Bill Text: NY S04422 | 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: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-03-11 - REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS [S04422 Detail]

Download: New_York-2019-S04422-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4422
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 11, 2019
                                       ___________
        Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
          printed to be committed 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.
    23    § 3. Section 1503 of the not-for-profit corporation law is amended  by
    24  adding a new paragraph (c) to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09868-01-9

        S. 4422                             2
     1    (c)  Except  as otherwise provided in paragraph (c) of section fifteen
     2  hundred seven and paragraph (m) of section fifteen hundred ten  of  this
     3  article,  this  article  does  not  apply to a burial site as defined in
     4  paragraph (a) of section fifteen hundred eighteen of this article.
     5    §  4.  The  not-for-profit  corporation law is amended by adding a new
     6  section 1518 to read as follows:
     7  § 1518. Discovery and disposition of human remains and funerary objects.
     8    (a) Definitions. As used in this section:
     9    (1) "Burial site" means any location in which human remains are inter-
    10  red, which is not a cemetery subject to provisions of this chapter,  the
    11  religious  corporation  law,  the general municipal law, the county law,
    12  the town law or the village law.
    13    (2) "Committee" means the Native American burial site review committee
    14  created by paragraph (c) of this section.
    15    (3) "Culturally-affiliated group" means any group, including a  Native
    16  American tribe, whose past or present government, or traditional culture
    17  or  religion was or is affiliated with human remains or funerary objects
    18  which are the subject of this section. Such group shall include a Native
    19  American tribe whose aboriginal territory, as defined by the  committee,
    20  includes  the location of a burial site containing Native American human
    21  remains or funerary objects.
    22    (4) "Forensic anthropologist or bioarchaeologist" means a person qual-
    23  ified in the medicolegal or  osteological  investigation/examination  of
    24  human skeletal remains.
    25    (5)  "Funerary objects" means any item or items reasonably believed to
    26  have been placed with human remains at the time of burial, including but
    27  not limited to burial markers, items  of  personal  adornment,  vessels,
    28  beads, tools, implements, ceremonial objects and other artifacts.
    29    (6)  "Human  remains"  means  the remains of any part of the body of a
    30  deceased person.
    31    (7) "Lineal descendant" means a genealogical descendant established by
    32  oral tradition or written record.
    33    (8) "Native American tribe" means any Native American tribe, nation or
    34  group.
    35    (9) "State archaeologist" means the person appointed  to  such  office
    36  pursuant to section two hundred thirty-five of the education law.
    37    (b)  Applicability.  This  section shall apply to all lands within the
    38  state, except for lands located upon  any  Native  American  reservation
    39  located wholly or partly within the state.
    40    (c)  Native  American  burial  site  review committee. There is hereby
    41  established a Native American burial site review committee consisting of
    42  the following: one member to be appointed by each of the Native American
    43  tribes in the state as the official representatives for the purposes  of
    44  the  Native  American  Graves Protection and Repatriation Act; the state
    45  archaeologist; a forensic anthropologist or bioarchaeologist; the  chair
    46  of  the  human  remains  committee  or  other  designee  of the New York
    47  Archaeological Council; and one member with expertise in  the  field  of
    48  historic  preservation  appointed  by  the commissioner of the office of
    49  parks, recreation and historic preservation. The committee shall elect a
    50  chairperson from among its members.  The  members  who  are  not  public
    51  employees  shall  be  reimbursed  by  the state for their reasonable and
    52  necessary expenses incurred in the performance of  committee  functions.
    53  It  shall  be  the  function  of  the  committee to determine the lineal
    54  descendants and/or  culturally-affiliated  groups  for  Native  American
    55  human  remains  and  funerary  objects  subject  to this section, and to
    56  provide notice to such descendants and/or groups  as  provided  in  this

        S. 4422                             3
     1  section.  The state archaeologist shall prepare, and the committee shall
     2  adopt,  standard  procedures  for determining the lineal descendants and
     3  culturally-affiliated groups for  human  remains  as  required  by  this
     4  section,  including acceptable types of proof of such descent and affil-
     5  iation.
     6    (d) Discovery of burial site; reporting requirements. (1)  Any  person
     7  who  in  the course of any ground-disturbing activity discovers a burial
     8  site, human remains or funerary  objects  shall  immediately  cease  any
     9  further  disturbance  of  such site, remains or objects, and shall imme-
    10  diately report such discovery to the coroner or medical examiner in  the
    11  county  in  which  the  remains  were discovered. The coroner or medical
    12  examiner shall within ninety-six hours determine whether any actions are
    13  required pursuant to the provisions of article seventeen-A of the county
    14  law. If any such remains appear to the coroner or medical examiner to be
    15  more than fifty years old, the coroner or medical examiner  shall  imme-
    16  diately  provide  notice  of  the discovery of such remains to the state
    17  archaeologist, who shall in turn convey each such notice  to  the  other
    18  members  of  the committee.  Any inspection or examination shall be made
    19  in situ except as necessary to comply with such article  seventeen-A  or
    20  to determine the age of the remains.
    21    (2) The state archaeologist, or such qualified person as may be desig-
    22  nated  by  the  state archaeologist, shall, upon receiving notice from a
    23  coroner or medical examiner of the discovery of human  remains,  inspect
    24  the  site,  remains and/or objects which are the subject of such notice,
    25  prepare a report thereon and provide a copy of the report to the commit-
    26  tee. The report shall be based upon physical examination of the  discov-
    27  ered  burial  site,  remains and/or objects, and shall contain the state
    28  archaeologist's conclusion as  to  whether  such  site,  remains  and/or
    29  objects  may  be of Native American origin. In preparing the report, the
    30  state archaeologist may seek and obtain assistance from any employee  of
    31  the  regents,  from  the committee, and from the office of parks, recre-
    32  ation and historic preservation.
    33    (e) Determination of and notification to lineal descendant or  cultur-
    34  ally-affiliated  group.  (1)  If  the  state archaeologist, the forensic
    35  anthropologist or bioarchaeologist, and the  committee  agree  that  the
    36  burial  site does not wholly or partly contain human remains or funerary
    37  objects that are of Native American origin, it shall be the responsibil-
    38  ity of the state archaeologist to determine,  as  soon  as  practicable,
    39  whether  there  is  any  reasonably  ascertainable  lineal descendant or
    40  culturally-affiliated group  with  respect  to  such  site,  remains  or
    41  objects  and,  immediately  upon  making  such determination, to provide
    42  notice to such descendants or group of the reported discovery.
    43    (2) If the state archaeologist, the forensic anthropologist or  bioar-
    44  chaeologist,  and  the  committee  agree  that the burial site wholly or
    45  partly contains human remains or funerary objects that may be of  Native
    46  American  origin,  it  shall  be  the responsibility of the committee to
    47  determine the lineal descendants or culturally-affiliated  groups.  Such
    48  determination  shall  be made as soon as practicable after the committee
    49  receives a report from the state  archaeologist  concerning  the  burial
    50  site.  Immediately  upon  making such determination, the committee shall
    51  provide written notification  to  such  descendants  or  groups  of  the
    52  reported discovery.
    53    (3)  The  committee  shall  have  stewardship of Native American human
    54  remains and funerary objects from the time it receives notification from
    55  the state archaeologist pursuant to paragraph (d) of this section  until
    56  the  lineal  descendants  and/or  culturally-affiliated  groups  receive

        S. 4422                             4
     1  notification from the committee pursuant to  this  paragraph,  at  which
     2  time  such  lineal descendants and/or culturally-affiliated groups shall
     3  have the right  of  possession  and  stewardship  of  such  remains  and
     4  objects.  Upon notification to such lineal descendants or culturally-af-
     5  filiated  groups  pursuant to this paragraph, ownership of and responsi-
     6  bility for the human remains and funerary objects shall vest exclusively
     7  in such descendants or groups, which shall have exclusive  authority  to
     8  determine their disposition.
     9    (4)  The  committee shall establish procedures for making the determi-
    10  nation as to whether discovered human remains or funerary objects may be
    11  of Native American origin when the state archaeologist and the committee
    12  can not come to agreement.
    13    (5) Where a burial site contains both Native American  and  non-Native
    14  American  human  remains  or  funerary  objects,  the committee shall be
    15  responsible for the Native American burials at the site, and  the  state
    16  archaeologist shall be responsible for all other burials at the site.
    17    (f)  Disposition  of  remains  and  objects. (1) Within ten days after
    18  notification by the  state  archaeologist  to  a  lineal  descendant  or
    19  culturally-affiliated  group,  other than a Native American tribe of the
    20  discovery of a burial site, the descendant or  group  shall  advise  the
    21  state  archaeologist  as  to the preferred disposition of the discovered
    22  remains or objects. The state archaeologist shall to the maximum  extent
    23  practicable  facilitate such preferred disposition, which may consist of
    24  reinterment and protection  of  the  burial  site  or  disinterment  and
    25  reburial or other disposition as determined.
    26    (2)  Within  ten  days after notification by the committee to a lineal
    27  descendant or culturally-affiliated group of the discovery of  a  burial
    28  site,  the  descendant or group shall advise the committee in writing as
    29  to the preferred disposition of the discovered remains or  objects.  The
    30  committee  shall  to  the  maximum  extent  practicable  facilitate such
    31  preferred disposition, which may consist of reinterment  and  protection
    32  of  the burial site or disinterment and reburial or other disposition as
    33  determined.
    34    (g) Disposition of human remains and funerary objects, generally.  (1)
    35  Except  as  necessary  to carry out the purposes of this section, burial
    36  sites, human remains and funerary objects shall remain undisturbed after
    37  discovery.
    38    (2) Unless express contrary direction is given  by  the  committee,  a
    39  culturally-affiliated  group or lineal descendant, the presumed disposi-
    40  tion of human remains and funerary objects shall  be  that  they  remain
    41  undisturbed  where buried, except as provided in subparagraphs three and
    42  four of this paragraph.
    43    (3) Notwithstanding subparagraph two of this paragraph, where there is
    44  no practicable means of modifying the activity which led to the  discov-
    45  ery  of  a  burial  site,  human remains or funerary objects in order to
    46  avoid disturbing such site, remains or objects, the remains  or  objects
    47  shall  be  removed  and disposition be determined in accordance with the
    48  directions of the  committee,  culturally-affiliated  group,  or  lineal
    49  descendant.
    50    (4)  Notwithstanding  subparagraph  two  of  this paragraph, where the
    51  state archaeologist and the committee have been unable to  identify  the
    52  lineal  descendant  or  culturally-affiliated group for human remains or
    53  funerary objects, the state archaeologist shall determine the  appropri-
    54  ate disposition of such remains or objects.
    55    (h)  Penalties.  (1) Any person who fails to report the discovery of a
    56  burial site, human remains or funerary objects as required by  paragraph

        S. 4422                             5
     1  (d) of this section shall be guilty of a class B misdemeanor, as defined
     2  in the penal law.
     3    (2)  Any  person  other  than  the state archaeologist, or a person or
     4  group with a  right  of  possession  or  stewardship  pursuant  to  this
     5  section,  or a designee thereof, who intentionally removes human remains
     6  or funerary objects from a burial site shall be  guilty  of  a  class  A
     7  misdemeanor, as defined in the penal law.
     8    (3) Any person who defaces or destroys a burial site, human remains or
     9  funerary  objects,  or  who  possesses human remains or funerary objects
    10  with intent to sell such remains or artifacts, or who sells or  attempts
    11  to  sell human remains or funerary objects, shall be guilty of a class E
    12  felony, as defined in the penal law.
    13    (i) Enforcement. The attorney general or any aggrieved party,  includ-
    14  ing  the  committee  and  any lineal descendant or culturally-affiliated
    15  group, may bring an action in supreme court  in  the  judicial  district
    16  where  the  remains  or  objects  covered by this section are located to
    17  enjoin violations or threatened  violations  of  this  section,  and  to
    18  recover  such remains or objects, and in the case of an aggrieved party,
    19  compensatory and punitive damages for such violation.
    20    § 5. Section 235 of the education law is amended to read as follows:
    21    § 235. State science service.    There  shall  be  maintained  in  the
    22  university  a  science service which shall be known as the state science
    23  service and the state geologist, paleontologist, botanist  [and],  ento-
    24  mologist,  and  archaeologist  shall  constitute its staff together with
    25  such other scientists as the regents may employ or who are now  employed
    26  by  them.   This service is empowered and directed to make available its
    27  services to all the departments of the state, and the residents  of  the
    28  state  under such rules and regulations as the regents may prescribe and
    29  is empowered to engage in such scientific research as directed by law or
    30  by the regents and shall cooperate with scientific units or agencies  of
    31  other  states,  the  federal  government,  educational  institutions and
    32  industry in the discovery,  analysis  and  dissemination  of  scientific
    33  information.   The director of the state museum shall also be the direc-
    34  tor and head of the state science service and the staff of  the  service
    35  shall be members of the staff of the state museum.
    36    §  6. Section 14.09 of the parks, recreation and historic preservation
    37  law is amended by adding a new subdivision 3 to read as follows:
    38    3. Prior to the preparation or approval of the final design or plan of
    39  any project undertaken by a state agency, or prior to the funding of any
    40  project by a state agency, or prior to an action of approval or entitle-
    41  ment of any private project by a state agency, the agency's preservation
    42  officer shall perform a diligent inquiry to determine whether any aspect
    43  of the project may or will effect a disturbance of a known or  suspected
    44  burial  site  for  which  a culturally-affiliated Native American tribe,
    45  group or lineal descendent can be identified. The terms  "burial  site",
    46  "culturally-affiliated"  and "Native American tribe" shall have the same
    47  meanings as ascribed to such terms in paragraph (a) of  section  fifteen
    48  hundred  eighteen  of the not-for-profit corporation law.  In such event
    49  such officer shall notify such Native  American  tribe  and  the  Native
    50  American  burial  site  review  committee established by section fifteen
    51  hundred eighteen of the not-for-profit corporation law and consult  with
    52  the tribe and such committee to determine how to avoid such disturbance.
    53    §  7. This act shall take effect on the first of January next succeed-
    54  ing the date on which it shall have become a law.
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