N.Y. Executive Law § 171: Discovery and disposition of human remains and funerary objects

§ 171. Discovery and disposition of human remains and funerary

objects. 1. Definitions. As used in this section:

(a) "Burial site" means any location in which human remains are

interred, which is not a cemetery subject to provisions of the

not-for-profit corporation law, the religious corporations law, the

general municipal law, the county law, the town law or the village law.

(b) "Committee" means the Native American burial site review committee

created by subdivision three of this section.

(c) "Culturally-affiliated group" means any group, including a Native

American Nation or tribe, whose past or present government, or

traditional culture or religion, was or is affiliated with human remains

or funerary objects which are the subject of this section.

(d) "Forensic anthropologist or bioarchaeologist" means a person

qualified in the medicolegal or osteological investigation/examination

of human skeletal remains.

(e) "Funerary objects" means any item or items reasonably believed to

have been placed with human remains at the time of burial, including but

not limited to burial markers, items of personal adornment, vessels,

beads, tools, implements, ceremonial objects and other artifacts.

(f) "Human remains" means the remains of any part of the body of a

deceased person, excluding teeth.

(g) "Lineal descendant" means a genealogical descendant established by

oral tradition, traditional Indigenous knowledge, or written record.

(h) "Native American Nation or tribe" means any Native American tribe,

nation or group.

(i) "State archaeologist" means the person appointed to such office

pursuant to section two hundred thirty-five of the education law.

2. Applicability. (a) This section shall apply to all lands within the

state except for lands located upon any Native American territory or

reservation located wholly or partly within the state.

(b) Subdivisions three, four, five, six, and seven of this section

shall not apply to any project that has been reviewed pursuant to

section 14.09 of the parks, recreation, and historic preservation law or

to state participation in any review conducted pursuant to section 106

of the National Historic Preservation Act. If any human remains are

discovered during the project, the applicant shall immediately notify

the state archaeologist.

3. Native American burial site review committee. (a) There is hereby

established a Native American burial site review committee consisting of

the following:

(i) one member to be appointed by each of the Native American Nations

or tribes recognized by the state;

(ii) the state archaeologist;

(iii) a forensic anthropologist or bioarchaeologist appointed by the

executive director of the New York state museum;

(iv) the chair of the human remains committee or other designee of the

New York Archaeological Council; and

(v) one member with expertise in the field of historic preservation

appointed by the commissioner of the office of parks, recreation and

historic preservation.

(b) The committee shall elect a chairperson from among its members.

The members who are not public employees shall be reimbursed by the

state for their reasonable, necessary expenses incurred in the

performance of committee functions. Three-fifths of the members of the

committee shall constitute a quorum for the purpose of conducting

business. A majority vote of all members who have been appointed or who

are serving ex-officio shall be necessary for action. Any vacancy shall

be filled in the same manner as the original appointment.

(c) It shall be the function of the committee to determine the lineal

descendants and/or culturally-affiliated groups for Native American

human remains and funerary objects subject to this section, and to

provide notice to such descendants and/or groups as provided in this

section. The state archaeologist shall prepare, and the committee shall

adopt, standard procedures for determining the lineal descendants and

culturally-affiliated groups for human remains as required by this

section, including acceptable types of proof of such descent and

affiliation. Such procedures shall include dispute resolution methods to

resolve disagreements among the committee members.

4. Discovery of burial site; reporting requirements. (a) Any person

who in the course of any ground-disturbing activity discovers a burial

site, human remains or funerary objects shall immediately cease any

further disturbance of such site, remains or objects, and shall

immediately report such discovery to the coroner or medical examiner in

the county in which the remains were discovered. The coroner or medical

examiner shall, within ninety-six hours, determine whether any actions

are required pursuant to the provisions of article seventeen-A of the

county law. If any such remains appear to the coroner or medical

examiner to be more than fifty years old, the coroner or medical

examiner shall immediately provide notice of the discovery of such

remains to the state archaeologist, who shall in turn convey such notice

to the other members of the committee. If no action is required under

article seventeen-A of the county law, or once such actions are

undertaken and no further action is required, the state archaeologist

and the committee may commence their inspection or examination of the

remains or objects. Any inspection or examination shall be made in situ

except as necessary to comply with such article seventeen-A, this

section, or to determine the age of the remains. The state archaeologist

and the committee may use ground penetrating radar or other pertinent

technology or equipment on any portion of the project site that has yet

to be disturbed to determine if any other remains exist within the

project site.

(b) The state archaeologist, or a registered archeologist or

registered professional archeologist as may be designated by the state

archaeologist, shall, upon receiving notice from a coroner or medical

examiner of the discovery of human remains, inspect the site, remains

and/or objects which are the subject of such notice. Within ten days of

receiving such notice, the state archaeologist shall prepare a report

thereon and provide a copy of the report to the committee and to the

property owner. The report shall be based upon physical examination of

the discovered burial site, remains and/or objects, and shall contain

the state archaeologist's conclusion as to whether such site, remains

and/or objects may be of Native American origin. In the event the state

archaeologist determines there is a reasonable possibility the site

contains multiple remains, an additional period of ten days may be

provided for assessment by the state archaeologist in consultation with

the culturally-affiliated group to determine the parameters of the site.

In preparing the report, the state archaeologist may seek and obtain

assistance from any employee of the regents, from the committee, and

from the office of parks, recreation and historic preservation.

(c) The committee may recommend to the office of parks, recreation,

and historic preservation that the site should be designated as a place

of historic interest under section twelve-a of the Indian law.

5. Determination of and notification to lineal descendants or

culturally-affiliated groups. (a) If the state archaeologist, the

forensic anthropologist or bioarchaeologist, and the committee agree

that the burial site does not wholly or partly contain human remains or

funerary objects that are of Native American origin, it shall be the

responsibility of the state archaeologist to determine, as soon as

practicable, whether there are any reasonably ascertainable lineal

descendants or culturally-affiliated groups with respect to such site,

remains or objects and, immediately upon making such determination, to

provide notice to such descendants or groups of the reported discovery.

(b) If the state archaeologist, the forensic anthropologist or

bioarchaeologist, and the committee agree that the burial site wholly or

partly contains human remains or funerary objects that may be of Native

American origin, it shall be the responsibility of the committee to

determine the lineal descendants or culturally-affiliated groups. Such

determination shall be made as soon as practicable after the committee

receives a report from the state archaeologist concerning the burial

site. Immediately upon making such determination, the committee shall

provide notification to such descendants or groups of the reported

discovery.

(c) The committee shall have stewardship of Native American human

remains and funerary objects from the time it receives notification from

the state archaeologist pursuant to subdivision four of this section

until the lineal descendants and/or culturally-affiliated groups receive

notification from the committee pursuant to this subdivision, at which

time such lineal descendants and/or culturally-affiliated groups shall

have the right of possession and stewardship of such remains and

objects. Upon notification to such lineal descendants or

culturally-affiliated groups pursuant to this subdivision, ownership of

and responsibility for the human remains and funerary objects shall vest

exclusively in such descendants or groups, which shall have authority to

determine their disposition subject to the provisions of this section.

(d) The state archaeologist shall have stewardship of non-Native

American human remains and funerary objects from the time he or she

receives notification from the coroner or medical examiner pursuant to

subdivision four of this section until the lineal descendants and/or

culturally-affiliated groups receive notification from the state

archaeologist pursuant to this paragraph, at which time such lineal

descendants and/or culturally-affiliated groups shall have the right of

possession and stewardship of such remains and objects. Upon

notification to such lineal descendants or culturally-affiliated groups

pursuant to this subdivision, ownership of and responsibility for the

human remains and funerary objects shall vest exclusively in such

descendants or groups, which shall have authority to determine their

disposition subject to the provisions of this section.

(e) Where a burial site contains both Native American and non-Native

American human remains or funerary objects, the committee shall be

responsible for the Native American burials at the site, and the state

archaeologist shall be responsible for all other burials at the site.

Once stewardship of each is determined, the procedures established in

paragraphs (c) and (d) of this subdivision shall apply.

6. Disposition of remains and objects. (a) Within ten days after

receiving notification from the state archaeologist to lineal

descendants or a culturally-affiliated group, other than a Native

American Nation or tribe, of the discovery of a burial site, the

descendants or group shall advise the state archaeologist in writing as

to the preferred disposition of the discovered remains or objects, which

may include a request to protect the burial site and keep the remains

interred where they were found. The state archaeologist shall consult

with the property owner to try to facilitate the request of the lineal

descendants or culturally-affiliated group.

(b) Within sixty days after receiving notification from the committee

to a lineal descendant or culturally-affiliated group of the discovery

of a burial site, the descendants or group shall advise the committee in

writing as to the preferred disposition of the discovered remains or

objects, which may include a request to protect the burial site and keep

the remains interred where they were found. The committee shall consult

with the property owner to try to facilitate the request of the lineal

descendants or culturally-affiliated group.

(c) No later than ten days after receiving the report from the state

archaeologist pursuant to subdivision four of this section, the property

owner shall inform the state archaeologist of their decision with

respect to the interment of the remains on their property. The report

from the state archaeologist to the property owner shall clearly include

that the property owner has ten days to notify the state archaeologist

of their decision. If a property owner fails to notify the state

archaeologist of their decision, the state archaeologist or the

committee, as appropriate, shall abide by the decision of the lineal

descendants or culturally-affiliated group.

(d) Only the state archaeologist, a registered archaeologist, or a

registered professional archaeologist may touch or handle any remains or

funerary objects.

7. Disposition of human remains and funerary objects, generally. (a)

The property owner, their agents, assignees, employees, family members,

friends, acquaintances, or any other individuals acting on behalf of

such property owner, other than the state archeologist or a registered

archeologist or a registered professional archaeologist hired by the

property owner and acting pursuant to paragraph (d) of this subdivision,

are strictly prohibited from moving, relocating, transferring, selling,

possessing, touching, handling, or otherwise intentionally disturbing,

in any manner, all human remains and funerary objects that are

discovered on site. Except as necessary to carry out the purposes of

this section, burial sites, human remains and funerary objects shall

remain undisturbed after discovery and during the process established by

this section.

(b) While the disposition of the remains shall be determined by the

lineal descendants or culturally-affiliated group, and the property

owner, the preferred disposition as a matter of policy is to have the

remains stay interred where they are discovered.

(c) (i) If the lineal descendants, or culturally-affiliated group, and

the property owner agree that the remains shall stay interred, the

committee or state archaeologist, as appropriate, shall establish a plan

of action for the preservation and protection of the remains.

(ii) If the lineal descendants or culturally-affiliated group requests

that the remains be excavated and moved to a different location, the

committee or state archaeologist, as appropriate, shall establish and

implement a plan of action for the respectful, dignified excavation and

removal of the remains.

(iii) If the lineal descendants or culturally-affiliated group advise

that the remains stay interred, but the property owner notifies of their

decision, as provided in this section, that the remains should be

removed, the committee or state archaeologist, as appropriate, shall

establish and implement a plan of action for the respectful, dignified

excavation and removal of the remains. Such plan shall not be

inconsistent with the provisions of this section. The committee or state

archaeologist may, prior to the execution of the plan of action, consult

with the property owner in an attempt to realize the request of the

lineal descendants or culturally-affiliated group. The committee or

state archaeologist may use a mediator, at no cost to the property owner

unless mediation is requested by the property owner, as part of this

process.

(d) (i) If the plan of action has not been implemented within ninety

days of the notification to the state archaeologist by the coroner or

medical examiner pursuant to paragraph (a) of subdivision four of this

section, and any additional time provided pursuant to paragraph (b) of

subdivision four of this section, the property owner may decide to

excavate and remove the remains, provided that they shall engage a

registered archeologist or a registered professional archaeologist,

registered with the Register of Professional Archaeologists and who

practices in the field of bioarchaeology or forensic anthropology, to

excavate and remove the remains in a respectful and dignified manner

that is not inconsistent with the provisions of this section, and

provided further that the property owner may request the state

archeologist to perform any such excavation or removal. The

culturally-affiliated group shall have the right to have a cultural

monitor on site prior to and during any excavation and removal of human

remains or funerary objects. Failure of the culturally-affiliated group

to have a monitor on site shall not be grounds to prohibit, prevent, or

pause any excavation, removal, or other conduct as provided in this

section.

(ii) If the plan of action has been substantially implemented but not

completed within the ninety-day period, and any additional time provided

pursuant to paragraph (b) of subdivision four of this section, the

committee or state archaeologist may have one additional ten-day period

to complete the excavation and removal. The state archaeologist, in

consultation with the committee, where appropriate, shall determine

whether the plan of action has been substantially implemented.

(iii) Any excavation and removal caused by the property owner pursuant

to this paragraph shall be done at the expense of the property owner and

shall be performed and supervised by the registered archaeologist, or a

registered professional archaeologist, hired by the property owner

pursuant to this subdivision, provided that the property owner may

request the state archeologist to complete any such excavation or

removal even after the ninety-day implementation period or any

additional time provided in this section has expired. The

culturally-affiliated group may select a cultural monitor to observe the

work. Such archaeologist shall review the established plan of action

with the state archaeologist or the committee, as appropriate, and act

in accordance with that plan. For the purposes of this paragraph, only

the state archaeologist, as provided in this section, or the registered

archaeologist or registered professional archaeologist hired to perform

the excavation pursuant to this subdivision may have physical contact

with or otherwise disturb the remains or burial site.

(iv) The state archaeologist or committee shall make themselves

available to the registered archaeologist or registered professional

archaeologist forthwith for the purposes of discussing the established

plan of action for the site. If the state archaeologist or committee

fails to make themselves available forthwith, the registered

archaeologist or registered professional archaeologist may proceed with

the excavation and removal.

(v) If no plan of action has been established prior to the expiration

of the ninety-day period, and any additional time provided pursuant to

paragraph (b) of subdivision four of this section, the registered

archaeologist or registered professional archaeologist may proceed with

the excavation and removal in a professional, respectful, dignified

manner that is not inconsistent with the provisions of this section.

(vi) Any remains or funerary objects excavated from the site as a

result of the implementation of the process established by this

paragraph shall be deposited with the New York state museum for

disposition.

(vii) Notwithstanding any conflicting provision of this section, the

state archeologist may at any time monitor and observe any excavation

and removal performed pursuant to this section.

(e) If the state archaeologist and the committee have been unable to

identify the lineal descendants or culturally-affiliated group for human

remains or funerary objects, the state archaeologist shall take

stewardship of the remains and shall make the recommendation for their

disposition in accordance with the provisions of this section.

(f) Notwithstanding any conflicting provision of paragraph (d) of this

subdivision, for project sites that contain the remains of six or more

individuals, if the state archaeologist determines that additional time

is necessary for the excavation of such site, an additional thirty-day

period may be added before the remains can be excavated and removed by

the property owner. If the state archeologist continues to find that

additional time is necessary, the period before remains can be excavated

and removed by the property owner may be extended multiple times in

increments of thirty days. The state archaeologist must provide a copy

of each such determination to the property owner in writing. The

property owner may bring an action pursuant to article seventy-eight of

the civil practice law and rules to review the determination of the

state archaeologist pursuant to this paragraph.

8. Penalties. (a) Any person who fails to report the discovery of a

burial site, human remains or funerary objects as required by

subdivision four of this section shall be guilty of a class B

misdemeanor, as defined in the penal law.

(b) Any person other than the state archaeologist, or a person or

group with a right to remove or a right of possession or stewardship

pursuant to this section, or a designee thereof, who intentionally

removes human remains or funerary objects from a burial site shall be

guilty of a class A misdemeanor, as defined in the penal law.

(c) Any person (i) who knowingly defaces or destroys a burial site,

human remains or funerary objects, or (ii) who, knowing that a burial

site, human remains, or funerary objects exist causes another person to

deface or destroy such burial site, human remains, or funerary objects,

or (iii) who possesses human remains or funerary objects with intent to

sell such remains or artifacts, or (iv) who sells or attempts to sell

human remains or funerary objects, except when authorized by law, shall

be guilty of a class E felony, as defined in the penal law.

9. Enforcement. The attorney general or any aggrieved party, including

the committee and any lineal descendant or culturally-affiliated group,

may bring an action in supreme court in the judicial district where the

remains or objects covered by this section are located to enjoin

violations or threatened violations of this section, and to recover such

remains or objects.