By Rob Hofmann

Cultural artifacts and Native American remains receive different levels of protection under state and federal law. The federal Native American Graves Protection and Repatriation Act (“NAGPRA”) (25 U.S.C. § 3001 et seq.) delineates the process for the return of Native American remains and specified cultural artifacts in the control or possession of most federally funded museums and agencies to direct descendants or affiliated tribes. NAGPRA also provides processes for handling future discoveries of remains and artifacts on federal or tribal land and imposes penalties for noncompliance and illegal trafficking. NAGPRA requires that these museums and agencies prepare inventories and summaries of all protected items in their control or possession and consult with the applicable descendants and tribes for possible repatriation or disposition. With limited exceptions, NAGPRA applies only to tribes recognized by the Bureau of Indian Affairs and recognized Native Alaskan and Hawaiian groups.

Building upon the federal model, the California Native American Grave Protection and Repatriation Act (“CNGPRA”) (Cal. Health & Safety Code § 8010 et seq.) regulates a larger variety of cultural artifacts than those protected under NAGPRA, and CNGPRA also empowers a greater number of potential claimants. Specifically, CNGPRA (1) requires most state funded museums and agencies in control or possession of Native American remains or cultural artifacts to inventory and report a broader variety of California Native American cultural artifacts, (2) provides a more comprehensive identification and tribe-specific repatriation process (including the recognition of groups not recognized as tribes under federal law), (3) authorizes the imposition of civil penalties for failure to comply with CNGPRA requirements, and (4) establishes the Repatriation Oversight Commission to assist with the repatriation and disposition processes.

Effective January 1, 2007, the California legislature has provided a further level of protection when California Native American remains are discovered: Assembly Bill Number 2641 (Coto) (Ch. 863, Stats. 2006; Cal. Pub. Resources Code §§ 5097.91 and 5097.98).

AB 2641 seeks to (1) encourage landowners to consider preservation or avoidance of California Native American human remains in place, whenever feasible, (2) encourage culturally sensitive treatment of California Native American human remains when preservation is not feasible, and (3) encourage meaningful discussions and communication between the most likely descendants and landowners so that the remains can be identified and considered during development.

To this end, AB 2641 provides a 48-hour window, measured from the granting of access, for descendants to make recommendations for the treatment of remains, effectively triggering a meet-and-confer process. AB 2641 imposes an affirmative duty on landowners to ensure the immediate vicinity surrounding a discovery of California Native American human remains is not damaged or disturbed (in accordance with generally accepted cultural or archaeological standards or practices). In instances where multiple remains are discovered, AB 2641 authorizes the parties involved to extend otherwise applicable time frames to coordinate repatriation or disposition of human remains and associated cultural artifacts. The bill also provides for remains to be re-interred, with appropriate dignity by the property owner, if descendants cannot be identified, or upon the failure of descendants to make a treatment or disposition recommendation, or the rejection of the recommendation by the landowner. The landowner must select a location which is not subject to future subsurface disturbance.

Rob Hofmann is an associate with Abbott & Kindermann, LLP.   For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.