Lay of the Land
California’s Native American Heritage Commission has issued its initial approval of draft regulations that, if finally approved, will guide the treatment and disposition of Native American human remains and associated burial items in connection with development projects and other ground-breaking activities in California. 
The Draft Regulations. The overarching goal of the regulations is to protect Native American burial sites and remains that may be disturbed as a result of development. The main thrust of the regulations is to address certain problems associated with the “Most Likely Descendants” (MLDs) process and the treatment and disposition of Native American human remains. These problems include, for example, identifying the appropriate MLD for the treatment and disposition of human remains and confidentiality during the process of conferring with landowners regarding that treatment and disposition.
From the perspective of developers and landowners, the regulations appear broad in scope. They apply to any “project,” which encompasses not only “projects” as defined under the California Environmental Quality Act, but also “any ground-disturbing activity that results in the inadvertent discovery of Native American human remains.”
Key elements of the regulations include (1) implementation of specific timing and procedural requirements for identifying tribes or consortia of tribes as MLDs upon discovery of Native American human remains in any “project”; (2) the creation of rules and guidelines for required conferrals (including an optional mediation process) between landowners and MLDs; and (3) the establishment of a Code of Ethics for MLDs and their authorized representatives to follow in the context of the treatment and disposition process. The regulations also clarify the confidential nature of decisions and agreements surrounding treatment and disposition of Native American human remains and limit the types of related information available to the public.
Next Steps in the Process. The Commission’s recent approval is not the final step for the regulations. Instead, this approval serves to initiate the formal rulemaking process for potential future adoption and publication.
Pursuant to the Commission’s approved timeline, the first public comment period is expected to commence on April 13, 2017, and end on June 26, 2017. A public hearing is tentatively set for July 21, 2017. If timely approved and adopted, the regulations will take effect in early 2018.
Key dates in the Commission’s current schedule for the rulemaking process are as follows:
- February 3, 2017: Commission Staff submits proposed rulemaking package and draft proposed regulations to the California Department of Finance for review of fiscal impact.
- April 3, 2017: Commission Staff submits required rulemaking documents to the California Office of Administrative Law (“OAL”) for publication.
- April 13, 2017: OAL publishes Notice of Proposed Action, which begins the formal process of adopting the regulations and the period for public comment and tribal consultation.
- June 26, 2017: Public comment period ends.
- July 21, 2017: Public hearing.
- August 11, 2017: Publication of substantial changes to the proposed regulations, which commences another public comment period of 28 days.
- September 8, 2017: Public comment and tribal consultation periods end.
- October 20, 2017: Potential date of Commission adoption (if adopted, the regulations will be submitted to the OAL for final review and submitted to the California Secretary of State, with an effective date likely to take place in early 2018).
The proposed draft regulations presented at the Commission’s January 20 meeting are available here: Most Likely Descendants Regulations