many other powers and duties.

Under current law, a county coroner is required to notify the Commission by telephone within 24 hours if the coroner determines that discovered human remains are those of a Native American. The Commission then notifies those persons it believes to be most likely descended from the deceased Native American. AB 389 would also require a county sheriff to notify the Commission when it has determined that discovered human are those of a Native American. Further, the bill would require the Commission to make recommendations to a county sheriff or coroner on human remains notification and repatriation procedures.

1. Public records. Since 1968, the PRA has granted the public a right to inspect the records and writings of state and local government, unless the records and writings are expressly exempted from disclosure. In 2016, the Legislature asked the California Law Revision Commission to study the PRA and recommend legislation that would make the PRA more user-friendly without making any substantive changes to its rights and exemptions. The Law Revision Commission published its recommended recodification and reorganization in 2019. AB 473 (Chau, Chapter 614, Statutes of 2021) enacted those recommendations, including disclosure exemption of records of Native American graves, cemeteries, and sacred places, and records of Native American places, features, and objects maintained by, or in the possession of, the Commission, another state agency, or a local agency.

AB 389 would further shield Native American information and add to PRA exemptions any genealogical records of tribal members and cultural affiliation records received during a consultation by the Commission relating to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute under current law.

1. Bagley-Keene Open Meeting Act. Bagley Keene generally requires state entities to publicly notice their meetings, prepare agendas, accept public testimony, and conduct their meetings in public unless specifically authorized to meet in closed session.

AB 389 provides that Bagley-Keene does not prevent the Commission from holding closed sessions when considering matters related to the inclusion or removal of a Native American tribe, person, or entity on the tribal contact list maintained by the Commission, consideration of the persons most likely descended from Native American human remains, or a claim or dispute. The bill would require action taken on agenda items considered in closed session to be taken in open session so as to inform the public of the evidence, findings, and basis of the Commission’s decision, consistent with the PRA.

The bill finds and declares that the exemption from both the PRA and Bagley-Keene is to protect the sovereignty of tribal nations, the internal workings and sensitive cultural and historical information of Native American tribes, and to protect sensitive and private information of Native American tribal membership of Native American tribes.

1. Double referral. Should this committee approve the bill, it will be referred to the Assembly Governmental Organization Committee, which has jurisdiction over open meetings laws as they affect state government.

REGISTERED SUPPORT / OPPOSITION:

Support

Rincon San Luiseno Band of Indians

Opposition

None on file

Analysis Prepared by: Paige Brokaw / NAT. RES. /