2005 California Public Resources Code Sections 5097.9-5097.991 SACRED SITES

5097.9.  No public agency, and no private party using or occupying
public property, or operating on public property, under a public
license, permit, grant, lease, or contract made on or after July 1,
1977, shall in any manner whatsoever interfere with the free
expression or exercise of Native American religion as provided in the
United States Constitution and the California Constitution; nor
shall any such agency or party cause severe or irreparable damage to
any Native American sanctified cemetery, place of worship, religious
or ceremonial site, or sacred shrine located on public property,
except on a clear and convincing showing that the public interest and
necessity so require.  The provisions of this chapter shall be
enforced by the commission, pursuant to Sections 5097.94 and 5097.97.
   The provisions of this chapter shall not be construed to limit the
requirements of the Environmental Quality Act of 1970, Division 13
(commencing with Section 21000).
   The public property of all cities, counties, and city and county
located within the limits of the city, county, and city and county,
except for all parklands in excess of 100 acres, shall be exempt from
the provisions of this chapter.  Nothing in this section shall,
however, nullify protections for Indian cemeteries under other
statutes.
5097.91.  There is in state government a Native American Heritage
Commission, consisting of nine members appointed by the Governor with
the advice and consent of the Senate.
5097.92.  At least five of the nine members shall be elders,
traditional people, or spiritual leaders of California Native
American tribes, nominated by Native American organizations, tribes,
or groups within the state.  The executive secretary of the
commission shall be appointed by the Governor.
5097.93.  The members of the commission shall serve without
compensation but shall be reimbursed their actual and necessary
expenses.
5097.94.  The commission shall have the following powers and duties:
   (a) 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.  The identification and
cataloguing of known graves and cemeteries shall be completed on or
before January 1, 1984.  The commission shall notify landowners on
whose property such graves and cemeteries are determined to exist,
and shall identify the Native American group most likely descended
from those Native Americans who may be interred on the property.
   (b) To 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.
   (c) To make recommendations to the Legislature relative to
procedures which 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.
   (d) To appoint necessary clerical staff.
   (e) To accept grants or donations, real or in kind, to carry out
the purposes of this chapter.
   (f) To make recommendations to the Director of Parks and
Recreation and the California Arts Council relative to the California
State Indian Museum and other Indian matters touched upon by
department programs.
   (g) To bring an action to prevent severe and irreparable damage
to, or assure  appropriate access for Native Americans to, a Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property,
pursuant to Section 5097.97.  If the court finds that severe and
irreparable damage will occur or that appropriate access will be
denied, and appropriate mitigation measures are not available, it
shall issue an injunction, unless it finds, on clear and convincing
evidence, that the public interest and necessity require otherwise.
The Attorney General shall represent the commission and the state in
litigation concerning affairs of the commission, unless the Attorney
General has determined to represent the agency against whom the
commission's action is directed, in which case the commission shall
be authorized to employ other counsel. In any action to enforce the
provisions of this subdivision the commission shall introduce
evidence showing that such cemetery, place, site, or shrine has been
historically regarded as a sacred or sanctified place by Native
American people and represents a place of unique historical and
cultural significance to an Indian tribe or community.
   (h) To request and utilize the advice and service of all federal,
state, local, and regional agencies.
   (i) To assist Native Americans in obtaining appropriate access to
sacred places that are located on public lands for ceremonial or
spiritual activities.
   (j) To assist state agencies in any negotiations with agencies of
the federal government for the protection of Native American sacred
places that are located on federal lands.
   (k) To mediate, upon application of either of the parties,
disputes arising between landowners and known descendents relating to
the treatment and disposition of Native American human burials,
skeletal remains, and items associated with Native American burials.
   The agreements shall provide protection to Native American human
burials and skeletal remains from vandalism and inadvertent
destruction and provide for sensitive treatment and disposition of
Native American burials, skeletal remains, and associated grave goods
consistent with the planned use of, or the approved project on, the
land.
   (l) To assist interested landowners in developing agreements with
appropriate Native American groups for treating or disposing, with
appropriate dignity, of the human remains and any items associated
with Native American burials.
5097.95.  Each state and local agency shall cooperate with the
commission in carrying out its duties under this chapter.  Such
cooperation shall include, but is not limited to, transmitting
copies, at the commission's expense, of appropriate sections of all
environmental impact reports relating to property identified by the
commission as of special religious significance to Native Americans
or which is reasonably foreseeable as such property.
5097.96.  The commission may prepare an inventory of Native American
sacred places that are located on public lands and shall review the
current administrative and statutory protections accorded to such
places.  The commission shall submit a report to the Legislature no
later than January 1, 1979, in which the commission shall report its
findings as a result of these efforts and shall recommend such
actions as the commission deems necessary to preserve these sacred
places and to protect the free exercise of the Native American
religions.
5097.97.  In the event that any Native American organization, tribe,
group, or individual advises the commission that a proposed action
by a public agency may cause severe or irreparable damage to a Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property, or may
bar appropriate access thereto by Native Americans, the commission
shall conduct an investigation as to the effect of the proposed
action.  Where the commission finds, after a public hearing, that the
proposed action would result in such damage or interference, the
commission may recommend mitigation measures for consideration by the
public agency proposing to take such action.  If the public agency
fails to accept the mitigation measures, and if the commission finds
that the proposed action would do severe and irreparable damage to a
Native American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property, the
commission may ask the Attorney General to take appropriate legal
action pursuant to subdivision (g) of Section 5097.94.
5097.98.  (a) Whenever the commission receives notification of a
discovery of Native American human remains from a county coroner
pursuant to subdivision (c) of Section 7050.5 of the Health and
Safety Code, it shall immediately notify those persons it believes to
be most likely descended from the deceased Native American.  The
decendents may, with the permission of the owner of the land, or his
or her authorized representative, inspect the site of the discovery
of the Native American remains and may recommend to the owner or the
person responsible for the excavation work means for treating or
disposing, with appropriate dignity, the human remains and any
associated grave goods.  The descendents shall complete their
inspection and make their recommendation within 24 hours of their
notification by the Native American Heritage Commission.  The
recommendation may include the scientific removal and nondestructive
analysis of human remains and items associated with Native American
burials.
   (b) Whenever the commission is unable to identify a descendent, or
the descendent identified fails to make a recommendation, or the
landowner or his or her authorized representative rejects the
recommendation of the descendent and the mediation provided for in
subdivision (k) of Section 5097.94 fails to provide measures
acceptable to the landowner, the landowner or his or her authorized
representative shall reinter the human remains and items associated
with Native American burials with appropriate dignity on the property
in a location not subject to further subsurface disturbance.
   (c) Notwithstanding the provisions of Section 5097.9, the
provisions of this section, including those actions taken by the
landowner or his or her authorized representative to implement this
section and any action taken to implement an agreement developed
pursuant to subdivision (l) of Section 5097.94, shall be exempt from
the requirements of the California Environmental Quality Act
(Division 13 (commencing with Section 21000)).
   (d) Notwithstanding the provisions of Section 30244, the
provisions of this section, including those actions taken by the
landowner or his or her authorized representative to implement this
section, and any action taken to implement an agreement developed
pursuant to subdivision (l) of Section 5097.94 shall be exempt from
the requirements of the California Coastal Act of 1976 (Division 20
(commencing with Section 30000)).
5097.99.  (a) No person shall obtain or possess any Native American
artifacts or human remains which are taken from a Native American
grave or cairn on or after January 1, 1984, except as otherwise
provided by law or in accordance with an agreement reached pursuant
to subdivision (l) of Section 5097.94 or pursuant to Section 5097.98.
   (b) Any person who knowingly or willfully obtains or possesses any
Native American artifacts or human remains which are taken from a
Native American grave or cairn after January 1, 1988, except as
otherwise provided by law or in accordance with an agreement reached
pursuant to subdivision (l) of Section 5097.94 or pursuant to Section
5097.98, is guilty of a felony which is punishable by imprisonment
in the state prison.
   (c) Any person who removes, without authority of law, any Native
American artifacts or human remains from a Native American grave or
cairn with an intent to sell or dissect or with malice or wantonness
is guilty of a felony which is punishable by imprisonment in the
state  prison.
5097.991.  It is the policy of the state that Native American
remains and associated grave artifacts shall be repatriated.