Amd §1503, add §1519, N-PC L; amd §235, Ed L; amd §14.09, 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; 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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2029
SPONSOR: Thiele TITLE OF BILL:
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 pres-
ervation law, in relation to requiring certain notice and consultation
prior to the undertaking of certain projects
PURPOSE OR GENERAL IDEA OF BILL:
This bill provides a mechanism for the protection of unmarked burial
sites and the determination of cultural affiliation, stewardship and
disposition of human remains and funerary objects interred at such
sites.
SUMMARY OF PROVISIONS:
Adds a new section to the not-for-profit corporation law regarding
discovery and disposition of human remains and funerary objects at
unmarked burial sites. The new section includes the following
provisions:
*A Native American burial site review committee is established, consist-
ing of members appointed by each of the Native American tribes in the
state, state archaeologist, and one member appointed by the Commissioner
of Parks, Recreation and Historic Preservation.
*Discovery of unmarked burial sites is required to be immediately
reported to the county coroner or medical examiner, who in turn notifies
the state archaeologist.
*The state archaeologist determines whether the remains may be of Native
American origin and reports these findings to the burial site review
committee. If they agree that the remains are of such origin, the
committee determines affiliation and notifies the affiliated group or
descendants. Otherwise, such determination and notice are made by the
state archaeologist.
*Stewardship of the remains is with the committee until affiliation or
descendants are determined, whereupon ownership, responsibility and
authority to determine disposition vests in the affiliated group or
descendants.
*Burial sites, human remains and funerary objects are to be left undis-
turbed except as otherwise provided pursuant' to this act.
*Penalties are provided for failure to report the discovery of a burial
site, removal of remains or objects from a burial site, defacing or
destroying a burial site, remains or funerary objects, and possession
with intent to sell or attempted sale of human remains or funerary
objects.
*Violation of these provisions may be enjoined in an action brought by
the Attorney. General or an aggrieved party.
Section 235 of the Education Law is amended to add a state archaeologist
to the State Science Service within the State Museum. A new subdivision
three is added to section 14.09 of the Parks, Recreation and Historic
Preservation Law to require the preservation officer of any state agency
undertaking or financing a project to determine whether the project may
disturb a burial site and if so, to consult with the burial site review
committee to determine how to avoid such disturbances.
JUSTIFICATION:
Numerous unmarked burial sites in the state are in danger of being
damaged or destroyed because of a lack of adequate protection under
current law. Such sites are sacred to the groups with which they are
culturally affiliated and the lineal descendants of the dead. New York
is one of the only four states in the nation without statutory
protection for Native American burial sites or unmarked burial sites in
general. There have been several known incidents of negligent or delib-
erate failure to protect sites, which were disturbed by development
activity, as well as looting. This legislation is necessary to prevent
additional destruction of these sites, which are of great historical and
cultural significance to all the people of the state.
PRIOR LEGISLATIVE HISTORY:
2021-22: A6724
2019-20: A5928
2017-18: A7256
2015-16: A2281
2013-14: A5837
2011-12: A4477
2009-10: A4291
2007-08: A7821
FISCAL IMPLICATIONS:
Additional resources may be needed for performance of the State Archae-
ologist.
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
2029
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. THIELE -- 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
21 practicable, and are treated with the utmost respect consistent with the
22 wishes of lineal descendants and culturally-affiliated groups.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02745-01-3
A. 2029 2
1 § 3. Section 1503 of the not-for-profit corporation law is amended by
2 adding a new paragraph (c) to read as follows:
3 (c) Except as otherwise provided in paragraph (c) of section fifteen
4 hundred seven and paragraph (m) of section fifteen hundred ten of this
5 article, this article does not apply to a burial site as defined in
6 paragraph (a) of section fifteen hundred nineteen of this article.
7 § 4. The not-for-profit corporation law is amended by adding a new
8 section 1519 to read as follows:
9 § 1519. Discovery and disposition of human remains and funerary objects.
10 (a) Definitions. As used in this section:
11 (1) "Burial site" means any location in which human remains are inter-
12 red, which is not a cemetery subject to provisions of this chapter, the
13 religious corporation law, the general municipal law, the county law,
14 the town law or the village law.
15 (2) "Committee" means the Native American burial site review committee
16 created by paragraph (c) of this section.
17 (3) "Culturally-affiliated group" means any group, including a Native
18 American tribe, whose past or present government, or traditional culture
19 or religion was or is affiliated with human remains or funerary objects
20 which are the subject of this section. Such group shall include a Native
21 American tribe whose aboriginal territory, as defined by the committee,
22 includes the location of a burial site containing Native American human
23 remains or funerary objects.
24 (4) "Forensic anthropologist or bioarchaeologist" means a person qual-
25 ified in the medicolegal or osteological investigation/examination of
26 human skeletal remains.
27 (5) "Funerary objects" means any item or items reasonably believed to
28 have been placed with human remains at the time of burial, including but
29 not limited to burial markers, items of personal adornment, vessels,
30 beads, tools, implements, ceremonial objects and other artifacts.
31 (6) "Human remains" means the remains of any part of the body of a
32 deceased person.
33 (7) "Lineal descendant" means a genealogical descendant established by
34 oral tradition or written record.
35 (8) "Native American tribe" means any Native American tribe, nation or
36 group.
37 (9) "State archaeologist" means the person appointed to such office
38 pursuant to section two hundred thirty-five of the education law.
39 (b) Applicability. This section shall apply to all lands within the
40 state, except for lands located upon any Native American reservation
41 located wholly or partly within the state.
42 (c) Native American burial site review committee. There is hereby
43 established a Native American burial site review committee consisting of
44 the following: one member to be appointed by each of the Native American
45 tribes in the state as the official representatives for the purposes of
46 the Native American Graves Protection and Repatriation Act; the state
47 archaeologist; a forensic anthropologist or bioarchaeologist; the chair
48 of the human remains committee or other designee of the New York
49 Archaeological Council; and one member with expertise in the field of
50 historic preservation appointed by the commissioner of the office of
51 parks, recreation and historic preservation. The committee shall elect a
52 chairperson from among its members. The members who are not public
53 employees shall be reimbursed by the state for their reasonable and
54 necessary expenses incurred in the performance of committee functions.
55 It shall be the function of the committee to determine the lineal
56 descendants and/or culturally-affiliated groups for Native American
A. 2029 3
1 human remains and funerary objects subject to this section, and to
2 provide notice to such descendants and/or groups as provided in this
3 section. The state archaeologist shall prepare, and the committee shall
4 adopt, standard procedures for determining the lineal descendants and
5 culturally-affiliated groups for human remains as required by this
6 section, including acceptable types of proof of such descent and affil-
7 iation.
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 or bioarchaeologist, and the committee agree that the
38 burial site does not wholly or partly contain human remains or funerary
39 objects that are of Native American origin, it shall be the responsibil-
40 ity of the state archaeologist to determine, as soon as practicable,
41 whether there is any reasonably ascertainable lineal descendant or
42 culturally-affiliated group with respect to such site, remains or
43 objects and, immediately upon making such determination, to provide
44 notice to such descendants or group of the reported discovery.
45 (2) If the state archaeologist, the forensic anthropologist or bioar-
46 chaeologist, and the committee agree that the burial site wholly or
47 partly contains human remains or funerary objects that may be of Native
48 American origin, it shall be the responsibility of the committee to
49 determine the lineal descendants or culturally-affiliated groups. Such
50 determination shall be made as soon as practicable after the committee
51 receives a report from the state archaeologist concerning the burial
52 site. Immediately upon making such determination, the committee shall
53 provide written notification to such descendants or groups of the
54 reported discovery.
55 (3) The committee shall have stewardship of Native American human
56 remains and funerary objects from the time it receives notification from
A. 2029 4
1 the state archaeologist pursuant to paragraph (d) of this section until
2 the lineal descendants and/or culturally-affiliated groups receive
3 notification from the committee pursuant to this paragraph, at which
4 time such lineal descendants and/or culturally-affiliated groups shall
5 have the right of possession and stewardship of such remains and
6 objects. Upon notification to such lineal descendants or culturally-af-
7 filiated groups pursuant to this paragraph, ownership of and responsi-
8 bility for the human remains and funerary objects shall vest exclusively
9 in such descendants or groups, which shall have exclusive authority to
10 determine their disposition.
11 (4) The committee shall establish procedures for making the determi-
12 nation as to whether discovered human remains or funerary objects may be
13 of Native American origin when the state archaeologist and the committee
14 can not come to agreement.
15 (5) Where a burial site contains both Native American and non-Native
16 American human remains or funerary objects, the committee shall be
17 responsible for the Native American burials at the site, and the state
18 archaeologist shall be responsible for all other burials at the site.
19 (f) Disposition of remains and objects. (1) Within ten days after
20 notification by the state archaeologist to a lineal descendant or
21 culturally-affiliated group, other than a Native American tribe of the
22 discovery of a burial site, the descendant or group shall advise the
23 state archaeologist as to the preferred disposition of the discovered
24 remains or objects. The state archaeologist shall to the maximum extent
25 practicable facilitate such preferred disposition, which may consist of
26 reinterment and protection of the burial site or disinterment and
27 reburial or other disposition as determined.
28 (2) Within ten days after notification by the committee to a lineal
29 descendant or culturally-affiliated group of the discovery of a burial
30 site, the descendant or group shall advise the committee in writing as
31 to the preferred disposition of the discovered remains or objects. The
32 committee shall to the maximum extent practicable facilitate such
33 preferred disposition, which may consist of reinterment and protection
34 of the burial site or disinterment and reburial or other disposition as
35 determined.
36 (g) Disposition of human remains and funerary objects, generally. (1)
37 Except as necessary to carry out the purposes of this section, burial
38 sites, human remains and funerary objects shall remain undisturbed after
39 discovery.
40 (2) Unless express contrary direction is given by the committee, a
41 culturally-affiliated group or lineal descendant, the presumed disposi-
42 tion of human remains and funerary objects shall be that they remain
43 undisturbed where buried, except as provided in subparagraphs three and
44 four of this paragraph.
45 (3) Notwithstanding subparagraph two of this paragraph, where there is
46 no practicable means of modifying the activity which led to the discov-
47 ery of a burial site, human remains or funerary objects in order to
48 avoid disturbing such site, remains or objects, the remains or objects
49 shall be removed and disposition be determined in accordance with the
50 directions of the committee, culturally-affiliated group, or lineal
51 descendant.
52 (4) Notwithstanding subparagraph two of this paragraph, where the
53 state archaeologist and the committee have been unable to identify the
54 lineal descendant or culturally-affiliated group for human remains or
55 funerary objects, the state archaeologist shall determine the appropri-
56 ate disposition of such remains or objects.
A. 2029 5
1 (h) Penalties. (1) Any person who fails to report the discovery of a
2 burial site, human remains or funerary objects as required by paragraph
3 (d) of this section shall be guilty of a class B misdemeanor, as defined
4 in the penal law.
5 (2) Any person other than the state archaeologist, or a person or
6 group with a right of possession or stewardship pursuant to this
7 section, or a designee thereof, who intentionally removes human remains
8 or funerary objects from a burial site shall be guilty of a class A
9 misdemeanor, as defined in the penal law.
10 (3) Any person who defaces or destroys a burial site, human remains or
11 funerary objects, or who possesses human remains or funerary objects
12 with intent to sell such remains or artifacts, or who sells or attempts
13 to sell human remains or funerary objects, shall be guilty of a class E
14 felony, as defined in the penal law.
15 (i) Enforcement. The attorney general or any aggrieved party, includ-
16 ing the committee and any lineal descendant or culturally-affiliated
17 group, may bring an action in supreme court in the judicial district
18 where the remains or objects covered by this section are located to
19 enjoin violations or threatened violations of this section, and to
20 recover such remains or objects, and in the case of an aggrieved party,
21 compensatory and punitive damages for such violation.
22 § 5. Section 235 of the education law is amended to read as follows:
23 § 235. State science service. There shall be maintained in the
24 university a science service which shall be known as the state science
25 service and the state geologist, paleontologist, botanist [and], ento-
26 mologist, and archaeologist shall constitute its staff together with
27 such other scientists as the regents may employ or who are now employed
28 by them. This service is empowered and directed to make available its
29 services to all the departments of the state, and the residents of the
30 state under such rules and regulations as the regents may prescribe and
31 is empowered to engage in such scientific research as directed by law or
32 by the regents and shall cooperate with scientific units or agencies of
33 other states, the federal government, educational institutions and
34 industry in the discovery, analysis and dissemination of scientific
35 information. The director of the state museum shall also be the direc-
36 tor and head of the state science service and the staff of the service
37 shall be members of the staff of the state museum.
38 § 6. Section 14.09 of the parks, recreation and historic preservation
39 law is amended by adding a new subdivision 3 to read as follows:
40 3. Prior to the preparation or approval of the final design or plan of
41 any project undertaken by a state agency, or prior to the funding of any
42 project by a state agency, or prior to an action of approval or entitle-
43 ment of any private project by a state agency, the agency's preservation
44 officer shall perform a diligent inquiry to determine whether any aspect
45 of the project may or will effect a disturbance of a known or suspected
46 burial site for which a culturally-affiliated Native American tribe,
47 group or lineal descendent can be identified. The terms "burial site",
48 "culturally-affiliated" and "Native American tribe" shall have the same
49 meanings as ascribed to such terms in paragraph (a) of section fifteen
50 hundred nineteen of the not-for-profit corporation law. In such event
51 such officer shall notify such Native American tribe and the Native
52 American burial site review committee established by section fifteen
53 hundred nineteen of the not-for-profit corporation law and consult with
54 the tribe and such committee to determine how to avoid such disturbance.
55 § 7. This act shall take effect on the first of January next succeed-
56 ing the date on which it shall have become a law; provided, however,
A. 2029 6
1 that the provisions of section three of this act shall take effect on
2 the same date and the same manner as chapter 817 of the laws of 2022,
3 takes effect.
