Amd S1503, add S1518, N-PC L; amd S235, Ed L; amd S1409, Pks & Rec L
Enacts the "unmarked burial site protection act"; requires the cessation of all ground disturbing activities upon the discovery of a burial ground, human remains or funerary objects, and requires the reporting of such discovery to the local coroner; if such remains are more than 50 years old, the state archaeologist shall be notified; requires state archaeologist to determine whether the remains are of Native American origin; the lineal descendants or culturally affiliated group of such remains shall be notified and be given possession thereof; establishes the Native American burial site review committee to provide for notice and disposition of Native American remains; establishes criminal penalties for the violation of such provisions relating to the disturbance or failure to report the discovery of any such site, remains or objects; grants the attorney general and aggrieved parties a civil right of action for the violations of such provisions; requires inquiry by state agency preservation officers to determine whether any proposed project undertaken, funded or approved by a state agency will disturb burial grounds.
STATE OF NEW YORK
________________________________________________________________________
S. 1620 A. 4291
2009-2010 Regular Sessions
SENATE - ASSEMBLY
February 3, 2009
___________
IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Corporations,
Authorities and Commissions
IN ASSEMBLY -- Introduced by M. of A. ENGLEBRIGHT -- read once and
referred to the Committee on Corporations, Authorities and Commissions
AN ACT to amend the not-for-profit corporation law and the education
law, in relation to the discovery and disposition of human remains and
funerary objects; and to amend the parks, recreation and historic
preservation law, in relation to requiring certain notice and consul-
tation prior to the undertaking of certain projects
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "unmarked burial site protection act".
3 § 2. Legislative findings and declaration. The legislature finds and
4 declares that the sanctity of human burial sites is an intrinsic and
5 paramount value among all cultural and religious traditions which prac-
6 tice the custom of burying the dead. The legislature further finds that
7 there are numerous unmarked burial sites throughout the state, many of
8 which are of great cultural and historical significance to the people of
9 the state, particularly to members of the cultural and religious groups
10 affiliated with them. Such sites are vulnerable to unintentional
11 disturbance in the course of construction and other activities as well
12 as deliberate vandalism and looting. Such disturbance constitutes a
13 severe offense against the descendants of the dead and the beliefs and
14 traditions of the culturally-affiliated groups.
15 The legislature finds and declares that existing laws are inadequate
16 to protect these unmarked burial sites from disturbance, and that New
17 York is one of the very few states which heretofore has provided no
18 express statutory protection for unmarked burial sites. It is therefore
19 declared to be the purpose of this act to ensure that human remains and
20 associated funerary artifacts remain undisturbed to the maximum extent
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07847-01-9
S. 1620 2 A. 4291
1 practicable, and are treated with the utmost respect consistent with the
2 wishes of lineal descendants and culturally-affiliated groups.
3 § 3. Section 1503 of the not-for-profit corporation law is amended by
4 adding a new paragraph (c) to read as follows:
5 (c) Except as otherwise provided in paragraph (c) of section fifteen
6 hundred seven and paragraph (m) of section fifteen hundred ten of this
7 article, this article does not apply to a burial site as defined in
8 paragraph (a) of section fifteen hundred eighteen.
9 § 4. The not-for-profit corporation law is amended by adding a new
10 section 1518 to read as follows:
11 § 1518. Discovery and disposition of human remains and funerary objects.
12 (a) Definitions. As used in this section:
13 (1) "Burial site" means any location in which human remains are inter-
14 red, which is not a cemetery subject to provisions of this chapter, the
15 religious corporation law, the general municipal law, the county law,
16 the town law or the village law.
17 (2) "Committee" means the Native American burial site review committee
18 created by paragraph (c) of this section.
19 (3) "Culturally-affiliated group" means any group, including an Indian
20 tribe, whose past or present government, or traditional culture or reli-
21 gion was or is affiliated with human remains or funerary objects which
22 are the subject of this section. Such group shall include an Indian
23 tribe whose aboriginal territory, as defined by the committee, includes
24 the location of a burial site containing Native American human remains
25 or funerary objects.
26 (4) "Forensic anthropologist" means a person qualified in the medi-
27 colegal investigation/examination of human skeletal remains.
28 (5) "Funerary objects" means any item or items reasonably believed to
29 have been placed with human remains at the time of burial, including but
30 not limited to burial markers, items of personal adornment, vessels,
31 beads, tools, implements, ceremonial objects and other artifacts.
32 (6) "Human remains" means the remains of any part of the body of a
33 deceased person.
34 (7) "Indian tribe" means any Native American tribe, nation or group
35 recognized by the United States of America or the state of New York.
36 (8) "Lineal descendant" means a genealogical descendant established by
37 oral tradition or written record.
38 (9) "State archaeologist" means the person appointed to such office
39 pursuant to section two hundred thirty-five of the education law.
40 (b) Applicability. This section shall apply to all lands within the
41 state, except for lands located upon any Indian reservation located
42 wholly or partly within the state.
43 (c) Native American burial site review committee. There is hereby
44 established a Native American burial site review committee consisting of
45 the following: one member to be appointed by each of the Indian tribes
46 in the state as the official representatives for the purposes of the
47 Native American Graves Protection and Repatriation Act; the state
48 archaeologist; a forensic anthropologist; the chair of the human remains
49 committee or other designee of the New York Archaeological Council; and
50 one member with expertise in the field of historic preservation
51 appointed by the commissioner of the office of parks, recreation and
52 historic preservation. The committee shall elect a chairperson from
53 among its members. The members who are not public employees shall be
54 reimbursed by the state for their reasonable and necessary expenses
55 incurred in the performance of committee functions. It shall be the
56 function of the committee to determine the lineal descendants and/or
S. 1620 3 A. 4291
1 culturally-affiliated groups for Native American human remains and
2 funerary objects subject to this section, and to provide notice to such
3 descendants and/or groups as provided in this section. The state
4 archaeologist shall prepare, and the committee shall adopt, standard
5 procedures for determining the lineal descendants and culturally-affili-
6 ated groups for human remains as required by this section, including
7 acceptable types of proof of such descent and affiliation.
8 (d) Discovery of burial site; reporting requirements. (1) Any person
9 who in the course of any ground-disturbing activity discovers a burial
10 site, human remains or funerary objects shall immediately cease any
11 further disturbance of such site, remains or objects, and shall imme-
12 diately report such discovery to the coroner or medical examiner in the
13 county in which the remains were discovered. The coroner or medical
14 examiner shall within ninety-six hours determine whether any actions are
15 required pursuant to the provisions of article seventeen-A of the county
16 law. If any such remains appear to the coroner or medical examiner to be
17 more than fifty years old, the coroner or medical examiner shall imme-
18 diately provide notice of the discovery of such remains to the state
19 archaeologist, who shall in turn convey each such notice to the other
20 members of the committee. Any inspection or examination shall be made
21 in situ except as necessary to comply with such article seventeen-A or
22 to determine the age of the remains.
23 (2) The state archaeologist, or such qualified person as may be desig-
24 nated by the state archaeologist, shall, upon receiving notice from a
25 coroner or medical examiner of the discovery of human remains, inspect
26 the site, remains and/or objects which are the subject of such notice,
27 prepare a report thereon and provide a copy of the report to the commit-
28 tee. The report shall be based upon physical examination of the discov-
29 ered burial site, remains and/or objects, and shall contain the state
30 archaeologist's conclusion as to whether such site, remains and/or
31 objects may be of Native American origin. In preparing the report, the
32 state archaeologist may seek and obtain assistance from any employee of
33 the regents, from the committee, and from the office of parks, recre-
34 ation and historic preservation.
35 (e) Determination of and notification to lineal descendant or cultur-
36 ally-affiliated group. (1) If the state archaeologist, the forensic
37 anthropologist and the committee agree that the burial site does not
38 wholly or partly contain human remains or funerary objects that are of
39 Native American origin, it shall be the responsibility of the state
40 archaeologist to determine, as soon as practicable, whether there is any
41 reasonably ascertainable lineal descendant or culturally-affiliated
42 group with respect to such site, remains or objects and, immediately
43 upon making such determination, to provide notice to such descendants or
44 group of the reported discovery.
45 (2) If the state archaeologist, the forensic anthropologist and the
46 committee agree that the burial site wholly or partly contains human
47 remains or funerary objects that may be of Native American origin, it
48 shall be the responsibility of the committee to determine the lineal
49 descendants or culturally-affiliated groups. Such determination shall be
50 made as soon as practicable after the committee receives a report from
51 the state archaeologist concerning the burial site. Immediately upon
52 making such determination, the committee shall provide written notifica-
53 tion to such descendants or groups of the reported discovery.
54 (3) The committee shall have the right of possession and stewardship
55 of Native American human remains and funerary objects from the time it
56 receives notification from the state archaeologist pursuant to paragraph
S. 1620 4 A. 4291
1 (d) of this section until the lineal descendants and/or culturally-affi-
2 liated groups receive notification from the committee pursuant to this
3 paragraph, at which time such lineal descendants and/or culturally-affi-
4 liated groups shall have the right of possession and stewardship of such
5 remains and objects. Upon notification to such lineal descendants or
6 culturally-affiliated groups pursuant to this paragraph, ownership of
7 and responsibility for the human remains and funerary objects shall vest
8 exclusively in such descendants or groups, which shall have exclusive
9 authority to determine their disposition.
10 (4) The committee shall establish procedures for making the determi-
11 nation as to whether discovered human remains or funerary objects may be
12 of Native American origin when the state archaeologist and the committee
13 can not come to agreement.
14 (5) Where a burial site contains both Native American and non-Native
15 American human remains or funerary objects, the committee shall be
16 responsible for the Native American burials at the site, and the state
17 archaeologist shall be responsible for all other burials at the site.
18 (f) Disposition of remains and objects. (1) Within ten days after
19 notification by the state archaeologist to a lineal descendant or
20 culturally-affiliated group, other than an Indian tribe of the discovery
21 of a burial site, the descendant or group shall advise the state archae-
22 ologist as to the preferred disposition of the discovered remains or
23 objects. The state archaeologist shall to the maximum extent practicable
24 facilitate such preferred disposition, which may consist of reinterment
25 and protection of the burial site or disinterment and reburial or other
26 disposition as determined.
27 (2) Within ten days after notification by the committee to a lineal
28 descendant or culturally-affiliated group of the discovery of a burial
29 site, the descendant or group shall advise the committee in writing as
30 to the preferred disposition of the discovered remains or objects. The
31 committee shall to the maximum extent practicable facilitate such
32 preferred disposition, which may consist of reinterment and protection
33 of the burial site or disinterment and reburial or other disposition as
34 determined.
35 (g) Disposition of human remains and funerary objects, generally. (1)
36 Except as necessary to carry out the purposes of this section, burial
37 sites, human remains and funerary objects shall remain undisturbed after
38 discovery.
39 (2) Unless express contrary direction is given by the committee, a
40 culturally-affiliated group or lineal descendant, the presumed disposi-
41 tion of human remains and funerary objects shall be that they remain
42 undisturbed where buried, except as provided in subparagraphs three and
43 four of this paragraph.
44 (3) Notwithstanding subparagraph two of this paragraph, where there is
45 no practicable means of modifying the activity which led to the discov-
46 ery of a burial site, human remains or funerary objects in order to
47 avoid disturbing such site, remains or objects, the remains or objects
48 shall be removed and reinterred in accordance with the directions of the
49 committee, culturally-affiliated group, or lineal descendant.
50 (4) Notwithstanding subparagraph two of this paragraph, where the
51 state archaeologist and the committee have been unable to identify the
52 lineal descendant or culturally-affiliated group for human remains or
53 funerary objects, the state archaeologist shall determine the appropri-
54 ate disposition of such remains or objects.
55 (h) Penalties. (1) Any person who fails to report the discovery of a
56 burial site, human remains or funerary objects as required by paragraph
S. 1620 5 A. 4291
1 (d) of this section shall be guilty of a class B misdemeanor, as defined
2 in the penal law.
3 (2) Any person other than the state archaeologist, or a person or
4 group with a right of possession or stewardship pursuant to this
5 section, or a designee thereof, who intentionally removes human remains
6 or funerary objects from a burial site shall be guilty of a class A
7 misdemeanor, as defined in the penal law.
8 (3) Any person who defaces or destroys a burial site, human remains or
9 funerary objects, or who possesses human remains or funerary objects
10 with intent to sell such remains or artifacts, or who sells or attempts
11 to sell human remains or funerary objects, shall be guilty of a class E
12 felony, as defined in the penal law.
13 (i) Enforcement. The attorney general or any aggrieved party, includ-
14 ing the committee and any lineal descendant or culturally-affiliated
15 group, may bring an action in supreme court in the judicial district
16 where the remains or objects covered by this section are located to
17 enjoin violations or threatened violations of this section, and to
18 recover such remains or objects, and in the case of an aggrieved party,
19 compensatory and punitive damages for such violation.
20 § 5. Section 235 of the education law is amended to read as follows:
21 § 235. State science service. There shall be maintained in the
22 university a science service which shall be known as the state science
23 service and the state geologist, paleontologist, botanist [and], ento-
24 mologist, and archaeologist shall constitute its staff together with
25 such other scientists as the regents may employ or who are now employed
26 by them. This service is empowered and directed to make available its
27 services to all the departments of the state, and the residents of the
28 state under such rules and regulations as the regents may prescribe and
29 is empowered to engage in such scientific research as directed by law or
30 by the regents and shall cooperate with scientific units or agencies of
31 other states, the federal government, educational institutions and
32 industry in the discovery, analysis and dissemination of scientific
33 information. The director of the state museum shall also be the direc-
34 tor and head of the state science service and the staff of the service
35 shall be members of the staff of the state museum.
36 § 6. Section 14.09 of the parks, recreation and historic preservation
37 law is amended by adding a new subdivision 3 to read as follows:
38 3. Prior to the preparation or approval of the final design or plan of
39 any project undertaken by a state agency, or prior to the funding of any
40 project by a state agency, or prior to an action of approval or entitle-
41 ment of any private project by a state agency, the agency's preservation
42 officer shall perform a diligent inquiry to determine whether any aspect
43 of the project may or will effect a disturbance of a known or suspected
44 burial site for which a culturally-affiliated Indian tribe, group or
45 lineal descendent can be identified. The terms "burial site", "cultural-
46 ly-affiliated" and "Indian tribe" shall have the same meanings as
47 ascribed to such terms in paragraph (a) of section fifteen hundred eigh-
48 teen of the not-for-profit corporation law. In such event such officer
49 shall notify such Indian tribe and the Native American burial site
50 review committee established by section fifteen hundred eighteen of the
51 not-for-profit corporation law and consult with the tribe and such
52 committee to determine how to avoid such disturbance.
53 § 7. This act shall take effect on the first of January next succeed-
54 ing the date on which it shall have become a law.
