Cal. HSC § 8012 — California Code / Code hsc / Division 7 / Part 2 / Chapter 5 / Article 2 / Section 8012
Section 8012
Status: in_force

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 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 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.

(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.

(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) “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 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.