1. (a) In conducting mediation sessions and issuing any written decision, the mediator shall consider and encourage the parties to consider restorative justice principles and values applicable to the dispute, including creating a safe confidential space for dialogue, encouraging and facilitating parties to employ their own problem-solving capacities, and fostering a process that allows for parties to come to an understanding and empathy of each other's grievances. Additionally, mediators are encouraged to, if requested, incorporate tribal customs and traditions regarding dispute and meditation processes.

2. (b) In resolving a dispute, the mediator shall consider and encourage the parties to consider restorative justice principles. The following is a non-exclusive list of considerations to discuss to advance restorative justice principles.

   1. (1) The harm(s) caused to the affected tribes and communities by the discovery (unearthing) and/or removal of any ancestral remains and cultural items, as well as the benefits of their return.
   2. (2) The harm(s) to affected tribes if remains and cultural items are left un-repatriated and/or not reinterred with culturally appropriate treatment.
   3. (3) The tribal traditions, customs, and values necessitating the return of the remains and cultural items, including the significance of these to the tribe(s) and tribal community.
   4. (4) Deference to tribal knowledge concerning the remains or cultural items, and related history, including the significance of the location of their discovery.
   5. (5) Tribal customs regarding preservation in place, removal, handling and storage of remains and cultural items during a dispute, as well as for their repatriation or reinterment with culturally appropriate treatment.
   6. (6) The effort and costs incurred by the tribe(s) in seeking repatriation or the reinterment of remains and cultural items with culturally appropriate treatment.
   7. (7) Any assistance tribes will need in repatriation and/or reinterment with culturally appropriate treatment, including providing sites for reinterment and related ceremonies.
   8. (8) Direct and indirect costs associated with the meditation and repatriation process, including costs to tribes or others to prepare items for reburial or other treatment, assessing and cataloguing items, obtaining places to repatriate the items, and incidental expenses such as travel.
   9. (9) Restitution for lost, stolen, or damaged cultural items and ancestral remains.
   10. (10) Pesticide histories and the need to conduct tests for pesticides and toxins in culturally appropriate ways, culturally appropriate corrective actions to reduce or remove contamination of remains and cultural items, or restitution if such corrective actions are unavailable.

   11. (11) Other measures mitigating harms caused to the tribes, including contributions and improvements to Native American programs and studies or other measures to foster a greater understanding and appreciation of California Native American tribes, people, and culture, including, but not limited to:

       1. (A) Museums working with tribes to determine culturally appropriate exhibits.
       2. (B) Universities partnering with tribes on tribally led research and programing.
       3. (C) Acknowledgements of ancestral lands.
       4. (D) Apologies for wrongs committed towards California Native Americans.
       5. (E) The development and adoption of best practices for policies and procedures related to repatriation and the repatriation process.
       6. (F) The development and adoption of memorandums of understanding or other collaborative agreements for communications, partnerships, and other relationships.

Note: Authority cited: Section 8016, Health and Safety Code; and Section 5097.94, Public Resources Code. Reference: Section 8016, Health and Safety Code.

History

1. New section filed 3-4-2026; operative 7-1-2026 (Register 2026, No. 10).