Wana the Bear v. Community Construction

In 1982, the California Court of Appeals sided with the commercial developers arguing that because the site had ceased being used for a period of five years or more that it was no longer considered a cemetery.^[1]

The decision has been heavily criticized by Indigenous people, who note that the court failed to take into account that the cessation in using burial grounds for a period of five years or more was involuntary, since Indigenous peoples of California throughout the state were driven away from their homelands by settlers during the gold rush and California Genocide.^[1]

The decision has been referred to as a double standard, since "non-Indian graves have never been treated in such a manner anywhere in the United States."^[1] The decision was criticized as heavily ethnocentric and is often discussed in relation to other similar decisions against native people at the time, including State v. Glass which upheld that Indigenous remains were not protected under a statue against grave robbing in Ohio and Carter v. City of Zanesville which upheld that a cemetery was considered abandoned if use ceased.^[2]

The decision allowed hundreds of thousands of Native American human bodies to be unearthed and removed from sites, often for residential and commercial development.^[1]

In 1990, U.S. Congress passed the Native American Graves Protection and Repatriation Act, which, in theory, effectively ended this double standard that Wana the Bear v. Community Construction upheld, although the burden of proof to demonstrate connection still falls on native people, which is often difficult when sites have already been desecrated and artifacts have been removed or stolen.^[3]

In California, Assembly Bill 275: Cultural Preservation (AB 275) was passed in 2020 that attempted to extend protections to some non-federally recognized tribes.^[4] This development was received controversially by some tribes, some of whom argued that it perpetuated genocide.^[5]