Bill Text: NY A05928 | 2019-2020 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Slight Partisan Bill (Democrat 11-5)

Status: (Introduced) 2019-02-20 - referred to corporations, authorities and commissions [A05928 Detail]

Download: New_York-2019-A05928-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5928
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 20, 2019
                                       ___________
        Introduced  by M. of A. ENGLEBRIGHT, OTIS, JAFFEE, THIELE, L. ROSENTHAL,
          AUBRY, COOK, FINCH, MONTESANO, RAIA -- Multi-Sponsored by -- M. of  A.
          BRAUNSTEIN,  GOTTFRIED,  LUPARDO,  McDONOUGH,  ROZIC  -- 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.
                                                                   LBD09868-01-9

        A. 5928                             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 eighteen of this article.
     7    § 4. The not-for-profit corporation law is amended  by  adding  a  new
     8  section 1518 to read as follows:
     9  § 1518. 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. 5928                             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. 5928                             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. 5928                             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  eighteen  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 eighteen 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.
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