Wana the Bear v. Community Construction, Inc.
180 Cal. Rptr. 423, 128 Cal.App.3d 536 (1982)
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Rule of Law:
A burial site does not qualify for protection as a public cemetery under California law unless it meets the statutory requirements of either formal dedication or prescriptive use, which includes continuous, uninterrupted use for five years. A site that was abandoned before the enactment of the controlling 1872 statute does not gain protected status.
Facts:
- The property at issue was a burial ground used by the Miwok Indians.
- The Miwok tribe was driven out of the area between 1850 and 1870, at which point the site ceased to be used as a burial ground.
- On August 6, 1979, the Stockton City Council approved a final subdivision map allowing for residential development on the property.
- Community Construction, Inc., began excavating the property to build a residential tract.
- In the fall of 1979, Community Construction, Inc., uncovered human remains on the property and ultimately disinterred the remains of over 200 individuals.
- Wana the Bear is a direct descendant of the Miwok Indians whose ancestors were buried at the site.
Procedural Posture:
- Wana the Bear sued Community Construction, Inc. in a California trial court, seeking an injunction to stop further excavation.
- Community Construction, Inc. filed a demurrer, arguing that the complaint failed to state a valid legal claim.
- The trial court sustained the defendant's demurrer without leave to amend.
- A judgment of dismissal was entered in favor of Community Construction, Inc.
- Wana the Bear, as appellant, appealed the judgment of dismissal to the California Court of Appeal.
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Issue:
Does a Native American burial site that contains six or more bodies but was no longer in use when the 1872 California cemetery statutes were enacted, qualify as a protected public cemetery under current state law?
Opinions:
Majority - Blease, J.
No. An ancient burial ground abandoned before 1873 does not qualify as a protected public cemetery under California's statutory scheme. The plaintiff's claim relies on Health & Safety Code § 8100, which states that six or more bodies buried in one place constitute a cemetery. However, the court reasoned that this section must be read in conjunction with the sections requiring that a public cemetery be created either by formal dedication or by prescriptive use. The plaintiff argued that the site gained indelible status as a 'public graveyard' under an 1854 law that only required the presence of six bodies. The court rejected this argument, explaining that the 1854 law was superseded by the 1872 Political Code, which was not retroactive and added a crucial requirement for prescriptive use: the land must have been 'used by the inhabitants thereof continuously, without interruption, as a burial-ground for five years.' Citing Stockton v. Weber, the court held that since the Miwok people had ceased using the burial ground by 1870, it was not being 'used' as a cemetery when the 1872 law took effect and therefore never acquired protected status under that statute or its modern successors.
Analysis:
This decision strictly interprets California's cemetery statutes, clarifying that historical or cultural significance alone does not grant a burial site legal protection on private land. The ruling highlights a significant gap in the law, leaving ancient burial grounds abandoned before the 1872 statutory framework vulnerable to desecration. By refusing to extend protections based on general public policy where statutory language is specific, the court underscores the principle of legislative supremacy. This case likely served as a catalyst for later legislation aimed specifically at protecting Native American cultural and burial sites, which the existing general cemetery laws failed to do.
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