§ 171 — Discovery and disposition of human remains and funerary objects

New York § 171

• Jurisdiction: New York
• Law EXC: Executive
• Art. 7: Miscellaneous Provisions

Text

§ 171. Discovery and disposition of human remains and funerary\nobjects. 1. Definitions. As used in this section:\n (a) "Burial site" means any location in which human remains are\ninterred, which is not a cemetery subject to provisions of the\nnot-for-profit corporation law, the religious corporations law, the\ngeneral municipal law, the county law, the town law or the village law.\n (b) "Committee" means the Native American burial site review committee\ncreated by subdivision three of this section.\n (c) "Culturally-affiliated group" means any group, including a Native\nAmerican Nation or tribe, whose past or present government, or\ntraditional culture or religion, was or is affiliated with human remains\nor funerary objects which are the subject of this section.\n (d) "Forensic anthropologist or bioarchaeologist" means a person\nqualified in the medicolegal or osteological investigation/examination\nof human skeletal remains.\n (e) "Funerary objects" means any item or items reasonably believed to\nhave been placed with human remains at the time of burial, including but\nnot limited to burial markers, items of personal adornment, vessels,\nbeads, tools, implements, ceremonial objects and other artifacts.\n (f) "Human remains" means the remains of any part of the body of a\ndeceased person, excluding teeth.\n (g) "Lineal descendant" means a genealogical descendant established by\noral tradition, traditional Indigenous knowledge, or written record.\n (h) "Native American Nation or tribe" means any Native American tribe,\nnation or group.\n (i) "State archaeologist" means the person appointed to such office\npursuant to section two hundred thirty-five of the education law.\n 2. Applicability. (a) This section shall apply to all lands within the\nstate except for lands located upon any Native American territory or\nreservation located wholly or partly within the state.\n (b) Subdivisions three, four, five, six, and seven of this section\nshall not apply to any project that has been reviewed pursuant to\nsection 14.09 of the parks, recreation, and historic preservation law or\nto state participation in any review conducted pursuant to section 106\nof the National Historic Preservation Act. If any human remains are\ndiscovered during the project, the applicant shall immediately notify\nthe state archaeologist.\n 3. Native American burial site review committee. (a) There is hereby\nestablished a Native American burial site review committee consisting of\nthe following:\n (i) one member to be appointed by each of the Native American Nations\nor tribes recognized by the state;\n (ii) the state archaeologist;\n (iii) a forensic anthropologist or bioarchaeologist appointed by the\nexecutive director of the New York state museum;\n (iv) the chair of the human remains committee or other designee of the\nNew York Archaeological Council; and\n (v) one member with expertise in the field of historic preservation\nappointed by the commissioner of the office of parks, recreation and\nhistoric preservation.\n (b) The committee shall elect a chairperson from among its members.\nThe members who are not public employees shall be reimbursed by the\nstate for their reasonable, necessary expenses incurred in the\nperformance of committee functions. Three-fifths of the members of the\ncommittee shall constitute a quorum for the purpose of conducting\nbusiness. A majority vote of all members who have been appointed or who\nare serving ex-officio shall be necessary for action. Any vacancy shall\nbe filled in the same manner as the original appointment.\n (c) It shall be the function of the committee to determine the lineal\ndescendants and/or culturally-affiliated groups for Native American\nhuman remains and funerary objects subject to this section, and to\nprovide notice to such descendants and/or groups as provided in this\nsection. The state archaeologist shall prepare, and the committee shall\nadopt, standard procedures for determining the lineal descendants and\nculturally-affiliated groups for human remains as required by this\nsection, including acceptable types of proof of such descent and\naffiliation. Such procedures shall include dispute resolution methods to\nresolve disagreements among the committee members.\n 4. Discovery of burial site; reporting requirements. (a) Any person\nwho in the course of any ground-disturbing activity discovers a burial\nsite, human remains or funerary objects shall immediately cease any\nfurther disturbance of such site, remains or objects, and shall\nimmediately report such discovery to the coroner or medical examiner in\nthe county in which the remains were discovered. The coroner or medical\nexaminer shall, within ninety-six hours, determine whether any actions\nare required pursuant to the provisions of article seventeen-A of the\ncounty law. If any such remains appear to the coroner or medical\nexaminer to be more than fifty years old, the coroner or medical\nexaminer shall immediately provide notice of the discovery of such\nremains to the state archaeologist, who shall in turn convey such notice\nto the other members of the committee. If no action is required under\narticle seventeen-A of the county law, or once such actions are\nundertaken and no further action is required, the state archaeologist\nand the committee may commence their inspection or examination of the\nremains or objects. Any inspection or examination shall be made in situ\nexcept as necessary to comply with such article seventeen-A, this\nsection, or to determine the age of the remains. The state archaeologist\nand the committee may use ground penetrating radar or other pertinent\ntechnology or equipment on any portion of the project site that has yet\nto be disturbed to determine if any other remains exist within the\nproject site.\n (b) The state archaeologist, or a registered archeologist or\nregistered professional archeologist as may be designated by the state\narchaeologist, shall, upon receiving notice from a coroner or medical\nexaminer of the discovery of human remains, inspect the site, remains\nand/or objects which are the subject of such notice. Within ten days of\nreceiving such notice, the state archaeologist shall prepare a report\nthereon and provide a copy of the report to the committee and to the\nproperty owner. The report shall be based upon physical examination of\nthe discovered burial site, remains and/or objects, and shall contain\nthe state archaeologist's conclusion as to whether such site, remains\nand/or objects may be of Native American origin. In the event the state\narchaeologist determines there is a reasonable possibility the site\ncontains multiple remains, an additional period of ten days may be\nprovided for assessment by the state archaeologist in consultation with\nthe culturally-affiliated group to determine the parameters of the site.\nIn preparing the report, the state archaeologist may seek and obtain\nassistance from any employee of the regents, from the committee, and\nfrom the office of parks, recreation and historic preservation.\n (c) The committee may recommend to the office of parks, recreation,\nand historic preservation that the site should be designated as a place\nof historic interest under section twelve-a of the Indian law.\n 5. Determination of and notification to lineal descendants or\nculturally-affiliated groups. (a) If the state archaeologist, the\nforensic anthropologist or bioarchaeologist, and the committee agree\nthat the burial site does not wholly or partly contain human remains or\nfunerary objects that are of Native American origin, it shall be the\nresponsibility of the state archaeologist to determine, as soon as\npracticable, whether there are any reasonably ascertainable lineal\ndescendants or culturally-affiliated groups with respect to such site,\nremains or objects and, immediately upon making such determination, to\nprovide notice to such descendants or groups of the reported discovery.\n (b) If the state archaeologist, the forensic anthropologist or\nbioarchaeologist, and the committee agree that the burial site wholly or\npartly contains human remains or funerary objects that may be of Native\nAmerican origin, it shall be the responsibility of the committee to\ndetermine the lineal descendants or culturally-affiliated groups. Such\ndetermination shall be made as soon as practicable after the committee\nreceives a report from the state archaeologist concerning the burial\nsite. Immediately upon making such determination, the committee shall\nprovide notification to such descendants or groups of the reported\ndiscovery.\n (c) The committee shall have stewardship of Native American human\nremains and funerary objects from the time it receives notification from\nthe state archaeologist pursuant to subdivision four of this section\nuntil the lineal descendants and/or culturally-affiliated groups receive\nnotification from the committee pursuant to this subdivision, at which\ntime such lineal descendants and/or culturally-affiliated groups shall\nhave the right of possession and stewardship of such remains and\nobjects. Upon notification to such lineal descendants or\nculturally-affiliated groups pursuant to this subdivision, ownership of\nand responsibility for the human remains and funerary objects shall vest\nexclusively in such descendants or groups, which shall have authority to\ndetermine their disposition subject to the provisions of this section.\n (d) The state archaeologist shall have stewardship of non-Native\nAmerican human remains and funerary objects from the time he or she\nreceives notification from the coroner or medical examiner pursuant to\nsubdivision four of this section until the lineal descendants and/or\nculturally-affiliated groups receive notification from the state\narchaeologist pursuant to this paragraph, at which time such lineal\ndescendants and/or culturally-affiliated groups shall have the right of\npossession and stewardship of such remains and objects. Upon\nnotification to such lineal descendants or culturally-affiliated groups\npursuant to this subdivision, ownership of and responsibility for the\nhuman remains and funerary objects shall vest exclusively in such\ndescendants or groups, which shall have authority to determine their\ndisposition subject to the provisions of this section.\n (e) Where a burial site contains both Native American and non-Native\nAmerican human remains or funerary objects, the committee shall be\nresponsible for the Native American burials at the site, and the state\narchaeologist shall be responsible for all other burials at the site.\nOnce stewardship of each is determined, the procedures established in\nparagraphs (c) and (d) of this subdivision shall apply.\n 6. Disposition of remains and objects. (a) Within ten days after\nreceiving notification from the state archaeologist to lineal\ndescendants or a culturally-affiliated group, other than a Native\nAmerican Nation or tribe, of the discovery of a burial site, the\ndescendants or group shall advise the state archaeologist in writing as\nto the preferred disposition of the discovered remains or objects, which\nmay include a request to protect the burial site and keep the remains\ninterred where they were found. The state archaeologist shall consult\nwith the property owner to try to facilitate the request of the lineal\ndescendants or culturally-affiliated group.\n (b) Within sixty days after receiving notification from the committee\nto a lineal descendant or culturally-affiliated group of the discovery\nof a burial site, the descendants or group shall advise the committee in\nwriting as to the preferred disposition of the discovered remains or\nobjects, which may include a request to protect the burial site and keep\nthe remains interred where they were found. The committee shall consult\nwith the property owner to try to facilitate the request of the lineal\ndescendants or culturally-affiliated group.\n (c) No later than ten days after receiving the report from the state\narchaeologist pursuant to subdivision four of this section, the property\nowner shall inform the state archaeologist of their decision with\nrespect to the interment of the remains on their property. The report\nfrom the state archaeologist to the property owner shall clearly include\nthat the property owner has ten days to notify the state archaeologist\nof their decision. If a property owner fails to notify the state\narchaeologist of their decision, the state archaeologist or the\ncommittee, as appropriate, shall abide by the decision of the lineal\ndescendants or culturally-affiliated group.\n (d) Only the state archaeologist, a registered archaeologist, or a\nregistered professional archaeologist may touch or handle any remains or\nfunerary objects.\n 7. Disposition of human remains and funerary objects, generally. (a)\nThe property owner, their agents, assignees, employees, family members,\nfriends, acquaintances, or any other individuals acting on behalf of\nsuch property owner, other than the state archeologist or a registered\narcheologist or a registered professional archaeologist hired by the\nproperty owner and acting pursuant to paragraph (d) of this subdivision,\nare strictly prohibited from moving, relocating, transferring, selling,\npossessing, touching, handling, or otherwise intentionally disturbing,\nin any manner, all human remains and funerary objects that are\ndiscovered on site. Except as necessary to carry out the purposes of\nthis section, burial sites, human remains and funerary objects shall\nremain undisturbed after discovery and during the process established by\nthis section.\n (b) While the disposition of the remains shall be determined by the\nlineal descendants or culturally-affiliated group, and the property\nowner, the preferred disposition as a matter of policy is to have the\nremains stay interred where they are discovered.\n (c) (i) If the lineal descendants, or culturally-affiliated group, and\nthe property owner agree that the remains shall stay interred, the\ncommittee or state archaeologist, as appropriate, shall establish a plan\nof action for the preservation and protection of the remains.\n (ii) If the lineal descendants or culturally-affiliated group requests\nthat the remains be excavated and moved to a different location, the\ncommittee or state archaeologist, as appropriate, shall establish and\nimplement a plan of action for the respectful, dignified excavation and\nremoval of the remains.\n (iii) If the lineal descendants or culturally-affiliated group advise\nthat the remains stay interred, but the property owner notifies of their\ndecision, as provided in this section, that the remains should be\nremoved, the committee or state archaeologist, as appropriate, shall\nestablish and implement a plan of action for the respectful, dignified\nexcavation and removal of the remains. Such plan shall not be\ninconsistent with the provisions of this section. The committee or state\narchaeologist may, prior to the execution of the plan of action, consult\nwith the property owner in an attempt to realize the request of the\nlineal descendants or culturally-affiliated group. The committee or\nstate archaeologist may use a mediator, at no cost to the property owner\nunless mediation is requested by the property owner, as part of this\nprocess.\n (d) (i) If the plan of action has not been implemented within ninety\ndays of the notification to the state archaeologist by the coroner or\nmedical examiner pursuant to paragraph (a) of subdivision four of this\nsection, and any additional time provided pursuant to paragraph (b) of\nsubdivision four of this section, the property owner may decide to\nexcavate and remove the remains, provided that they shall engage a\nregistered archeologist or a registered professional archaeologist,\nregistered with the Register of Professional Archaeologists and who\npractices in the field of bioarchaeology or forensic anthropology, to\nexcavate and remove the remains in a respectful and dignified manner\nthat is not inconsistent with the provisions of this section, and\nprovided further that the property owner may request the state\narcheologist to perform any such excavation or removal. The\nculturally-affiliated group shall have the right to have a cultural\nmonitor on site prior to and during any excavation and removal of human\nremains or funerary objects. Failure of the culturally-affiliated group\nto have a monitor on site shall not be grounds to prohibit, prevent, or\npause any excavation, removal, or other conduct as provided in this\nsection.\n (ii) If the plan of action has been substantially implemented but not\ncompleted within the ninety-day period, and any additional time provided\npursuant to paragraph (b) of subdivision four of this section, the\ncommittee or state archaeologist may have one additional ten-day period\nto complete the excavation and removal. The state archaeologist, in\nconsultation with the committee, where appropriate, shall determine\nwhether the plan of action has been substantially implemented.\n (iii) Any excavation and removal caused by the property owner pursuant\nto this paragraph shall be done at the expense of the property owner and\nshall be performed and supervised by the registered archaeologist, or a\nregistered professional archaeologist, hired by the property owner\npursuant to this subdivision, provided that the property owner may\nrequest the state archeologist to complete any such excavation or\nremoval even after the ninety-day implementation period or any\nadditional time provided in this section has expired. The\nculturally-affiliated group may select a cultural monitor to observe the\nwork. Such archaeologist shall review the established plan of action\nwith the state archaeologist or the committee, as appropriate, and act\nin accordance with that plan. For the purposes of this paragraph, only\nthe state archaeologist, as provided in this section, or the registered\narchaeologist or registered professional archaeologist hired to perform\nthe excavation pursuant to this subdivision may have physical contact\nwith or otherwise disturb the remains or burial site.\n (iv) The state archaeologist or committee shall make themselves\navailable to the registered archaeologist or registered professional\narchaeologist forthwith for the purposes of discussing the established\nplan of action for the site. If the state archaeologist or committee\nfails to make themselves available forthwith, the registered\narchaeologist or registered professional archaeologist may proceed with\nthe excavation and removal.\n (v) If no plan of action has been established prior to the expiration\nof the ninety-day period, and any additional time provided pursuant to\nparagraph (b) of subdivision four of this section, the registered\narchaeologist or registered professional archaeologist may proceed with\nthe excavation and removal in a professional, respectful, dignified\nmanner that is not inconsistent with the provisions of this section.\n (vi) Any remains or funerary objects excavated from the site as a\nresult of the implementation of the process established by this\nparagraph shall be deposited with the New York state museum for\ndisposition.\n (vii) Notwithstanding any conflicting provision of this section, the\nstate archeologist may at any time monitor and observe any excavation\nand removal performed pursuant to this section.\n (e) If the state archaeologist and the committee have been unable to\nidentify the lineal descendants or culturally-affiliated group for human\nremains or funerary objects, the state archaeologist shall take\nstewardship of the remains and shall make the recommendation for their\ndisposition in accordance with the provisions of this section.\n (f) Notwithstanding any conflicting provision of paragraph (d) of this\nsubdivision, for project sites that contain the remains of six or more\nindividuals, if the state archaeologist determines that additional time\nis necessary for the excavation of such site, an additional thirty-day\nperiod may be added before the remains can be excavated and removed by\nthe property owner. If the state archeologist continues to find that\nadditional time is necessary, the period before remains can be excavated\nand removed by the property owner may be extended multiple times in\nincrements of thirty days. The state archaeologist must provide a copy\nof each such determination to the property owner in writing. The\nproperty owner may bring an action pursuant to article seventy-eight of\nthe civil practice law and rules to review the determination of the\nstate archaeologist pursuant to this paragraph.\n 8. Penalties. (a) Any person who fails to report the discovery of a\nburial site, human remains or funerary objects as required by\nsubdivision four of this section shall be guilty of a class B\nmisdemeanor, as defined in the penal law.\n (b) Any person other than the state archaeologist, or a person or\ngroup with a right to remove or a right of possession or stewardship\npursuant to this section, or a designee thereof, who intentionally\nremoves human remains or funerary objects from a burial site shall be\nguilty of a class A misdemeanor, as defined in the penal law.\n (c) Any person (i) who knowingly defaces or destroys a burial site,\nhuman remains or funerary objects, or (ii) who, knowing that a burial\nsite, human remains, or funerary objects exist causes another person to\ndeface or destroy such burial site, human remains, or funerary objects,\nor (iii) who possesses human remains or funerary objects with intent to\nsell such remains or artifacts, or (iv) who sells or attempts to sell\nhuman remains or funerary objects, except when authorized by law, shall\nbe guilty of a class E felony, as defined in the penal law.\n 9. Enforcement. The attorney general or any aggrieved party, including\nthe committee and any lineal descendant or culturally-affiliated group,\nmay bring an action in supreme court in the judicial district where the\nremains or objects covered by this section are located to enjoin\nviolations or threatened violations of this section, and to recover such\nremains or objects.\n