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 - Dead) 2020-01-08 - 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. LBD09868-01-9A. 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 AmericanA. 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 fromA. 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.
