Protecting Heritage - Archaeology and History
Concerning Reburial and Repatriation of Human Remains and Sacred Objects
New Mexico, Colorado, Arizona, Utah
Code:
New Mexico Statutes Annotated (N.M. Stat. Ann.)
State Archeologist: § 18-6-15
Historic Agency: § 9-6-9; § 18-6-4
Register: §§ 18-6-5B et seq.
Survey/Inventory: § 18-6-7
Authority to Promulgate Rules/Regulations: § 18-6-5F; § 18-8-8
Obligation to Report Discoveries: § 18-6-10C(3); § 18-6-11.2(C)
Confidentiality of Site Location/Information: § 18-6-11.1
Permit to Conduct Field Investigations: § 18-6-9(B); § 18-6-50
Land: § 18-6-10C(5); § 18-6-11
Submerged Lands:
Acquisitions: §§ 18-6 to -6D; §18-6-10C; § 18-8-4
Real Property: § 18-6-9
Artifacts: § 18-10-3; § 18-6-9
Gifts: § 18-6-6C; § 18-6-10C(2)
Curation: § 9-6-9; §18-6-5 & -6
Education: § 18-6-5(M); § 18-6-16
Commercial Restrictions: § 18-6-10a
Burials: §18-6-11.2
Excavation prohibited:
Reinterment:
Activity on Private Lands: § 7-2-18.2; § 18-6-10(A)
Penalties Provided by Protection Statute(s):
Civil: §18-8-7
Criminal: § 30-15-6; § 30-12-12; §§ 18-6-9c to 11e;
§ 18-6-9b
Native Involvement: § 28-12-4
Consultation:
Appointment to State Agency/Commission: § 28-12-4
Miscellaneous: § 30-15-5 (caves); § 30-33-9 (Indian arts and crafts);
§§16-4-1 et seq. and §§ 16-5-1 et seq. (scenic railroads - narrow gauge)
Citation: Permits Required for Excavation of Unmarked Burials (NM Stat. Ann. §18-6-11.2); Endowed Care Cemetery Act (New Mexico Statutes Annotated, NM Stat. Ann. §30-12-12 Criminal Codes, NM Stat. Ann. §58-17-1).
Date Enacted: 1989
Summary: The law protects unmarked human burials including artifacts
and human remains. Permit
requirement for excavation of unmarked burials and penalties were added to the
statute in 1989. Upon discovery human remains, the disturbing activity
ceases and the local law enforcement agency
is notified, who then notifies the medical examiner and State Historic
Preservation Officer. Permits to
excavate the unmarked human burial are issued by the Cultural Properties Review
Committee within 60 days of application. The application must include plans for
disposition or reinterment of the human
remains and objects. Permits for excavation of human burials discovered during
construction or land
modification will be issued by the committee in consultation with the State
Archaeologist and SHPO. Permits will also be issued on an annual basis to
professional archaeological consultants and organizations. When the committee
requires as a condition of the permit any object or artifact associated with a
human burial be reinterred or disposed of, that burial will become the property
of the person owning the land on which the artifacts or remains are discovered.
It is a 4 th Degree felony to knowingly, willingly or intentionally excavate,
remove, disturb or destroy, without a permit, any human burial on state or
private property. Fines will not exceed $5,000 or imprisonment for 18 months or
both. The offender will forfeit all objects, artifacts and human remains to the
state.
Jurisdiction: All state and private lands in New Mexico.
Areas Covered Under Act: All unmarked human burials and associated artifacts.
Ownership: Violations of the permitting process forfeit remains and objects to the state, otherwise the landowner.
Review/Consultation Committee: State Archaeologist and State Historic Preservation Officer must consult with the Cultural Properties Review Committee.
Liable: Anyone who knowingly, willingly and intentionally excavates, removes, disturbs or destroys, without a permit, any human burial on state or private property.
Penalties: Violations are a 4th Degree felony with maximum fine up to $5,000 or 18 months imprisonment, or both.
Exemptions: Not specified.
Permitting: Permits issued by the Cultural Properties Review
Committee.
The only case law on these statutes is mentioned in the law review note below.
The annotated code lists one law review note pertaining to this section - Cultural Properties Act - Turley v. State and the New Mexico Cultural Properties Act: A Matter of Interpretation, 13 N.M. L. Rev. 737 (1983). It comments on State v. Turley, 96 N.M. 579, 633 P. 2d 687, which interpreted a section of New Mexico's Cultural Properties Act. The note has some legislative history. The court held that the section of the act which allows a private land owner to excavate on his own property also includes an agent of the owner. The author thinks that the NM Supreme Court misinterpreted the statute by opening this exception too far, beyond the legislative intent and the meaning of the statute as a whole.
Colorado
Code:
Colorado Revised Statutes (Colo. Rev. Stat.)
State Archeologist: § 24-80-403 to -405
Historic Agency: § 24-80-402
Register: §§ 24-80.1-101 et seq.
Survey/Inventory: § 24-80-405(d); § 24-80-502
Authority to Promulgate Rules/Regulations: §§ 24-80-402 et seq.
Obligation to Report Discoveries: § 24-80-1302 (burials)
Confidentiality of Site Location/Information: § 24-80-405(g)
Permit to Conduct Field Investigations:
Land: §§ 24-80-406 et seq.
Submerged Lands: § 24-80-401
Acquisitions: § 24-80-405(a), (e) & (j)
Real Property: § 24-80-401; 24-65.1-101 et seq.
Artifacts: § 24-80-401(1)
Gifts:
Curation: § 24-80-405(e) & (h)
Education: § 24-80-405(b) & (i)
Commercial Restrictions: § 18-5-110 (forgeries)
Burials: § 24-80-411; §§ 24-80-1301 et seq. (in case of conflict of
laws, § 1301 et seq. controls)
Excavation prohibited: § 24-80-1302
Reinterment: § 24-80-1302(f); §24-80-1303(b)(3)
Activity on Private Lands: § 24-80-408; § 24-80-1302(4)(b) & (d)
Penalties Provided by Protection Statute(s):
Civil: § 24-80-409 (forfeiture)
Criminal: § 24-80-409; § 18-9-113; § 18-5-110; §
18-4-509; 24-80-801; 24-80-1202
Native Involvement:
Consultation: § 24-80-1303(3)
Appointment to State Agency/Commission: §
Miscellaneous: § 24-80-1201 & -1202 (ghost towns); § 24-80-801 &
802 (Santa Fe Trail); §39-1-104(5) & 39-22-514 (tax incentives)
Citation: Historical, Prehistorical and Archaeological Resources (Colorado Rev. Stat. §24-80-401, et seq.).
Date Enacted: Repealed and reenacted in 1973, amended 1990, 1991, 1995.
Summary: Section 13 of the Historical, Prehistorical and
Archaeological Resources Act establishes a procedure with regard to unmarked
human graves. Upon discovery of human remains, the coroner and sheriff, police
chief or land managing official are notified and have 48 hours to determine if
forensic study is necessary. If not, the coroner contacts the state
archaeologist who determines if the remains are over 100 years old and if they
are Native American. The Indian Commission is notified if the remains are Native
American. Excavation of remains takes place unless all parties agree unanimously
to leave them in situ. The State Archaeologist has 10 days to complete the
excavation and assumes custody of the remains. Analysis is allowed for up to one
year. The State Archaeologist consults with the Indian Commission on reinterment
and pays for the disinterment and analysis of remains from state lands and of
remains from private lands, if no one else is willing. If human remains are
discovered during an anthropological investigation, the archaeologist will
determine the age and, if possible, cultural affiliation. If the remains are
less than 100 years old, the coroner is notified; if the remains are over 100
years old, the State Archaeologists is notified.
Anyone who knowingly disturbs an unmarked human burial
commits a Class 1 misdemeanor; any person who has knowledge that an unmarked
human burial is being unlawfully disturbed and fails to notify the local law
enforcement official commits a Class 2 misdemeanor. Any person who discovers on
any land suspected human skeletal remains or who knowingly disturbs such remains
must immediately notify the coroner of the county wherein the remains are
located and the
sheriff, police chief, or land managing agency official.
Jurisdiction: Unmarked human graves on all state, local and private lands, including submerged lands.
Areas Covered Under Act: All burials and associated remains located on state and private lands.
Ownership: State owns resources on state lands.
Review/Consultation Committee: Commission of Indian Affairs must be consulted.
Liable: Anyone, including an individual, corporation, or government entity, who knowingly disturbs or has knowledge of an unmarked grave being disturbed is in violation of this Act is liable.
Penalties: Disturbing an unmarked burial is a Class 1 misdemeanor; failure to report a disturbance of an unmarked human is a Class 2 misdemeanor. Prison terms from three months to two years and fines of $500 to $5,000 may be assessed.
Exemptions: Not specified.
Permitting: Permits are required for excavation on state lands and are
issued by the State
Historic Society. The Office of Archeology and Historic Preservation
within that agency issues permits.
There is no case law on these statutes.
The web site of the Colorado Historical Society's Office of State Archaeologist is found at - http://www.coloradohistory-oahp.org/programareas/osa/osa.htm. Under the provisions of state law, the State Archaeologist responds to the discovery of unmarked human burials during the course of archaeological excavations, construction work, or other ground disturbing activities. Program staff work with citizens to resolve potentially conflicting concerns between development, scientific research, and respectful treatment of identified burials. (Contact: Susan Collins (303) 866-2736))
Citations:
Code: Arizona Revised Statutes Annotated (Ariz. Rev. Stat. Ann.)
State Archeologist:
Historic Agency: § 41-1352; § 41-821
Register: § 41-511.04(A)(9); § 41-862; § 41-511.04(B)(2)
Survey/Inventory: § 41-511.04(B)(1)
Authority to Promulgate Rules/Regulations: § 41-842; § 41-511.04(A)(11)
Obligation to Report Discoveries: § 41-861 & 862; § 41-844
Confidentiality of Site Location/Information:
Permit to Conduct Field Investigations:
Land: § 41-842 & 843
Submerged Lands: § 41-841
Acquisitions:
Real Property: § 41-821
Artifacts:
Gifts: § 42-139.01 to .03 (tax incentives)
Curation: § 15-631; § 41-844
Education: § 41-847(E)(2) & (5)
Commercial Restrictions: § 41-845
Burials: § 41-844; §41-865
Excavation prohibited: § 41-841(A)
Reinterment: § 41-844(E) & (G)
Activity on Private Lands: § 41-847 (E)(4)
Penalties Provided by Protection Statute(s):
Civil:
Criminal: § 13-3702, 3702.01; § 13-707; § 3-906.01;
§ 41-846
Native Involvement: § 44-123 et seq.
Consultation: § 41-844; § 41-865
Appointment to State Agency/Commission:
Miscellaneous: § 13-3702 (caves); § 41-845 (unlawful reproduction of
original archeological specimen); § 41-3004.01 (Archeology Advisory Commission
extended to 1/1/2005)
Citation: Discovery of Human Remains, Sacred Ceremonial Object, Object of National and Tribal Patrimony (Arizona Rev. Stat. §41-844); Disturbing Human Remains or Funerary Objects on Lands Other Than State Lands (Arizona Rev. Stat. §41-865).
Date Enacted: 1990
Summary: In 1990, Arizona passed two laws specifically dealing with
the protection of human
burials and associated grave goods on state and private lands. The Discovery of
Human Remains,
Sacred Ceremonial Object, Object of National and Tribal Patrimony Act addresses
protection of sacred and ceremonial objects on state lands or in the possession
of the state. Under this statute, upon discovery of human remains over 50 years
old, the project supervisor has three days to notify the Arizona State Museum.
Click here to notify the Arizona State Museum - http://w3.arizona.edu:180/asm/arch/arclaws.html.
The preferred option is to leave the remains undisturbed. If the remains must be
excavated, the State Museum has six months for study and to convene a meeting to
determine disposition. Reburial is required of human remains and
associated objects from state lands. Objects that are scientifically important
may be retained for study for up to one year. For sacred or ceremonial objects,
the tribe's decision will be respected. The project supervisor responsible for
the discovery is obligated to pay repatriation and reburial costs. A process is
established for dispute resolution under which native groups may petition for
return of artifacts of importance held by state institutions.
The second statute, Disturbing Human Remains or Funerary
Objects on Lands Other Than State
Lands, requires the landowner to notify the Arizona State Museum of the
discovery of human remains or of the intent to disturb a known burial site. The
museum will encourage the landowner to protect the site from further disturbance
but if this is not possible, the museum and landowner will attempt to reach
agreement for recovery of the remains. If no agreement can be reached, the
landowner must allow at least 10 days for the museum to notify the appropriate
tribal groups. For remains removed from private lands, the museum has six months
to notify native groups and researchers. If no claims are made, the museum will
rebury the remains within one year or store them for later repatriation. The
landowner is encouraged to assist in paying for excavation and reburial of
material from private lands, but is not required to do so. In these cases, the
museum will pay. The law further prohibits the sale of human remains or
associated grave goods.
Jurisdiction: State lands, private lands and collections held in state institutions.
Areas Covered Under Act: All human burials at least 50 years old and
associated grave
goods located on state or private lands and sacred objects held in state
institutions
Ownership: For state lands, the project supervisor is responsible for
remains until
disposition. For remains on private lands, the museum is responsible for
excavation and
reburial.
Review/Consultation Committee: Consultation is done a case by case basis.
Liable: Anyone who violates provisions of the law.
Penalties: Unauthorized excavation of sites is a felony with up to 5 years in jail and fines of up to $150,000; Misdemeanor penalties include fines of $2,500 and up to six months in jail.
Exemptions: Not specified.
Permitting: Permits are required for excavation of archaeological, historic, and paleontological resources, including burials, on state lands. Permits are issued by the Director of the Arizona State Museum.
Cases and Secondary Sources:
There is no case law on these statutes. The Arizona Attorney General has issued one opinion, No. 74-13, stating that state school trust lands qualify as state lands within the meaning of the statutes prohibiting excavation of state lands without a permit.
The Arizona State Museum: ASM has a Web page which summarizes Arizona's law. ASM also assists individuals or companies who find Native American human remains or ritual objects which may fall under the law. They have a contact person who will answer questions and facilitate contact between the finders and the Native American groups which may have a claim to the objects.
Sherry Hutt, Native American Cultural Property Law,
34 Arizona Attorney 18 (Jan. 1998)
The author, a judge in the Superior Court of Arizona,
Maricopa County, discusses the cultural property rights of Native Americans.
She points out while common law principles in theory are adequate to protect
such cultural property rights, in practice courts have failed. She cites
several cases in which state courts afforded no protection to Native Americans,
even in one particularly egregious case in 1964 when a Florida court overturned
a man's conviction for grave defacement for the removal of a skull and other
items from a Seminole Indian's two year old grave. The author provides
some background for the wave of legislation in almost every state from 1988 to
1990 to amend their laws to provide more adequate protection for Native American
cultural property rights. Judge Hutt also summarizes the major provisions
of Arizona and Federal law (i.e., ARPA and NAGPRA) on the issue.
Paul Bender, 1990 Arizona Repatriation Legislation,
24 Arizona State Law Journal 391 (Spring 1992)
The author, a professor of law at Arizona State University,
discusses the legislative history and provisions of the 1990 amendments to
Arizona's Antiquity Act, which established the statutory protection of Native
American human remains, funerary objects, sacred ceremonial objects, and objects
of national or tribal patrimony (all of which must be fifty years or older to
fall under the protection of the statute). The statute only applies to
lands owned or controlled by the state. The author collaborated with the
Cultural Resources Working Group of the Inter Tribal Council of Arizona, an
association of twenty Arizona tribal governments, to draft the legislation.
This article has the most comprehensive explanation of Arizona's laws protecting
items of Native American cultural patrimony.
Burial Agreements & Services - 520-626-5579
Curation & Repository Agreements - 520-626-9109
NAGPRA - 520-621-4795
Permits - 520-621-4795
Repatriation - 520-621-4795
- Conservation Technical Reports
- Human Burials on Private Lands
- Human Burials on State Lands
- Human Burials on Federal Lands
- NAGPRA
- Objects of Cultural Patrimony
Registration - 520-6216-8742
- Accession Assignments
- Exhibit Loans
- Research Loans
- Transfer of Human Remains
Citations:
Code:
Utah Code Annotated (Utah Code Ann.)
State Archeologist: § 9-8-305
Historic Agency: § 9-8-303; § 9-8-201 & -207
Register: § 9-8-402
Survey/Inventory: § 9-8-203; 9-8-305
Authority to Promulgate Rules/Regulations: § 63-46c-1; §§ 9-8-201, -203
& -303
Obligation to Report Discoveries: § 9-8-307; § 9-9-403(4)
Confidentiality of Site Location/Information: § 63-2-304(25) & (26)
Permit to Conduct Field Investigations: § 9-8-305
Land: § 9-8-306
Submerged Lands:
Acquisitions: § 7A-3-1301; §§ 17A-3-1304 & -1305; §§ 9-8-303,
-304 & -305; § 9-8-207
Real Property: § 9-8-504
Artifacts: § 63-11-56
Gifts: § 9-8-506; 9-8-207
Curation: § 53B-17-601 to -603; §9-8-305
Education: § 9-8-203; 9-8-304
Commercial Restrictions: § 9-9-404; § 9-9-305
Burials: §§ 9-9-401 et seq.; 76-9-704
Excavation prohibited: § 9-9-305
Reinterment: § 9-8-176
Activity on Private Lands: § 9-8-306 & -307
Penalties Provided by Protection Statute(s):
Civil: § 65A-3-1
Criminal: § 9-8-305(5); 9-9-404; § 76-6-902; §
65-A-3-1
Native Involvement: § 9-9-402; 9-9-406
Consultation: § 9-9-403
Appointment to State Agency/Commission: § 9-9-405
Miscellaneous: § 9-8-503 (protection easements); §§ 17A-3-1301
(Historic Districts Act, giving power to counties/cities/towns to protect
historic and prehistoric resources)
Citation: Native American Grave Protection and Repatriation Act (Ut Code Ann. §9-9-401, et seq.).
Date Enacted: 1992, minor revisions in 1996, Major revision 2006
Summary: Utah's law is very similar to the federal Native American Graves Protection and Repatriation Act. It protects burial sites on state and private lands that have human remains. The ownership or control of Native American remains that are excavated or discovered on state lands are turned over to the lineal descendants of the Native Americans, if practicable, or to the Indian tribe that has the closest cultural affiliation with the remains and states a claim for the remains. If the tribe with closest cultural affiliation cannot be ascertained the tribe that is recognized as aboriginally occupying the area in which the remains are discovered, if a claim is filed. Unclaimed remains will be disposed of in consultation with Native American groups and other interested organizations. The intentional removal or excavation of Native American remains from state lands may be permitted, only if the remains are excavated or removed under the terms established in a permit and remains from private lands are excavated with the written consent of the landowner. If remains are discovered inadvertently during construction, agriculture, mining, etc., the activity ceases and the state agency with primary management responsibility is notified until experts can determine cultural affiliation. Scientific study for up to 90 days may be done with approval of owner (descendant, tribal group or aboriginal tribe). In cases with conflicting ownership claims, the state agency will retain the remains until a court decision is made. Any person who knowingly sells, purchases, uses for profit, or transports for sale the remains of a Native American is guilty of a Class A misdemeanor. A second or third offense is guilty of a third degree felony. A seven member Native American Review Committee monitors the identification process, reviews any finding related to the identity or cultural affiliation of remains or their return, facilitates the resolution of disputes between tribes, lineal descendants, and state agencies relating to the return of remains, consults with Indian tribes, and makes recommendations, if appropriate, regarding future care of remains that are to be repatriated. Any person who discovers any archeological resources on lands controlled by the state, its subdivisions, or private lands shall promptly report the discovery to the appropriate state agency.
Jurisdiction: All state and private lands.
Statute of Limitations: Not specified.
Areas Covered Under Act: Unmarked graves on state and private lands.
Ownership: State agency with jurisdiction for the land.
Review/Consultation Committee: Native American Remains Review Committee is established and must be consulted.
Liable: Anyone who knowing sells, buys, uses for profit or transports
for sale Native American
remains without the right of possession is guilty of a Class A misdemeanor.
Penalties: All fines and imprisonment in the criminal code associated with a Class A misdemeanor.
Exemptions: Not specified.
Permitting:
There is no case law on these statutes.
The web site of the Utah state agency in charge of archeology on state lands can be found here - http://history.utah.gov/
http://history.utah.gov/archaeology/index.html
Comment, Preserving Utah's Cultural Resources: A Proposal for New Legislation, 10 J. Energy L. & Policy 93 (1989). Commentary in regards to archeological landmarks. May provide some insight into legislative history.
Jack M. Morgan, Jr., Recent Developments in Utah Law: Antiquities Protection Act, 1993 Utah L. Rev. 327, discusses the provisions of Utah's state version of NAGPRA. It originated as Senate Bill No. 128. The article gives a a brief account of its legislative history. It also gives a fairly extensive commentary on the provisions of the statute itself.
Native American Graves Protection and Repatriation Act (PL 101-601; 25 USC 3001) NAGPRA
Implementing regulations are at 43 CFR Part 10. establishes a systematic process for determining the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony with which they are affiliated.
1996 Executive Order 13007, Indian Sacred Sites, May 24, 1996 (61 FR 26771): instructs agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites
American Indian Religious Freedom Act (PL 95-341; 92 Stat 46a; 42 USC 1996)
declared "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including, but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites."AIRFA protects the rights of Native Americans to exercise their traditional religions by ensuring access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.