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The Law and American Indian Grave Protection

Arizona Laws

In 1990 the Arizona Legislature passed two laws that protect human burials and associated items on both private and State land. These laws parallel new federal laws concerning federal lands and materials recovered from federal lands or by federal funds. A.R.S.41-844 applies to activities on lands belonging to the State of Arizona and materials held by State institutions. A.R.S.41-865 applies to private lands in Arizona.

Here are summaries of the two above laws as provided at the Arizona State Museum website.

Summaries follow of burial/archaeological laws yielded through a keyword search for "archaeology" and "burial" on 2001 March 30 at the State Historic Preservation Legislation Database found at the NCSL (National Conference of State Legislatures) web site, that database then updated through 1999. These summaries are reprinted under the Fair Use doctrine of international copyright law which may be found at www4.law.cornell.edu/uscode/17/107.html. In order to access the full law go to ALIS ONLINE.



http://www.ibsgwatch.org is not responsible for any inaccuracies or timeliness of information.


Code Book: Arizona Revised Statutes
Citation: 13-3702
Section Title: Defacing or damaging petroglyphs, pictographs, caves or caverns; classification

Summary:

Declares that a person commits a class 2 misdemeanor who defaces, damages, alters or disturbs petroglyphs or pictographs found in any cave or cavern without the prior written permission of the owner.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Cave Activity
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 13-3702.01
Section Title: Excavating certain sites; collecting certain specimens; classification

Summary:

Declares that a person who knowingly excavates in violation of 41-841, subsection A, without obtaining a permit as required under 41-842 is guilty of a class 5 felony for the first offense and a class 3 felony for subsequent offenses. Declares that any person who knowingly collects any archeological specimen in violation of 41-841, subsection B, is guilty of a class 1 misdemeanor.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 36-861 through 36-862
Section Title: Mutilation or disinterment of dead bodies; removal of dead body with certain intents or malice; classifications

Summary:

Declares the following to be class 5 felonies: the knowing mutilation, disinterment or removal of the dead body of a human being from its burial place, without authority of law; and the removal of a dead body of a human being or any part of a dead body from its sepulcher, grave or other place where the dead body is buried or awaiting burial with intent to sell or dissect the body, without authority of law, or from malice or wantonness.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 41- 841 through 41- 843
Section Title: Archeological discoveries: definitions; permits; prohibiting unnecessary defacing of site or object

Summary:

Directs that only duly authorized agents of an institution, organization or corporation organized for scientific, research or land use planning purposes shall excavate in or upon any historic or prehistoric ruin, burial ground, archeological or vertebrate paleontological site, or site including fossilized footprints, inscriptions made by human agency, or any other archeological, paleontological or historical feature, situated on lands owned or controlled by the state or a state agency. Requires such an authorized agent to obtain a permit from the director of the Arizona state museum before collecting any archeological specimen on lands owned or controlled by the state or a state agency. Defines an archeological specimen as any item resulting from past human life or activities which is at least 100 years old, including petroglyphs, pictographs, paintings, pottery, tools, ornaments, jewelry, textiles, ceremonial objects, weapons, armaments, vessels, ships, vehicles and human skeletal remains. Specifies that an archeological specimen shall not include arrowheads, coins or bottles. Directs that any institution or organization that shall undertake such activities shall preserve permanently all objects, photographs and records in public repositories under their own supervision or control, or the supervision or control of other similar institutions, organizations or corporations. Prohibits any person, institution or corporation from defacing or otherwise altering any archeological site or object except in the course of activities pursued under a permit granted by the director of the Arizona state museum.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Arizona Revised Statutes
Citation: 41- 844
Section Title: Archeological discoveries: duty to report discoveries; disposition of discoveries; definitions

Summary:

Directs that a person in charge of a survey, excavation, construction or other like activity on lands owned or controlled by the state, a state agency or institution, or any county or city in the state shall report promptly to the director of the Arizona state museum the existence of any archeological, paleontological or historical site or object that is at least 50 years old and that is discovered in the course of such survey, excavation or construction, and, in consultation with the director, shall immediately take all reasonable steps to secure and maintain the preservation of the site or object. Authorizes the director, if it is necessary to move a discovered object to permit the continuation of work on a construction project, to require that the move be accomplished in a manner that will least disturb and best preserve the object. Requires the director, if the objects discovered are human remains, funerary objects, sacred ceremonial objects or objects of national or tribal patrimony, to give notice of the discovery to: all individuals that may have a direct kinship to the human remains; all groups that may have a cultural or religious affinity to the remains or objects; the curatorial staff at the state museum; faculty members at state universities who have a significant scholarly interest in the remains or objects; the state historic preservation officer; and, if American Indian remains or objects are involved, any tribes that occupy or have occupied the lands on which the discovery is made, the Arizona Commission on Indian Affairs and the Intertribal Council of Arizona. Requires the director, within six months of being notified of such a discovery, to convene a meeting of notified persons and groups to discuss the most appropriate disposition of the discovered materials, which may include a decision to curate or rebury the materials subject to conditions or limitations, or a decision to engage in scientific analysis before repatriation or reburial. Directs that the expense of any curation or reburial pursuant to this section that is required as the result of a construction project shall be borne by that project. Authorizes a person who believes that the provisions of this section have not been properly applied to seek third party resolution of such a dispute, with appeals of such decisions going to the superior court in the county in which the subject of the dispute is located.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Arizona Revised Statutes
Citation: 41- 845
Section Title: Archeological discoveries: unlawful reproduction of original archeological specimen

Summary:

Prohibits the reproduction, retouching, reworking or forging of any archeological, paleontological or historical object, deriving its principal value from its antiquity. Prohibits the making or false labeling of any object with intent to represent the object to be an original and genuine archeological, paleontological or historical specimen. Prohibits the sale or exchange of any object with knowledge that it has previously been collected or excavated in violation of any of the terms of this article.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 41- 846
Section Title: Archeological discoveries: violation; classification

Summary:

Declares that any person, institution or corporation violating any provision of this article, except as provided in 13-3702.01, is guilty of a class 2 misdemeanor and shall forfeit to the Arizona state museum all articles and material discovered, collected, excavated or offered for sale or exchange, together with all photographs and records relating to such objects.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 41- 865
Section Title: Historic preservation: disturbing human remains or funerary objects

Summary:

Requires written permission from the director of the Arizona state museum for a person intentionally to disturb human remains or funerary objects on lands other than those owned or controlled by the state, an agency or institution of the state, or a county or municipal corporation within the state. Directs that a person who unintentionally disturbs human remains or funerary objects on such lands shall report the disturbance to the director and shall not further disturb the remains or objects without obtaining the written permission of the director. Requires the director to adopt rules that shall include the following: the director shall respond within ten working days to all requests for permission to disturb; all human remains and funerary objects shall be treated with respect; disturbance of human remains and funerary objects shall be minimized, and, if necessary, reburial shall be provided at an appropriate site; representatives from the scientific community and groups with a cultural affinity regarding the treatment and protection of human remains and funerary objects shall be consulted; in the event that Native American remains or objects are involved, the governing body of the group with a cultural affinity shall be authorized to take responsibility for the human remains or funerary objects and to determine the most appropriate treatment or disposition of them; neither the state nor any individual, group or entity shall benefit financially from the sale of human remains or funerary objects; and the constitutional rights of property owners shall be protected. Allows the director to authorize funds from the Acquisition and Preservation Fund to bear the cost of removal of human remains and funerary objects, if the landowner is unwilling or unable to do so, either in whole or in part. Directs that the landowner, the lessee or the landowner's agent may proceed with work on a construction project without violating this section if the director of the Arizona state museum, after ten working days, is unable or unwilling to allocate funds from the Acquisition and Preservation Fund for the removal of the human remains or funerary objects, or if no other source for removal is available within the ten day period. Declares that a person who intentionally possesses, sells or transfers human remains or funerary objects that are excavated or removed in violation of this section is guilty of a class 5 felony, and a person who otherwise intentionally violates this section is guilty of a class 1 misdemeanor. Declares that remains or objects removed in violation of this section shall be forfeited to the Arizona state museum.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Violation / Penalty / Enforcement

Code Book: Arizona Revised Statutes
Citation: 41- 866
Section Title: Historic preservation: acquisition and preservation fund

Summary:

Establishes an acquisition and preservation fund consisting of monies received from fines and forfeitures of proceeds imposed pursuant to 41-865 and from grants and private donations. Authorizes the director of the Arizona state museum to administer the fund. Authorizes the director to expend monies in the fund to defray the costs of the acquisition of real property that contains human remains and funerary objects and the costs of the removal, reburial, repatriation and preservation of human remains and funerary objects.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Arizona Revised Statutes
Citation: 3-931
Section Title: Department of Agriculture: enforcement powers and procedures

Summary:

(E) Authorizes any officer, employee or agent of the Department of Agriculture, in addition to peace officers, to enforce 41-841 through 847 and 13-3702 and 13-3702.01 regarding archeological discoveries. Allows such an officer, employee or agent to make an arrest without warrant for violations witnessed by the officer, employee or agent and to confiscate archeological and other specimens or objects if unlawfully excavated or collected.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Resources:

State Historic Preservation Legislation Database, keyword search for burial and archaeology 30 March 2001

Resource for blue text is the Update of Compilation of State Repatriation, Reburial and Grave Protection Laws (July 1997), Prepared for the Natural Resources Conservation Service under order number 40-3A75-7-102, by Kathleen Schamel for CEHP Incorporated P.O. Box 56462 Washington, DC 20040-6462 TEL: (202) 293-1774 FAX: (202) 722-1129

http://www.ibsgwatch.org is not responsible for any inaccuracies or timeliness of information.




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