Amd S1503, add S1518, N-PC L; amd S235, Ed L; amd S14.09, 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; provides that 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; provides that 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
________________________________________________________________________
5837
2013-2014 Regular Sessions
IN ASSEMBLY
March 7, 2013
___________
Introduced by M. of A. ENGLEBRIGHT, GABRYSZAK, OTIS, STEVENSON, JAFFEE,
FINCH, MAISEL, MONTESANO, THIELE, RAIA, LAVINE, ROSENTHAL, AUBRY,
COOK, SCARBOROUGH, KEARNS, MILLMAN -- Multi-Sponsored by -- M. of A.
BROOK-KRASNY, GOTTFRIED, LUPARDO, MARKEY, McDONOUGH, WEISENBERG --
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08081-01-3
A. 5837 2
1 declared to be the purpose of this act to ensure that human remains and
2 associated funerary artifacts remain undisturbed to the maximum extent
3 practicable, and are treated with the utmost respect consistent with the
4 wishes of lineal descendants and culturally-affiliated groups.
5 § 3. Section 1503 of the not-for-profit corporation law is amended by
6 adding a new paragraph (c) to read as follows:
7 (c) Except as otherwise provided in paragraph (c) of section fifteen
8 hundred seven and paragraph (m) of section fifteen hundred ten of this
9 article, this article does not apply to a burial site as defined in
10 paragraph (a) of section fifteen hundred eighteen of this article.
11 § 4. The not-for-profit corporation law is amended by adding a new
12 section 1518 to read as follows:
13 § 1518. Discovery and disposition of human remains and funerary objects.
14 (a) Definitions. As used in this section:
15 (1) "Burial site" means any location in which human remains are inter-
16 red, which is not a cemetery subject to provisions of this chapter, the
17 religious corporation law, the general municipal law, the county law,
18 the town law or the village law.
19 (2) "Committee" means the Native American burial site review committee
20 created by paragraph (c) of this section.
21 (3) "Culturally-affiliated group" means any group, including a Native
22 American tribe, whose past or present government, or traditional culture
23 or religion was or is affiliated with human remains or funerary objects
24 which are the subject of this section. Such group shall include a Native
25 American tribe whose aboriginal territory, as defined by the committee,
26 includes the location of a burial site containing Native American human
27 remains or funerary objects.
28 (4) "Forensic anthropologist or bioarchaeologist" means a person qual-
29 ified in the medicolegal or osteological investigation/examination of
30 human skeletal remains.
31 (5) "Funerary objects" means any item or items reasonably believed to
32 have been placed with human remains at the time of burial, including but
33 not limited to burial markers, items of personal adornment, vessels,
34 beads, tools, implements, ceremonial objects and other artifacts.
35 (6) "Human remains" means the remains of any part of the body of a
36 deceased person.
37 (7) "Lineal descendant" means a genealogical descendant established by
38 oral tradition or written record.
39 (8) "Native American tribe" means any Native American tribe, nation or
40 group.
41 (9) "State archaeologist" means the person appointed to such office
42 pursuant to section two hundred thirty-five of the education law.
43 (b) Applicability. This section shall apply to all lands within the
44 state, except for lands located upon any Native American reservation
45 located wholly or partly within the state.
46 (c) Native American burial site review committee. There is hereby
47 established a Native American burial site review committee consisting of
48 the following: one member to be appointed by each of the Native American
49 tribes in the state as the official representatives for the purposes of
50 the Native American Graves Protection and Repatriation Act; the state
51 archaeologist; a forensic anthropologist or bioarchaeologist; the chair
52 of the human remains committee or other designee of the New York
53 Archaeological Council; and one member with expertise in the field of
54 historic preservation appointed by the commissioner of the office of
55 parks, recreation and historic preservation. The committee shall elect a
56 chairperson from among its members. The members who are not public
A. 5837 3
1 employees shall be reimbursed by the state for their reasonable and
2 necessary expenses incurred in the performance of committee functions.
3 It shall be the function of the committee to determine the lineal
4 descendants and/or culturally-affiliated groups for Native American
5 human remains and funerary objects subject to this section, and to
6 provide notice to such descendants and/or groups as provided in this
7 section. The state archaeologist shall prepare, and the committee shall
8 adopt, standard procedures for determining the lineal descendants and
9 culturally-affiliated groups for human remains as required by this
10 section, including acceptable types of proof of such descent and affil-
11 iation.
12 (d) Discovery of burial site; reporting requirements. (1) Any person
13 who in the course of any ground-disturbing activity discovers a burial
14 site, human remains or funerary objects shall immediately cease any
15 further disturbance of such site, remains or objects, and shall imme-
16 diately report such discovery to the coroner or medical examiner in the
17 county in which the remains were discovered. The coroner or medical
18 examiner shall within ninety-six hours determine whether any actions are
19 required pursuant to the provisions of article seventeen-A of the county
20 law. If any such remains appear to the coroner or medical examiner to be
21 more than fifty years old, the coroner or medical examiner shall imme-
22 diately provide notice of the discovery of such remains to the state
23 archaeologist, who shall in turn convey each such notice to the other
24 members of the committee. Any inspection or examination shall be made
25 in situ except as necessary to comply with such article seventeen-A or
26 to determine the age of the remains.
27 (2) The state archaeologist, or such qualified person as may be desig-
28 nated by the state archaeologist, shall, upon receiving notice from a
29 coroner or medical examiner of the discovery of human remains, inspect
30 the site, remains and/or objects which are the subject of such notice,
31 prepare a report thereon and provide a copy of the report to the commit-
32 tee. The report shall be based upon physical examination of the discov-
33 ered burial site, remains and/or objects, and shall contain the state
34 archaeologist's conclusion as to whether such site, remains and/or
35 objects may be of Native American origin. In preparing the report, the
36 state archaeologist may seek and obtain assistance from any employee of
37 the regents, from the committee, and from the office of parks, recre-
38 ation and historic preservation.
39 (e) Determination of and notification to lineal descendant or cultur-
40 ally-affiliated group. (1) If the state archaeologist, the forensic
41 anthropologist or bioarchaeologist, and the committee agree that the
42 burial site does not wholly or partly contain human remains or funerary
43 objects that are of Native American origin, it shall be the responsibil-
44 ity of the state archaeologist to determine, as soon as practicable,
45 whether there is any reasonably ascertainable lineal descendant or
46 culturally-affiliated group with respect to such site, remains or
47 objects and, immediately upon making such determination, to provide
48 notice to such descendants or group of the reported discovery.
49 (2) If the state archaeologist, the forensic anthropologist or bioar-
50 chaeologist, and the committee agree that the burial site wholly or
51 partly contains human remains or funerary objects that may be of Native
52 American origin, it shall be the responsibility of the committee to
53 determine the lineal descendants or culturally-affiliated groups. Such
54 determination shall be made as soon as practicable after the committee
55 receives a report from the state archaeologist concerning the burial
56 site. Immediately upon making such determination, the committee shall
A. 5837 4
1 provide written notification to such descendants or groups of the
2 reported discovery.
3 (3) The committee shall have stewardship of Native American human
4 remains and funerary objects from the time it receives notification from
5 the state archaeologist pursuant to paragraph (d) of this section until
6 the lineal descendants and/or culturally-affiliated groups receive
7 notification from the committee pursuant to this paragraph, at which
8 time such lineal descendants and/or culturally-affiliated groups shall
9 have the right of possession and stewardship of such remains and
10 objects. Upon notification to such lineal descendants or culturally-af-
11 filiated groups pursuant to this paragraph, ownership of and responsi-
12 bility for the human remains and funerary objects shall vest exclusively
13 in such descendants or groups, which shall have exclusive authority to
14 determine their disposition.
15 (4) The committee shall establish procedures for making the determi-
16 nation as to whether discovered human remains or funerary objects may be
17 of Native American origin when the state archaeologist and the committee
18 can not come to agreement.
19 (5) Where a burial site contains both Native American and non-Native
20 American human remains or funerary objects, the committee shall be
21 responsible for the Native American burials at the site, and the state
22 archaeologist shall be responsible for all other burials at the site.
23 (f) Disposition of remains and objects. (1) Within ten days after
24 notification by the state archaeologist to a lineal descendant or
25 culturally-affiliated group, other than a Native American tribe of the
26 discovery of a burial site, the descendant or group shall advise the
27 state archaeologist as to the preferred disposition of the discovered
28 remains or objects. The state archaeologist shall to the maximum extent
29 practicable facilitate such preferred disposition, which may consist of
30 reinterment and protection of the burial site or disinterment and
31 reburial or other disposition as determined.
32 (2) Within ten days after notification by the committee to a lineal
33 descendant or culturally-affiliated group of the discovery of a burial
34 site, the descendant or group shall advise the committee in writing as
35 to the preferred disposition of the discovered remains or objects. The
36 committee shall to the maximum extent practicable facilitate such
37 preferred disposition, which may consist of reinterment and protection
38 of the burial site or disinterment and reburial or other disposition as
39 determined.
40 (g) Disposition of human remains and funerary objects, generally. (1)
41 Except as necessary to carry out the purposes of this section, burial
42 sites, human remains and funerary objects shall remain undisturbed after
43 discovery.
44 (2) Unless express contrary direction is given by the committee, a
45 culturally-affiliated group or lineal descendant, the presumed disposi-
46 tion of human remains and funerary objects shall be that they remain
47 undisturbed where buried, except as provided in subparagraphs three and
48 four of this paragraph.
49 (3) Notwithstanding subparagraph two of this paragraph, where there is
50 no practicable means of modifying the activity which led to the discov-
51 ery of a burial site, human remains or funerary objects in order to
52 avoid disturbing such site, remains or objects, the remains or objects
53 shall be removed and disposition be determined in accordance with the
54 directions of the committee, culturally-affiliated group, or lineal
55 descendant.
A. 5837 5
1 (4) Notwithstanding subparagraph two of this paragraph, where the
2 state archaeologist and the committee have been unable to identify the
3 lineal descendant or culturally-affiliated group for human remains or
4 funerary objects, the state archaeologist shall determine the appropri-
5 ate disposition of such remains or objects.
6 (h) Penalties. (1) Any person who fails to report the discovery of a
7 burial site, human remains or funerary objects as required by paragraph
8 (d) of this section shall be guilty of a class B misdemeanor, as defined
9 in the penal law.
10 (2) Any person other than the state archaeologist, or a person or
11 group with a right of possession or stewardship pursuant to this
12 section, or a designee thereof, who intentionally removes human remains
13 or funerary objects from a burial site shall be guilty of a class A
14 misdemeanor, as defined in the penal law.
15 (3) Any person who defaces or destroys a burial site, human remains or
16 funerary objects, or who possesses human remains or funerary objects
17 with intent to sell such remains or artifacts, or who sells or attempts
18 to sell human remains or funerary objects, shall be guilty of a class E
19 felony, as defined in the penal law.
20 (i) Enforcement. The attorney general or any aggrieved party, includ-
21 ing the committee and any lineal descendant or culturally-affiliated
22 group, may bring an action in supreme court in the judicial district
23 where the remains or objects covered by this section are located to
24 enjoin violations or threatened violations of this section, and to
25 recover such remains or objects, and in the case of an aggrieved party,
26 compensatory and punitive damages for such violation.
27 § 5. Section 235 of the education law is amended to read as follows:
28 § 235. State science service. There shall be maintained in the
29 university a science service which shall be known as the state science
30 service and the state geologist, paleontologist, botanist [and], ento-
31 mologist, and archaeologist shall constitute its staff together with
32 such other scientists as the regents may employ or who are now employed
33 by them. This service is empowered and directed to make available its
34 services to all the departments of the state, and the residents of the
35 state under such rules and regulations as the regents may prescribe and
36 is empowered to engage in such scientific research as directed by law or
37 by the regents and shall cooperate with scientific units or agencies of
38 other states, the federal government, educational institutions and
39 industry in the discovery, analysis and dissemination of scientific
40 information. The director of the state museum shall also be the direc-
41 tor and head of the state science service and the staff of the service
42 shall be members of the staff of the state museum.
43 § 6. Section 14.09 of the parks, recreation and historic preservation
44 law is amended by adding a new subdivision 3 to read as follows:
45 3. Prior to the preparation or approval of the final design or plan of
46 any project undertaken by a state agency, or prior to the funding of any
47 project by a state agency, or prior to an action of approval or entitle-
48 ment of any private project by a state agency, the agency's preservation
49 officer shall perform a diligent inquiry to determine whether any aspect
50 of the project may or will effect a disturbance of a known or suspected
51 burial site for which a culturally-affiliated Native American tribe,
52 group or lineal descendent can be identified. The terms "burial site",
53 "culturally-affiliated" and "Native American tribe" shall have the same
54 meanings as ascribed to such terms in paragraph (a) of section fifteen
55 hundred eighteen of the not-for-profit corporation law. In such event
56 such officer shall notify such Native American tribe and the Native
A. 5837 6
1 American burial site review committee established by section fifteen
2 hundred eighteen of the not-for-profit corporation law and consult with
3 the tribe and such committee to determine how to avoid such disturbance.
4 § 7. This act shall take effect on the first of January next succeed-
5 ing the date on which it shall have become a law.
