Cal. Health & Safety Code § 8012
State Cultural Affiliation and Repatriation
Redline — January 1, 2011 → current.View current text →
Current — January 1, 2021
As of January 1, 2011
Terms used in this chapter have the same meaning as defined in the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), and as interpreted by federal regulations, except that the following terms have the following meaning:
(a) “Agency” means any division, department, bureau, commission, board, council, city, county, city and county, district, or other political subdivision of the state, but does not include any school district.
(a) “Agency” means a division, department, bureau, commission, board, council, city, county, city and county, district, or other political subdivision of the state.
(b) “Burial site” means, except for cemeteries and graveyards protected under existing state law, any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which human remains were intentionally deposited as a part of the death rites or ceremonies of a culture.
(b) “Burial site” means, except for cemeteries and graveyards protected or recognized under another state law, a natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which human remains were deposited as a part of the death rites or ceremonies of a culture.
(c) “California Indian tribe” means a tribe located in California to which either of the following applies:
(1) It meets the definition of Indian tribe under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(2) It is not recognized by the federal government, but is a Native American tribe located in California that is on the contact list maintained by the Native American Heritage Commission for the purposes of consultation pursuant to Section 65352.3 of the Government Code.
(d) “Commission” means the Native American Heritage Commission established pursuant to Section 5097.91 of the Public Resources Code.
(d) “Cultural items” shall have the same meaning as defined by Section 3001 of Title 25 of the United States Code, except that it shall mean only those items that originated in California.
(e) “Consultation” means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, achieving agreement. Consultation between agencies or museums and California Indian tribes shall be conducted in a manner that is respectful of tribal sovereignty. Consultation also shall recognize the tribes’ potential need for confidentiality with respect to tribal traditional knowledge and all tribal information shared during the consultation.
(f) “Control” means having ownership of Native American human remains and cultural items sufficient to lawfully permit an agency or museum to treat the object as part of its collection for purposes of this chapter, whether or not the human remains and cultural items are in the physical custody of the agency or museum. Human remains and cultural items on loan to an agency or museum from another person, agency, or museum shall be deemed to be in the control of the lender.
(f) “State cultural affiliation” means that there is a relationship of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day California Indian Tribe, as defined in subdivision (i), and an identifiable earlier tribe or group. Cultural affiliation is established when the preponderance of the evidence, based on geography, kinship, biology, archaeology, linguistics, folklore, oral tradition, historical evidence, or other information or expert opinion, reasonably leads to such a conclusion.
(g) “Inventory” means an itemized list that summarizes the collection of human remains and associated funerary objects in the possession or control of an agency or museum. This itemized list may be the inventory list required under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(g) “Cultural items” shall have the same meaning as defined in Section 3001 of Title 25 of the United States Code, as it read on January 1, 2020, except that it shall mean only those items that originated in California and are subject to the definition of reasonable, as defined in subdivision (l). An item is not precluded from being a cultural item solely because of its age.
(h) “Summary” means a document that summarizes the collection of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of an agency or museum. This document may be the summary prepared under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(h) “Inventory” means an itemized list that summarizes the collection of Native American human remains and associated funerary objects in the possession or control of an agency or museum. This itemized list may include the inventory list required under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(i) “Museum” means an entity, including a higher educational institution, excluding school districts, that receives state funds.
(j) “California Indian tribe” means any tribe located in California to which any of the following applies:
(1) It meets the definition of Indian tribe under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(2) It is not recognized by the federal government, but is indigenous to the territory that is now known as the State of California, and both of the following apply:
(A) It is listed in the Bureau of Indian Affairs Branch of Acknowledgement and Research petitioner list pursuant to Section 82.1 of Title 25 of the Federal Code of Regulations.
(B) It is determined by the commission to be a tribe that is eligible to participate in the repatriation process set forth in this chapter. The commission shall publish a document that lists the California tribes meeting these criteria, as well as authorized representatives to act on behalf of the tribe in the consultations required under paragraph (4) of subdivision (a) of Section 8013 and in matters pertaining to repatriation under this chapter. Criteria that shall guide the commission in making the determination of eligibility shall include, but not be limited to, the following:
(i) A continuous identity as an autonomous and separate tribal government.
(ii) Holding itself out as a tribe.
(iii) The tribe as a whole has demonstrated aboriginal ties to the territory now known as the State of California and its members can demonstrate lineal descent from the identifiable earlier groups that inhabited a particular tribal territory.
(iv) Recognition by the Indian community and non-Indian entities as a tribe.
(v) Demonstrated membership criteria.
(i) “Museum” means an agency, museum, person, or entity, including a higher educational institution, that receives state funds. For purposes of this subdivision, “receives states funds” means that the museum has received funds after January 1, 2002, from a state agency through a grant, loan, or contract, other than a procurement contract, or other arrangement by which a state agency makes available aid in the form of funds. State funds provided for any purpose to a larger entity of which the museum is a part of are considered as the museum receiving those funds for the purposes of this subdivision.
(j) “Possession” means having physical custody of Native American human remains and cultural items with a sufficient legal interest to lawfully treat the human remains and cultural items as part of a collection. “Possession” does not include human remains and cultural items over which the agency has control but that are currently on loan to another person or entity.
(k) “Preponderance of the evidence” means that the party’s evidence on a fact indicates that it is more likely than not that the fact is true. Tribal traditional knowledge alone may be sufficient to meet this standard. If there is conflicting evidence, tribal traditional knowledge shall be provided deference.
(l) “Reasonable” means fair, proper, rational, and suitable under the circumstances. Tribal traditional knowledge can and should be used to establish reasonable conclusions with respect to determining cultural affiliation and identifying cultural items.
(m) “State aboriginal territory” means lands identified as aboriginally occupied by one or more California Indian tribes. State aboriginal territory may be recognized by any of the following: consultation with California Indian tribes, treaties, including those agreed to but not ratified, a final judgment of the federal Indian Claims Commission or the United States Court of Claims, an act of the United States Congress, or an executive order.
(n) “State cultural affiliation” means that there is a reasonable relationship of shared group identity that can reasonably be traced historically or precontact between members of a present-day California Indian tribe and an identifiable earlier tribe or group. Cultural affiliation shall be established based on one or more of the following:
(1) Geography.
(2) Kinship.
(3) Biology.
(4) Archaeology.
(5) Linguistics.
(6) Folklore.
(7) Oral tradition.
(8) Historical evidence.
(9) Tribal traditional knowledge.
(10) Other information or expert opinion that reasonably leads to that conclusion.
(o) “Summary” means a document that summarizes the collection of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of an agency or museum. This document may include the summary prepared under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(p) “Tribal traditional knowledge” means knowledge systems embedded and often safeguarded in the traditional culture of California Indian tribes and lineal descendants, including, but not limited to, knowledge about ancestral territories, cultural affiliation, traditional cultural properties and landscapes, culturescapes, traditional ceremonial and funerary practices, lifeways, customs and traditions, climate, material culture, and subsistence. Tribal traditional knowledge is expert opinion.
Official source: California Legislative Information. Reproduced from public-domain California statutes; confirm against the official source for the current text. Not legal advice.