MINUTES OF THE
SENATE COMMITTEE ON HUMAN RESOURCES AND FACILITIES
Sixty-seventh Session
May 12, 1993
The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 2:08 p.m., on Wednesday, May 12, 1993, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Raymond D. Rawson, Chairman
Senator William R. O'Donnell, Vice Chairman
Senator Randolph J. Townsend
Senator Joseph M. Neal, Jr.
Senator Bob Coffin
Senator Diana M. Glomb
Senator Lori L. Brown
GUEST LEGISLATORS PRESENT:
Senator Ernest E. Adler, Capital Senatorial District
STAFF MEMBERS PRESENT:
Pepper Sturm, Research Analyst
Susan Henson, Committee Secretary
OTHERS PRESENT:
A. Brian Wallace, Chairman, Washoe Tribe of Nevada and California
Paula Berkley, Lobbyist, Walker River Paiute Tribe
Ronald M. James, State Historic Preservation Officer
Alice M. Baldrica, Archaeologist, Deputy, State Historic Preservation Officer
Robert Elston, Archaeologist, Owner, Intermountain Research
Gerald W. Allen, Director, State Indian Commission
Viola Kennison, Walker River Paiute Tribe
Chairman Rawson opened the hearing on Senate Bill (S.B.) 408.
SENATE BILL 408: Makes various changes concerning protection of Indian burial sites. (BDR 33-1483)
Senator Ernest E. Adler, Capital Senatorial District, explained S.B. 408 builds on the previous law regarding Indian burial sites and increases the protection for the sites. The bill makes an attempt to preserve the sites by contacting the appropriate tribe in a timely fashion and allowing for analysis. In addition, the bill increases the penalties from a misdemeanor to a gross misdemeanor. S.B. 408 is an attempt to tighten the standards and increase the penalties so the artifacts are not stolen and the Indian burial sites are not raided.
Chairman Rawson referred to section 1.1. of the bill which speaks to the consummation of an agreement between the tribe and the contractor/developer before commencement of an activity. The chairman stated he felt this might be open for commercial exploitation, and questioned if the state would have an interest in the agreements developed.
Senator Adler stated he did not feel there would be any exploitation and remarked that this question should be addressed in the testimony to follow.
A. Brian Wallace, Chairman, Washoe Tribe of Nevada and California, introduced Paula Berkley, their legislative consultant. Mr. Wallace articulated the basis for the proposed amendments with regard to working with all the interested parties outside the tribal community who would be impacted by the amendments.
Mr. Wallace briefly outlined the historical transitions of ownership patterns over the last 100 years. The Washoe tribe historically occupied approximately 4,000 square miles in and around Lake Tahoe, and over a period of time, with the gold rush and the Comstock, the ownership patterns under tribal control have been significantly reduced. Although the Washoe tribe still exercise, believe and enjoy a sphere of influence with regard to the historical land areas, it is mostly expressed in a political or cultural protection context, and to some degree, in an economic context as well.
Mr. Wallace stated, over a period of time, the Indian culture has been one of significant interest to the scientific community, as well as the historical documentation as to the patterns of how this country evolved over the past 200 years. He continued, there has been a desire to integrate the information about Indian cultures into the national experience. Most of that has been done by the scientific and academic communities who have looked at the empirical evidence left behind by the people who occupied these areas, and how that information has been applied in medicine, technologies, and the cultural ethnological issues, in addition to such things as weather patterns, vegetation patterns, etc.
Mr. Wallace said since the early part of the 1900s, tribal institutions have become more sophisticated in a legal and political sense, and those institutions have developed, with the passage of specific federal legislation by the United States Congress, the self-determination and inherent sovereign authority the tribes possessed. With that sophistication, tribes are also beginning to develop the institutional capacity to be more accountable and effective in the management of their resources and information.
Continuing, Mr. Wallace said the Washoe tribe has developed a cultural resource management plan which serves as an on-reservation expression of those particular standards previously discussed today. The tribe has zoning patterns established in the land use development processes on the reservations that take into account cultural and historic values, and they have established historic and cultural districts on the reservation that prohibit all development activity, even by the tribe, and individuals in the tribe. He said the tribes are attempting to build their own accountability in protecting the data discovered through the development processes. In addition, the tribe has been working with at-large governing bodies, such as the Tahoe Regional Planning Agency (TRPA) and the Truckee Meadows Regional Planning Commission (TMRPC), to develop statutory/regulatory protection to save the data collected in areas they have jurisdiction over, be it public or private ownership.
Mr. Wallace explained the tribe has been working with 11 different county institutions, in two states, with varying sophistication, to develop cultural resource protection ordinances and programs whereby the tribes would play a larger participatory role in the review of projects that might have a significant impact on these resources, and in particular, an adverse impact. The Washoe Tribe has funded projects, with the aid of the United States, whereby they have actually done primary and secondary data collection and assisted in developing a mapping modeling process to be used by the county planning departments, who would then maintain a file reflecting the known areas of archeological significance. The goal would be to decrease a lot of inadvertent discovery activity which will be increasing over time as development patterns extend outside the traditional urban areas into the more rural areas.
He stated the tribe is attempting to serve as a resource to the institutions that have an interest, a liability and a jurisdictional responsibility in this area, and to be a tool to help flush out and protect this information so that the common interests with the county and state in the development process avoid future conflicts.
Mr. Wallace said the tribes are currently training site monitors and sending native Americans to school to get degrees in anthropology and archaeology in hopes of developing a long term plan to deal more responsibly in this area. There has been a lot of effort by the non-tribal community in a political and statutory sense, such as the antiquities statute embraced by the state of Nevada. The tribes want to emphasize there is prehistoric and historic information which is important and needs to be saved and preserved for future generations, which presently is in danger of being lost.
He concluded his brief history by stating currently, the tribe is involved in a project at Cave Rock in Lake Tahoe to preserve the religious values of that particular site. The tribe is attempting to be a vocal advocate and affirmative partner with regard to some of the modifications being proposed for that area.
Senator Coffin wondered if the bill, as written, has a different intent than what was initially requested.
Mr. Wallace advised the intent was to protect known and undiscovered cemeteries and the areas found to be the final resting place for Indian people.
Senator Coffin clarified that the bill protects burial sites, funerary objects, and artifacts related to the final resting place of native Americans. He questioned section 4, lines 38 and 39, of the bill which takes the State Indian Commission out of the picture and says the division must consult with the appropriate tribe. The senator remarked that it might be difficult to determine the tribe with the occupational rights of an area at the time a burial site was created.
Mr. Wallace pointed out Indian mobility created uncertainty in some areas, such as the joint use areas, but generally the major locations have remained the same in terms of historic occupational use and utilization. Mr. Wallace presented the committee with a map denoting the locations of Indian reservations and colonies within the state of Nevada (Exhibit C). He asserted originally, when the burial statute was developed, the State Indian Commission was the designated body. However, since that time, tribes have become more involved and have a larger participatory role in the protection and disposition of information. The State Indian Commission is not being eliminated, but rather, the idea was to expand the number of people contacted and involved.
Senator Coffin maintained the State Indian Commission is an existent body, recognized by statute, and has some powers and access to the current governmental structure. In response to Senator Coffin's statement, Mr. Wallace explained the tribes did not want the commission to be the only focal point of contact.
Mr. Wallace outlined the proposed amendments for S.B. 408 (Exhibit D ). He stressed the overall goal of the legislation is to increase the financial penalties for non-compliance and thus make the law enforcement criteria in the statute more effective. The second goal is to provide an option which would enable/encourage agencies, archaeologists, developers, miners, etc. to develop a memorandum of agreement before construction or actual site modifications were to occur and to try and preempt any costly delays in the development processes. Mr. Wallace pointed out tribal members are attempting to foster cooperation between the tribes and local neighboring institutions to create a heightened awareness in protecting this information and to develop an official protocol which would serve as a cooperative basis to deal with this information. There are a lot of statutory footprints at the national level, and this bill addresses the issues at a local level.
Mr. Wallace pointed out in addition to Indian grave sites, there are non-Indian, euro-american burial sites which must be taken into consideration. He felt there needs to be specific delineation to assist in the identification process, which is addressed in section 1.2(d) of the proposed amendment (Exhibit D).
A brief discussion ensued regarding changing the language back from "funerary object" to "artifact," and a definition of those words. It was noted the nature of a funerary object could be debatable, while an artifact has a broader definition and would be easier to prove in court.
Paula Berkley, Lobbyist, Walker River Paiute Tribe and Washoe Tribe of Nevada and California, stated the archaeologists pointed out the funerary object terminology is more specific and thus more limiting than the word artifact.
Mr. Wallace drew attention to section 3 of the amendment (Exhibit D), which outlines procedures to be taken for inadvertent discovery. If there is no agreement and a burial site is uncovered, the person needs to involve the Office of Historic Preservation and the affected tribe. The goal of this bill is to foster cooperation between the private interests, tribal interests and the institutional interests.
A discussion ensured regarding omission of the words "scientific study" from the bill. The change would delete the presumptive right to scientifically study every deceased native American or burial site. Mr. Wallace acknowledged the efforts of the scientific community, the anthropologists and archaeologists, who have helped create protection for tribal heritage. However, the main focus should be the native Americans, their heritage and history, rather than the psychology that Indians are subjects of study.
Mr. Wallace briefly discussed section 5 of the amendment (Exhibit D), the enhancement of penalties, which would act as a deterrent to those persons who destroy or sell native American artifacts.
Ronald M. James, State Historic Preservation Officer, introduced
Alice M. Baldrica, Archaeologist, Deputy, State Historic Preservation Officer, a nationally recognized expert on negotiating burial settlements and working with these issue. Mr. James stated the division is supportive of the legislation, and in particular agrees with the increase in the penalties for willfully disturbing burial sites. The division also endorses the concept of heightened sensitivity toward human remains, be it native American, or otherwise.
In response to Chairman Rawson's concerns, Mr. James suggested section 1, line 7, of the bill, be amended after the word "tribe" by inserting the language "and the division." In addition, Mr. James commented the archeological community is concerned with removal of the language in section 4.3, lines 4 through 9, and the language in section 4.4(c), lines 12 through 15 of the bill. There are occasions when it is appropriate and acceptable to analyze archeological sites or human remains. The archaeologists want to make certain removal of that language will not forbid analysis.
Mr. James referred the committee to a Fish and Wildlife Service publication. Who Were The Ancient People of Stillwater National Wildlife Refuge, Nevada? (Exhibit E. The original is on file in the Research Library.) He pointed out this publication is an example of what can be learned from a scientific study. The native Americans were able to reach an agreement with the archaeologists to retrieve, analyze and reinter the remains. When the native American tribe feels analysis is appropriate, then the study should be allowed to proceed. The division is concerned that a court may interpret elimination of the language as legislative intent that scientific analysis, or any type of analysis, should be precluded. Mr. James concluded there is general agreement between the native Americans and the archaeologists that, when agreed upon and appropriate, analysis of remains should be conducted.
Chairman Rawson pointed out removal of the scientific study language may handicap law enforcement agencies. In his opinion, the analysis is necessary to arrive at a proper forensic determination.
Mr. James agreed it is not always known if the burial is clandestine, historic euro-american or native American. He did not feel the intent was to preclude the preliminary analysis or subsequent analysis, if appropriate.
Chairman Rawson generally reviewed what he considered to be substantive changes in the legislation: prior to commencing an activity, a person must now contact the appropriate Indian tribe, instead of the State Indian Commission, which is a fundamental shift of responsibility; and, the increase in penalty from a misdemeanor to a gross misdemeanor, which he pointed out, creates a fiscal impact.
Ms. Baldrica reiterated Mr. James' request to include the division in the process and thus remain involved in the negotiations. When burials are found on private land, the division would like to receive a copy of the report by certified mail, at which time they would immediately notify the affected tribe. When remains are found on public land, the division would be the point of contact.
Robert Elston, Archaeologist, Owner Intermountain Research, and previous Director of the Archeological Survey at the University of Nevada, pointed out his company has been working with the Washoe Tribe in helping them develop their cultural resources. In response to the chairman's question, Mr. Elston stated they have state and federal permits to work in the state of Nevada, as well as other western states. Mr. Elston spoke in support of S.B. 408.
Mr. Elston concurred with Mr. Wallace's proposed change to remove the presumptive right of scientific investigation. However, he maintained scientific investigation would still be allowed when appropriate and negotiated with the tribe, and the tribe agreed it would be in their best interest. He recognized Chairman Rawson's concern about the amount of investigation needed in order to determine whether a burial is euro-american, prehistoric Indian, or whatever. Frequently, that determination cannot be made in the field and the remains must be taken to a lab for further analysis, which he agreed is necessary.
Mr. Elston stated the professional archaeologists in Nevada are concerned with the removal of the scientific investigation language and will be, by way of letter, suggesting an amendment to section 1.1, line 7, of the bill. After, "any site discovered," they would like the following language added, "that may include such studies as deemed appropriate by the tribe." This additional language would remove the presumptive interest of the scientific community and make it a cooperative agreement between the tribe and the scientific community. In Mr. Elston's opinion, the amendments submitted by Mr. Wallace on behalf of the Washoe Tribe would be sufficient if there is an assurance regarding legislative intent.
In response to Mr. Elston's statement, Chairman Rawson emphasized the best way to insure legislative intent is to put language in the bill which clearly establishes intent by way of definition.
Mr. Elston encouraged retention of the word "artifact" in the bill, which is a more inclusive term, instead of "funerary objects."
Gerald W. Allen, Director, State Indian Commission, expressed support of S.B. 408, the amendments, and issues presented by Mr. Wallace of the Washoe Tribe. In his opinion, the bill strengthens the current existing law. Mr. Allen addressed those concerned with deletion of the language, "consult with the Nevada Indian Commission" from the bill. He stressed the commission would continue to have an active role in the process, as they would continue to receive calls from the coroner's office and the sheriff's departments.
Viola Kennison, Walker River Paiute Tribe, read a letter from Anita Collins, Chairman, Walker River Paiute Tribe (Exhibit F), expressing support of S.B. 408. Ms. Kennison then addressed the committee as an indigenous native American, and a member of the Walker River Paiute Tribe. Ms. Kennison stated she was very disturbed with the language in S.B. 408 allowing for scientific study of their ancestors. In her opinion, the native American remains should not be treated as scientific specimens, but rather as human remains that have had their final resting place disturbed, an issue that requires sensitivity. She related a story about a native American body uncovered by rain waters in Mineral County and how it took 2 months before the body was delivered to the Walker River Indian tribe for reinterment. Ms. Kennison stressed the native Americans are very spiritual in nature and this method of treatment was offensive and disrespectful.
Chairman Rawson reiterated he raised the issue out of a forensic interest to make sure there has not been a recent crime committed. Although the language must be clarified, it will be done with sensitivity.
As there was no opposition to the bill, the chairman stated he would clarify the amendments and handle it in a properly noticed work session. Written testimony from the Nevada Archaeological Association was received into the record (Exhibit G).
Chairman Rawson closed the hearing on S.B. 408 and opened the hearing on Assembly Bill (A.B.) 429.
ASSEMBLY BILL 429: Eliminates requirement for election for board of directors of county fire protection district if only one candidate files for office. (BDR 42-1355)
Pepper Sturm, Research Analyst, testified A.B. 429 is Speaker Joseph Dini's bill and provides that if only one candidate has filed for election to the board of directors of the county fire protection district, the candidate must be declared elected and no election may be held for that office. The measure applies only to county fire protection districts created by election under the provisions of Nevada Revised Statutes (NRS) 474. In addition to county and city fire departments, fire protection in Nevada may be provided by districts established under three different provisions of state law. Districts may be established under NRS 474 and be governed by an elected board of directors, or they may be formed under NRS 473, and administered by the board of county commissioners in cooperation with the state forest or fire ward. Additionally, a NRS 474 district, which this bill affects, may organize as a general improvement district under NRS 318. A.B. 429 affects only those districts formed under the NRS 474. Speaker Dini indicated many of the districts often have only one person running for office and it is a burden upon local government to spend thousands of dollars to hold an election for one candidate.
Chairman Rawson stated the bill appears to have a good public purpose and called for discussion.
Senator Coffin asked if the statute speaks to the length of the filing period for the districts. A brief discussion ensued regarding the filing period and its relevance.
Chairman Rawson closed the hearing on A.B. 429.
SENATOR TOWNSEND MOVED TO DO PASS A.B. 429.
SENATOR COFFIN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR O'DONNELL WAS ABSENT FOR THE VOTE.)
* * * * *
Chairman Rawson requested Pepper Sturm prepare amendments to S.B. 408, noting in particular a change in the scientific study language to allow for forensic determination. A discussion ensued among the committee members regarding their concerns to maintain a sensitivity to the native Americans beliefs.
Chairman Rawson presented Bill Draft Request (BDR) 22-1300 and BDR 39-1393.
BILL DRAFT REQUEST 22-1300: Revises provisions restricting definition of "single family residence" in local ordinances.
SENATOR NEAL MOVED TO INTRODUCE BDR 22-1300.
SENATOR TOWNSEND SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR O'DONNELL WAS ABSENT FOR THE
VOTE.)
* * * * *
BILL DRAFT REQUEST 39-1393: Requires certain community-based training centers to provide training to certain mentally and functionally retarded persons when they are not otherwise working.
SENATOR NEAL MOVED TO INTRODUCE BDR 39-1393.
SENATOR GLOMB SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR O'DONNELL WAS ABSENT FOR THE VOTE.)
* * * * *
There being no further business, Chairman Rawson adjourned the meeting at 3:40 p.m.
RESPECTFULLY SUBMITTED:
Susan Henson,
Committee Secretary
APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE:
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Senate Committee on Human Resources and Facilities
May 12, 1993
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