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The Law and American Indian Grave Protection

Delaware

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

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


Code Book: Delaware Code
Citation: Title 7 5301 through 5309
Section Title: Archeological and geological resources

Summary:

Prohibits a person from excavating, collecting, defacing, disturbing or destroying an archeological resource or its surrounding location or context, in or on lands owned or controlled by the state, except with the permission of the governor. Authorizes the governor to: grant permits for archeological survey and excavation on lands owned or controlled by the state to any person or institution that is properly qualified; prescribe reasonable rules and regulations for carrying out such surveys and excavations; and designate a person to extend and grant permits. Defines an archeological resource as the remains of past human life or activity that are at least fifty years old. Requires archeological surveys and excavations to be carried out for the benefit of reputable museums, universities, colleges or other recognized scientific institutions. Requires that all objects of historical or archeological value found on sites owned or controlled by the state and related records resulting from research, surveys and excavation conducted under a permit shall be deposited in the Archeological Museum of the University of Delaware or the Division of Historical and Cultural Affairs, or in a repository approved by the director of the division. Discourages excavation on privately owned land, except in accordance with the spirit and policy of this chapter. Encourages persons knowing the location of archeological sites in the state to notify the Department of Anthropology of the University of Delaware or the Division of Historical and Cultural Affairs. Directs that no person shall sell, transfer, exchange, transport, purchase or receive any archeological resource that has not been obtained in compliance with this chapter. Directs that no person shall possess, use or employ, on lands owned or controlled by the state, tools or devices designed, modified or commonly used for the excavation or removal of archeological resources, unless permitted or authorized to possess such tools and devices in accordance with this chapter. Declares that a person who violates this chapter shall be fined up to $10,000 or imprisoned up to 30 days for each day of continued violation, or both. Allows the state to order forfeiture of unauthorized tools or devices without compensation or restitution for the remedy or remediation of any violation of this chapter. Exempts from the requirement to obtain a permit under this chapter any activities of state agencies that are: subject to federal laws or regulations regarding archeological resources; not intended as archeological activities, such as land surveying, soil testing, construction or property maintenance; or undertaken in public use areas along the Atlantic coast from Cape Henlopen south to the state line, between the mean low water line and the base of the primary dune, unless otherwise posted.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Permit / Site Investigation Authority
    • Violation / Penalty / Enforcement

Code Book: Delaware Code
Citation: Title 7 5403 through 5411
Section Title: Archeological activities: archeological excavation (unmarked human burials)

Summary:

Requires a person knowing or having reasonable grounds to believe that unmarked human burials or human skeletal remains are being encountered to notify immediately the chief medical examiner, Department of Health and Social Services, or the director of the Division of Historical and Cultural Affairs, Department of State. Requires that any construction or agricultural activities shall cease immediately if human burials or skeletal remains are encountered during such activities and that the medical examiner or the director shall be notified. Requires a professional archeologist who encounters human burials or skeletal remains as a result of survey or excavation to report such discoveries to the director, who shall notify the chief medical examiner; allows the archeologist to resume excavation and other activities after approval is provided by the director. Directs the chief medical examiner, subsequent to notification, to certify in writing to the director whether an unmarked human burial or skeletal remains comes under the jurisdiction of the medical examiner; declares that those remains not within the jurisdiction of the medical examiner shall be within the jurisdiction of the director. Requires that the excavation of remains not under the jurisdiction of the medical examiner shall be conducted by or under the supervision of a professional archeologist and shall be subject to permission of the land owner. Requires that a committee established under this subchapter shall be notified within five days regarding the discovery of Native American skeletal remains and that such committee shall consist of: the chief of the Nanticoke tribe and two members appointed by the chief; the director of the Division of Historical and Cultural Affairs and two members appointed by the director; and one member appointed by the governor. Requires the director to provide the committee, within sixty days of notification, with a written plan for the treatment and ultimate disposition of the Native American skeletal remains. Requires the director to publish notice of the discovery of any skeletal remains determined not to be Native American in an effort to discover the identity or next-of-kin of the deceased. Directs that treatment of such remains shall be subject to the written permission of the next-of-kin, who shall be provided by the director with a written plan for treatment of the remains. Requires that all skeletal remains of Native Americans of the state that were on display or remained uncovered as of June 5, 1987, shall have been reinterred within one year of that date. Directs that treatment and ultimate disposition of Native American skeletal remains discovered after that date shall be determined by the committee or, if direct descent can be determined, by the next-of-kin. Requires, in any event, that Native American remains shall be reinterred within ninety days, unless an extension is granted by the committee. Directs that disposition of non-Native American skeletal remains shall be determined by the next-of-kin, who shall bear the costs of reinterment, or, if the next-of-kin are unknown, disposition shall be determined by the director. Prohibits a person, unless acting under the authority of the chief medical examiner pursuant to Title 29, Chapter 47, knowingly to: acquire human skeletal remains acquired from unmarked burials in the state, except in accordance with this subchapter; sell any human skeletal remains from unmarked burials in the state; or exhibit human skeletal remains. Declares that a person convicted of such violations shall be fined not less than $1,000 or more than $10,000 or imprisoned for not more than two years, or both.

Primary Topic: Archeological Activities

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

Code Book: Delaware Code
Citation: Title 11 1333
Section Title: Trading in human remains and associated funerary objects

Summary:

(b) Declares that a person is guilty of trading in human remains and associated funerary objects when the person knowingly sells, buys or transports for sale or profit, or offers to buy, sell or transport for sale or profit, within the state, any unlawfully removed human remains or any associated funerary objects. (c)(1) Exempts from the provisions of this section any person acting in the course of medical, archeological, educational or scientific study authorized by an accredited educational institution or governmental entity.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Delaware Code
Citation: Title 11 1340
Section Title: Desecration of burial place

Summary:

Declares a person to be guilty of a class A misdemeanor who intentionally defaces, damages, pollutes or otherwise physically mistreats any burial place, and, upon conviction shall be fined not less than $1,000 nor more than $10,000.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement



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