Citation. 128 Cal. App. 3d 536, 180 Cal. Rptr. 423, 1982 Cal. App.
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Brief Fact Summary.
American Indian remains were found at a site that was intended for a subdivision.
Synopsis of Rule of Law.
American Indian burial grounds do not qualify as a cemetery entitled to protection from disinterment.
Community Construction, Inc. (Defendant) excavated property that was intended for a subdivision and uncovered human remains. The development of the property continued and Defendant uncovered the remains of over 200 human beings. The site still contains the remains of six or more persons. The burial ground had been used by the Miwok Indians and has been the subject of numerous archeological studies. Wana the Bear (Plaintiff), a direct descendant, brought suit to enjoin the further excavation and other desecration of the property.
Does the Indian burial ground achieve a protectable status as a public cemetery by virtue of its prior status as a public graveyard?
Plaintiff refers to a code, which prohibits the disinterment of human remains without authority. A cemetery is defined as six or more human bodies being buried at one place.
An 1854 law made punishable the mutilation of any public graveyard and the disinterment of any deceased person in any grave yard. This was replaced by an 1872 code, which enacted two means of creating a public cemetery. But, the 1854 law was not incorporated into the 1872 law, as claimed by Plaintiff. The Indians were not using the burial ground in 1873, so it cannot be considered a cemetery.
The court offers no protection for American Indian burial sites. It seems as though the court is using technicalities of the cemetery codes to further property development, at the expense of American Indian burial grounds.