§ 41-865 — Disturbing human remains or funerary objects; rules; violation; classification; definitions

A. A person shall not intentionally disturb human remains or funerary objects on lands, other than lands owned or controlled by this state, any agency or institution of this state or any county or municipal corporations within this state, without obtaining the written permission of the director of the Arizona state museum.

B. A person who unintentionally disturbs human remains or funerary objects on lands, other than lands owned or controlled by this state, any agency or institution of this state or any county or municipal corporations within this state, shall report the disturbance to the director and shall not further disturb the remains or objects without obtaining the written permission of the director.

C. Within one year after the effective date of this section, the director shall adopt rules relating to reporting procedures, procedures to request permission to disturb human remains and funerary objects and the standards to be used for granting permission to disturb human remains and funerary objects. These rules shall:

1. Require the director to respond within ten working days to all requests for permission to disturb. During this ten working day period the director or his designee shall inspect, if appropriate, the site of the proposed disturbance. If the director does not respond to a request to disturb within ten working days, his failure to respond to the request is deemed permission to proceed.

2. Require the respectful treatment of all human remains and funerary objects.

3. Minimize the disturbance of human remains and funerary objects and, if disturbance is necessary, provide for reburial at an appropriate site or provide for other appropriate relocation.

4. Require consultation with representatives from the scientific community and groups with a cultural affinity regarding the treatment and protection of human remains and funerary objects.

5. If Native American human remains or funerary objects are involved, give the governing body of the group with a cultural affinity the authority to take responsibility for the remains or objects and to determine the most appropriate treatment or disposition of them pursuant to subsection E. In no event shall this state or any group, individual or entity benefit financially from the sale of any human remains or funerary objects removed from private property.

6. Fully protect the constitutional rights of property owners.

D. Before the adoption of rules pursuant to subsection C, the director shall respond to such requests within ten working days.

E. If the director or a group with a cultural affinity in consultation with the landowner determines that human remains or funerary objects shall be preserved in place, moved or reburied, any costs required by these actions may be borne either wholly or partially by the landowner. If the landowner is unwilling or unable to bear the costs required, the acquisition and preservation fund shall bear the full cost of removal. A group or institution taking responsibility for these remains or objects shall bear the cost of their preservation or reburial. If there are insufficient monies in the acquisition and preservation fund, or if the director is unable or unwilling to allocate monies for the removal and no other source is available to pay for removal within the ten working day period, the landowner, the lessee or the landowner's or lessee's agent may proceed with work on a construction project or similar project without violating the provisions of subsection A or B. The removal of all remains and objects under this subsection shall take place within ten working days of the request for the permission to disturb unless the owner of the property where the remains or objects are located agrees to an extension of this period.

F. If it is necessary to move the object before completion of the proceedings prescribed by this section in order to permit the continuation of work on a construction project or similar project, the director shall require that the move be accomplished in the manner that will least disturb and best preserve the remains or the objects.

G. A person who intentionally possesses, sells or transfers any human remains or funerary objects that are excavated or removed in violation of subsection A or B is guilty of a class 5 felony. On conviction the person forfeits to the Arizona state museum all human remains, funerary objects and other artifacts removed in connection with the violation of subsection A or B and all proceeds from the sale of these remains, objects or artifacts.

H. A person who otherwise intentionally violates subsection A or B is guilty of a class 1 misdemeanor. On conviction the person forfeits to the Arizona state museum all human remains, funerary objects and other artifacts removed in connection with the violation of subsection A or B.

I. The state agrees to indemnify and hold harmless landowners, lessees or their agents who seek permission under this section from any accidents, injuries or losses caused by state employees or their designees as a result of this section.

J. For the purposes of this section:

1. "Director" means the director of the Arizona state museum.

2. "Funerary object" means an object discovered in close proximity to human remains and interred with the remains.

3. "Group" includes American Indian tribes.

4. "Group with cultural affinity" means any group that has cultural affinity with the human remains or funerary objects in light of all of the relevant evidence.

5. "Human remains" means any remains of a human being who died more than fifty years before the remains are discovered.

6. "Tribe" means any federally recognized tribal government.