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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:

 OPINION : No. 87-1206 

:

 JOHN K. VAN DE KAMP : APRIL 12, 1988

 Attorney General :

 :

 RONALD M. WEISKOPF :

 Deputy Attorney General : 

: 

THE NATIVE AMERICAN HERITAGE COMMISSION, has requested an opinion 

on the following question: 

Does the Native American Heritage Commission have authority to receive grants or 

donations of money, services, personal property or real property? 

CONCLUSION 

The Native American Heritage Commission has authority to receive grants or 

donations of money, services, personal property and real property, subject to the following: (1) any 

grant or donation of personal or real property, and any conditional gift of money, must receive prior 

approval of the Director of Finance; and (2) any donation of services must not displace those that 

are ordinarily performed by Commission staff within the Civil Service System. 

ANALYSIS 

In 1976 the Legislature established the Native American Heritage Commission to 

provide a single governmental entity with powers to identify and catalogue places of cultural 

significance to Native Americans and to protect the integrity and sanctity of Native American burial 

sites, skeletal remains, and grave artifacts found on public property. (Stats. 1976, ch. 1332, p. 6028, 

§ 2, adding a new Chapter 1.75 [§ 5097.9, et seq.] to Div. 5 of the Pub. Resources Code.) In 1982 

the Legislature augmented the Commission's powers to enable it to provide protection to Native 

American burial sites on private lands and resolve disputes regarding them. (Stats. 1982, ch. 1492, 

p. 5781, § 4, adding inter alia, § 5097.98 to the Pub. Resources Code.) 
We learn from the Legislative Counsel's Digest to the bill which enacted the original 

legislation that its purpose was: (1) to create and empower a governmental entity to be responsible 

for identifying and cataloging places of cultural significance to Native Americans; (2) to prevent 

public agencies and private parties using, occupying, or operating on public property from causing 

severe and irreparable damage to designated types of sacred sites; and (3) to assure appropriate 

access by Native Americans to such sites. (See, Legis. Counsel's Dig. to AB 4239, 4 Stats. 1976, 

Summary Dig., p. 377; cf., People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434; People 

v. Ashton (1985) 39 Cal.3d 481, 492; California Teachers' Assn. v. Governing Board (1983) 141 

Cal.App.3d 606, 613.) 

The purpose for the 1982 amendment is expressed in the legislation itself. (Cf., 

Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 256; The Housing Authority v. 

Dockweiler (1939) 14 Cal.2d 437, 449.) There the Legislature found that Native American human 

burials and skeletal remains had been subject to vandalism and inadvertent destruction at an 

increasing rate and that state laws did not adequately provide for their protection. (Stats. 1982, ch. 

1492, p. 5777, § 1, subd.(a).) Accordingly the Legislature declared that the purpose of the act was 

to provide such protection for the burials and remains from vandalism and inadvertent destruction, 

as well as a means by which Native American descendants could make their concerns regarding 

them known. (Id. § (1), subd. (b).) In addition, the Legislative Counsel's Digest discloses that a 

purpose for the amendment was to empower the Commission to identify and catalog known graves 

and cemeteries of Native Americans on private lands and to authorize it to resolve disputes relating 

to the treatment and disposition of Native American human burials, skeletal remains, and associated 

grave objects that were found there. (See Legis. Counsel's Dig. to SB 297, 8 Stats. 1982, Summary 

Dig., p. 551.) 

To achieve these purposes, the Commission has been given the following powers and 

duties: (1) identifying and cataloguing places of special religious or social significance to California 

Native Americans; (2) assisting Native Americans to make known their concerns regarding the 

treatment of Indian graves and cemeteries; (3) identifying Native American burial sites on private 

property and, upon the discovery of remains, notifying the most likely descendants so they might 

recommend treatment and disposition of them and of the grave goods; (4) mediating disputes 

regarding the latter between the landowner(s) and the Native American(s) involved; (5) assisting 

landowners and Native American Groups to develop agreements relating to the disposition of graves 

and artifacts; (6) making recommendations for the purchase by the state or public agencies of sacred 

sites on private lands in order to facilitate or assure access thereto by Native Americans; (7) taking 

action to preserve, protect and ensure access by Native Americans to sacred sites on public property; 

(8) assisting state agencies in negotiations with the federal government for the protection of sacred 

places on federal lands; (9) requesting and utilizing the advice and services of federal, state, regional 

and local agencies; and (10) working with the Department of Parks and Recreation, the California 

Arts Council and other governmental agencies on Indian matters. (§§ 5097.94, 5097.95, 5097.96, 

5097.97, 5097.98.) And, among its specific powers is one-­

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"[t]o accept grants or donations, real or in kind, to carry out the purposes of 

[the Native American Historical, Cultural and Sacred Sites law]." (§ 5097.94, subd. 

(e).) 

We are asked whether the Commission has authority to receive grants or donations 

of money, services, personal property or real property. We conclude that it does. 

In analyzing the just-quoted grant of authority contained in subdivision (e) of section 

5097.94 we may apply several principles of statutory construction. The primary rule of course is 

to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Friends of 

Mammoth v. Board of Supervisors, supra, 8 Cal.3d at 256; Great Lakes Properties, Inc. v. City of 

El Segundo (1977) 19 Cal.3d 152, 163; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 

640, 645.) That is done at the outset by examining the words of the statute themselves. (People v. 

Craft (1986) 41 Cal.3d 554, 560; People v. Belleci (1979) 24 Cal.3d 879, 884; People v. Knowles 

(1950) 35 Cal.2d 175, 182.) The words in question must then be construed with the nature and 

purpose of the statute in mind. (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 

594, 608; Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 604.) Particularly as here, 

where a statute is intended to correct an undesirable situation, that object must be considered and 

the words of the statute read and liberally construed to give it effect. (People v. Ventura Refining 

Co. (1928) 204 Cal. 286, 291; County of San Diego v. Milotz (1953) 119 Cal.App.2d Supp. 871, 

881.) 

The authority granted the Commission is to accept "grants or donations, real or in 

kind." The word "grant" means to bestow or confer something, for or without consideration, upon 

some other person or entity, and it can refer both to land or to money. (Black's Law Dict. (5th ed. 

1979) at p. 629.) Here it would mean that the Commission could receive grants of money from 

governmental agencies or private institutions and parties, as well as conveyances of land from them. 

The term "donation" is synonymous with "gift" and means the act by which the owner of property 

voluntarily transfers the title and possession of it from himself to another without any consideration. 

(Black's Law Dict., supra, at p. 437; Ballentine's Law Dict. (3rd. ed. 1969) at p. 371.) "Donation" 

though, is a word that in ordinary usage applies to services as well as to property. To construe it to 

include both would further the purposes of the Native American Historical, Cultural and Sacred Sites 

law. 

The phrase "real or in kind" explains the types of "grants or donations" the 

Commission may accept. (Cf., People v. Corey (1978) 21 Cal.3d 738, 742; Addison v. Dept. of 

Motor Vehicles (1977) 69 Cal.App.3d 486, 496.) The word "real" is sometimes thought of as 

relating to land (Black's Law Dict., supra, at p. 1137; cf., Ballentine's Law Dict., supra, at p. 1058), 

but in common parlance it also means "actual". (Webster's Third New Intn'l. Dict. (1971 ed.) at p. 

1890.) The term "in kind" means something of the same species or category as another; something 

that is not necessarily identical, but is equivalent to it. (Black's Law Dict., supra, at p. 707.) As 

juxtaposed in subdivision (e), the terms "real" and "in kind" are construed to mean "actual" or 

"equivalent." 

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We therefore find that the grant of authority for the Commission to receive "grants 

or donations, real or in kind" (§ 5097.94, subd. (e)), is sufficiently accommodating to permit the 

Commission to accept unconditional gifts of, or conditional grants of, land, personal property, 

money, or services, to further the above-mentioned purposes for which it was established. 

We can see how such grants or donations can help the Commission accomplish those 

purposes. A grant or donation to the Commission of land that encompasses a burial or sacred site 

can help it preserve its sanctity and integrity; a grant or donation of a right of way to such a site can 

ensure access by Native Americans to it. A grant or donation of personal property to the 

Commission, such as lawfully possessed grave artifacts, can help protect their condition and permit 

the Commission to treat them appropriately. (Cf., §§ 5097.94, subds. (k),(l), 5097.98, 5097.99.) A 

grant or donation of money can help the Commission augment its limited budget.1 The volunteered 

services of private individuals, received as a "donation in kind" instead of money, can help the 

Commission achieve the same ends. In other words, just as money can be accepted to accomplish 

the purposes for which the Commission was created, as for example to preserve a particular burial 

ground, or to clear access thereto, or to examine and catalogue its contents, the services of private 

parties can be accepted to accomplish those ends directly. 

There are however, certain qualifications on the Commission's ability to accept 

property, money, and services. Inasmuch as the considerations attending that ability differ with 

respect to each, we will discuss each in turn. 

1. Commission Acceptance of Real or Personal Property 

As just shown, the specific power granted the Commission "[t]o accept grants or 

donations, real or in kind, to carry out the purposes of the Native American Historical, Cultural and 

Sacred Sites law" (§ 5097.94, subd. (e)) is sufficient to authorize it to accept gifts or grants of 

property. 

However, certain sections of the Government Code-- i.e., §§ 11005, 11005.1--set 

forth specific rules governing the acceptance by a state agency of such grants or donations. 

Essentially, they permit a state agency to receive them if such is approved by the Director of 

Finance.

 Section 11005 is general and deals with gifts to state agencies of personal and real 

property. It provides that 

"[u]nless the Legislature specifically provides that such approval is not 

required, every gift to the State of personal property or every gift to the State of real 

1

The Native American Heritage Commission is a general fund agency. Its current budget is 

for $307,000.00 (Governor's Budget (1988-1989 Fiscal Year) at p. GG 28.) 

4. 87-1206
 
 

property in fee or in any lesser estate or interest shall be approved by the Director of 

Finance. . . ." 

The section is made applicable "to any state agency which by general or specific statute is expressly 

or impliedly authorized to enter into [such] transactions. . . ." (§ 11005.)2 

Section 11005.1 also deals with acceptance of gifts of real or personal property. It 

provides that 

"[t]he Director of Finance may accept on behalf of the State any gift of real 

or personal property whenever he deems such gift and the terms and conditions 

thereof to be in the best interest of the State." 

The Native American Heritage Commission would be subject to the terms of these 

Government Code sections: (a) As a "commission" within state government (Pub. Resources Code, 

§ 5097.81), the Native American Heritage Commission is a "state agency" (cf., Gov. Code, § 

11000); (b) as we have shown, it is one which by specific statute has been expressly, or at least 

impliedly, authorized to receive gifts of personal or real property (Pub. Resources Code, § 5097.94, 

subd. (e)); and (c) there is nothing in its act of creation by which the Legislature has specifically 

provided that the approval of the Director of Finance is not required before it does so.

 Subdivision (e) of section 5097.94 would not provide such authority. In a similar 

situation presented in 32 Ops.Cal.Atty.Gen. 18 (1958), we rejected the notion that a grant of 

authority as is found therein for an agency to accept grants or donations, is a special statute which 

overrides the general approval requirements of section 11005. (Id. at 21.) We said that there was 

no conflict between the two statutes and "hence no occasion to argue that [one] prevails over the 

[other]". (Id. at 22.) In fact we said, 

2

Section 11005 provides in pertinent part as follows:

 "Unless the Legislature specifically provides that such approval is not 

required, every gift or dedication to the State of personal property or every gift to 

the State of real property in fee or in any lesser estate or interest shall be approved 

by the Director of Finance and every contract for the acquisition or hiring of real 

property in fee or in any lesser estate or interest, entered into by or on behalf of 

the State, shall be approved by the Director of General Services. Any contract 

entered into in violation of this section is void. This section applies to any state 

agency which by general or specific statute is expressly or impliedly authorized to 

enter into transactions referred to herein. This section does not apply (1) to 

unconditional gifts of money . . . ." (Gov. Code, § 11005.) 

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"We have here but another instance where a special, nonconflicting statute 

for the accomplishment of a particular state function is to be applied with, and not 

to the exclusion of, a general statute investing the Director . . . of Finance with 

approval powers [citations]." (Ibid.) 

Whereupon we conclude that the Native American Heritage Commission does have 

authority to receive donations of real or personal property, but that the receipt of such is subject to 

the approval of the Director of Finance. (Accord, Ibid.; 4 Ops.Cal.Atty.Gen. 111, 112 (1944); 2 

Ops.Cal.Atty.Gen. 203, 204 (1943); Cal.Atty.Gen., Indexed Letter, No. IL 75-248 (November 10, 

1975) at p. 5.) 

2. Commission Acceptance of Money 

We have seen how the authority of the Commission to accept "grants or donations, 

real or in kind" authorizes it to receive grants or donations of money. However, just as section 

11005 of the Government Code sets forth certain specific rules governing the acceptance by a state 

agency of donations of property, section 16302 of that Code sets forth certain rules dealing with the 

acceptance of donations of money. It provides that whenever any person donates money to the state, 

(a) the Treasurer is to receive it upon the receipt of a certificate from the Controller (cf., Gov. Code, 

§§ 12321, 12414; 18 Ops.Cal.Atty.Gen. 135, 137 (1951)); (b) that a donor may specify a particular 

fund to benefit from the donation; and (c) that the acceptance of such donations are subject to the 

provisions of section 11005.3

 Since section 11005 requires approval of the Director of Finance for 

a gift of personal property to be made to the state, but also states that it does not apply to 

"unconditional gifts of money", the Commission's acceptance of gifts of money would be subject 

to the approval of the Director of Finance, only insofar as conditional gifts of money are involved. 

We do not believe that when a person designates a particular fund to benefit from a 

donation of money to the state, that it makes the gift of money "conditional" within the meaning of 

section 11005. That section's requirement for prior approval by the Director of Finance before a 

state agency can receive credit for conditional gifts of money was designed to ensure that the gift 

would be proper from the state's point of view. (IL 75-248, supra, at p. 6; cf., § 11005.1, supra.) 

While a donor's specifying exactly how his or her gift of money is to be used by a state agency might 

3

Section 16302 provides in full as follows:

 "Whenever any person donates any money to the State, the Treasurer shall 

receive it, upon the receipt of a certificate from the Controller. If the donor, at the 

time of making the donation, files with the Controller a written designation of the 

fund or appropriation he desires to benefit thereby, his donation shall be credited 

accordingly. If such a designation is not made, the donation shall be credited to 

the State School Fund. [¶] The acceptance of any such donation shall be subject 

to the provisions of Section 11005 of this code." 

6. 87-1206
 
 

 

warrant prior review by the Director of Finance to see if the terms and conditions are in the best 

interest of the state, a donor's merely designating the fund to be credited with the donation would 

not. The actual use of the money would be unrestricted, i.e., "unconditional", and other than the 

designation of the fund, there would be no terms and conditions to review for their propriety. 

Whereupon we conclude that subject to the approval of the Director of Finance, the 

Native American Heritage Commission has authority to have its account in the State Treasury 

appropriately credited by the Treasurer for donations of conditional gifts of money that have been 

specifically earmarked for it. (Accord, 32 Ops.Cal.Atty.Gen., supra, at 22; 4 Ops.Cal.Atty.Gen., 

supra, at 112; 2 Ops.Cal.Atty.Gen., supra, at 204; IL 75-248, supra, at p. 5.) However, since 

approval of the Director of Finance is not required where unconditional gifts of money are 

concerned, and since the mere designation of the Commission's fund by a donor as the one to be 

credited with his or her donation does not make it "an unconditional gift of money", we conclude 

that the Commission may properly have its account credited with such donations without the 

Director's prior approval of them. They would be received pursuant to section 16320, simply 

through the Treasurer's acceptance of the Controller's certificate for receipt of the money, and the 

Treasurer's crediting the Commission's account in the State Treasury. (IL 75-248, supra, at p. 6.) 

3. Commission Acceptance of Services 

The question of the Commission accepting "services" is governed by different 

considerations from the ones governing its accepting grants or donations of money or property. 

Indeed, the Government Code sections governing donations of the latter do not address the receipt 

by the state of donated services. 

In 1978, though, the Legislature adopted the California State Government Volunteers 

Act to encourage citizen initiative and volunteer action to assist state government. (Stats. 1978, ch. 

1195, § 1, p. 3848; Gov. Code, tit. 1, div 4, ch 8.5, § 3110 et seq.)4 The Act specifically 

contemplates that persons, of their own free will, might provide goods or services to state agencies, 

without any financial gain to themselves. (Gov. Code, § 3111, subd. (a).) 

In the situation presented we have seen how the Native American Heritage 

Commission has been granted express authority "to accept grants or donations, real or in kind, to 

carry out the purposes of [the Native American Historical, Cultural and Sacred Sites Law]" (§ 

5097.94, subd. (e)), and how that authority sufficiently accommodates the power of the Commission 

4

The California State Government Volunteers Act contained a "sunset" provision, 

automatically repealing it on December 31, 1981, unless a later enacted statute, chaptered before 

January 1, 1982, deleted or extended that date. (Former Gov. Code, § 3112.5.) In 1981, the 

Legislature deleted the automatic sunset provision (Stats. 1981, ch. 405, § 1, p. 1593) and thus 

"extend[ed] the provisions of that act permanently." (Legis. Counsel's Dig. to SB 473, 4 Stats. 

1981, Summary Dig., p. 108.) 

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to accept a donation of volunteered services. Indeed, in the California State Government Volunteers 

Act, the Legislature has generally sought to foster the spirit of volunteerism of private persons in 

state government. (Stats. 1978, ch. 1195, supra.) Accordingly we have concluded that where private 

individuals with particular expertise and wherewithal are willing to donate their services to help the 

Commission accomplish the purposes of the Native American Historical, Cultural and Sacred Sites 

law, the Commission has statutory authority to accept them. 

But, a caveat is in order. When the Legislature adopted the California State 

Government Volunteers Act it made it clear that it was not its intent 

". . . that volunteers replace or supplant public employees, where such 

employees are providing services deemed necessary for the government to perform, 

but that they add new dimension to providing of governmental services." (Id. § 

3112, subd. (g).) 

The Commission is established as a state agency and its staff are state Civil Service personnel. (Cal. 

Const., art VII, § 1(a); Gov. Code, § 18526.) It's acceptance of volunteered services would be 

subject to the condition set forth in the California State Government Volunteers Act, that such 

services do not replace or supplant public employees' providing services deemed necessary for the 

goverment to perform, but rather that they add new dimension to the provision of governmental 

services. (Cf., Govt. Code, § 3112, subd. (g); see also, California State Employees' Assn. v. 

Williams (1970) 7 Cal.App.3d 390, 395-397; Burum v. State Compensation Ins. Fund (1947) 30 

Cal.2d 575, 580; Stockburger v. Riley (1937) 21 Cal.App.2d 165, 135; and Kennedy v. Ross (1946) 

28 Cal.2d 569, 573.) 

We think this means that volunteered services should supplement services that the 

Commission and its staff are able to provide and are providing, and that they should only be 

accepted if they would not otherwise be performed. Thus if the Commission does not have a civil 

servant on its payroll to provide a certain service or undertake a certain activity, or if it otherwise 

lacks sufficient funds within its budget to do so, it may accept the services of volunteers to perform 

the task. But to permit the Commission to accept a gift of staff whose tasks should be performed 

by civil service employees would run counter to the Legislature's intention with respect to the types 

of services volunteers should be performing. It would also run counter to a major purpose for article 

VII of the State Constitution which was to prevent displacement of the state Civil Service System. 

(Cf., IL 75-248, supra, at p. 11, citing California State Employees' Assn. v. Williams, supra, at 400.) 

We therefore conclude that the Commission may accept the volunteered services of 

private individuals to help accomplish its purposes as long as they do not displace those services that 

ordinarily would be performed by Commission staff. 

* * * * * 

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