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The Law and American Indian Grave Protection

Kansas Laws

The Kansas State Historical Society states, as to Unmarked Burial Sites Legislation, KSA 75-2741 through 75-2754 (state statute enacted July 1, 1989) established the Unmarked Burial Sites Preservation Board and attached it to the Kansas State Historical Society (KSHS). The state archeologist is the statutory chairperson of the board and all budgeting, management, and investigative functions are assigned to the KSHS. The nine member board consists of the state archeologist, a historian, a physical anthropologist, a representative from each of the resident Native American tribes in Kansas (Iowa, Kickapoo, Potawatomi, and Sac & Fox of Missouri), and two laypersons."

The Kansas State Historical Society website houses The Unmarked Burial Preservation Act and information on tribes with potential consultation interests in Kansas.

Summaries follow of the above and other 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: Kansas Statutes
Citation: 74-5401 through 74-5408
Section Title: Antiquities Commission

Summary:

(5401) Defines "antiquities" as historic or prehistoric ruins and other archeological sites, including evidence of such features as constructions or inscriptions by human agency or other evidence of human activity having antiquity, but not including any unmarked burial site subject to the provisions of the Kansas Unmarked Burial Sites Preservation Act. (5402) Establishes the Kansas Antiquities Commission, to be composed of the following persons or their designees: the secretary of the State Historical Society, who shall be the chairman of the commission; the heads of the departments of anthropology of the University of Kansas, Kansas State University and Wichita State University; and the state archeologist on the staff of the State Historical Society, who shall be the secretary of the commission. (5403) Prohibits any individual, institution or corporation from excavating in, removing material from, vandalizing or defacing any site or area set out in 74-5401, on lands belonging to or controlled by the state of Kansas or any agency thereof, or to any county or municipality in the state, or on lands in which a qualified agency is conducting scientific archeological investigations, without specific authorization. (5404) Authorizes the commission, through its secretary, to grant permits under such limitations and for such periods of time as the secretary may determine, to educational or research institutions, public museums or nonprofit corporations organized for scientific and research purposes. Directs that such permits may authorize such entities to excavate, remove materials, or otherwise scientifically investigate by recognized professional techniques if, in the opinion of the commission, they have the professional staff and the laboratory, storage and/or museum display facilities to make available to the public the professional knowledge gained and to preserve permanently all objects, photographs and other records of their investigations in public repositories under their own supervision or control. Directs that a permit may be issued only after the submittal of a formal written request to the commission detailing the purposes of the proposed investigation, the location in which it is to be conducted, the sponsoring agency and the professional personnel to be in charge. (5405) Grants ipso facto permission to conduct scientific investigations to the agencies represented by the members of the commission and to other official agencies of the state that employ a specifically entitled archeological research staff and have facilities for laboratory and storage and for publications of scientific reports. (5406) Requires that artifacts and other materials recovered from such scientific investigations, if and when they are not needed or are no longer desired for retention by the original investigating agency, to be submitted to the State Historical Society for preservation, if the society so desires. (5407) Requires any person in charge of any survey, excavation or construction on any of the above defined lands to report discoveries of objects, ruins or other antiquities to the secretary of the commission or, at the informant's discretion, to one of the other members of the commission. Directs the reporting official to take all reasonable precautions to preserve the discovery until it can be investigated by the commission or its designated agent. (5408) Declares a person, institution or corporation in violation of any provision of this act to be guilty of a misdemeanor punishable by a fine not exceeding $500 or imprisonment not to exceed six months, or both. Requires all material collected by a convicted offender to be delivered to the State Historical Society.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority
    • Violation / Penalty / Enforcement

Code Book: Kansas Statutes
Citation: 75-2724
Section Title: Government projects; procedure for determining if threat to historic property

Summary:

(a) Prohibits the state or any political subdivision of the state, or any instrumentality thereof, from undertaking any project that will encroach upon, damage or destroy any historic property included in the national or state registers of historic places or the environs of such property until the state historic preservation officer (SHPO) has been given notice and an opportunity to investigate and comment upon the proposed project. Requires that notice to the SHPO shall be given by the state or any political subdivision when the proposed project, or any portion thereof, is located with 500 feet of the boundaries of a historic property located within the corporate limits of a city, or within 1,000 feet of the boundaries of a historic property located in the unincorporated portion of a county. Authorizes the SHPO to solicit the advice of the historic sites board with respect to such project and to hold a public hearing thereon. Prohibits a project from proceeding if the SHPO determines, with or without having been given notice of the proposed project, that such project will encroach upon, damage or destroy any historic property included in the national or state registers or the environs of such property, until: (a) the governor, in the case of a project of the state, or the governing body of a political subdivision, in the case of a project of a political subdivision, has made a determination, based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from such use, and (b) five days' notice of such determination has been given, by certified mail, to the SHPO. (b) Allows any person aggrieved by the determination of the governor pursuant to this section to seek review of such determination in accordance with the act for judicial review and civil enforcement of agency action. Allows any person so aggrieved by the determination of a governing body to seek review of such determination in accordance with K.S.A. 60-2101 and amendments. (c) Declares that the SHPOs failure to initiate an investigation of any proposed project within 30 days from the date of receipt of notice shall constitute the SHPO's approval of such project. (d) Declares that failure of any person or entity to apply for and obtain the proper or required building or demolition permit before undertaking a project that will encroach upon, damage or destroy any historic property included in the national or state registers, or the environs of such property, shall be subject to a civil penalty not to exceed $25,000 for each violation. Authorizes the attorney general to seek such penalties through actions filed in district court.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Kansas Statutes
Citation: 75-2725
Section Title: Action to protect historic property

Summary:

Authorizes the state or any county, municipality or other political subdivision having capacity to sue and be sued, the state historical society, and any city or county historical society which has been organized for more than two years, to maintain an action in the district court having jurisdiction where an alleged violation occurred or is threatened for such equitable and declaratory relief as may be necessary to enforce the provisions of this act and to protect historic property from unauthorized or improper demolition, alteration or transfer.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Kansas Statutes
Citation: 75-2741 through 75-2745
Section Title: Unmarked Burial Sites Preservation Act

Summary:

Declares the purpose of this act to be to provide adequate protection for unmarked burial sites and human skeletal remains located on all lands within the state, to prohibit unauthorized disturbances of any unmarked burial sites and to provide procedures for the proper care and protection of unmarked burial sites and human skeletal remains found in the state. Creates the Unmarked Burial Sites Preservation Board, attached to the state historical society. Directs that the board shall consist of the following: the state archeologist, who shall serve as chairperson; a physical anthropologist appointed by the governor, who is employed by an institution of higher education in the state; a historian appointed by the governor, who is employed by the state historical society or an institution of higher education in the state; four tribal representatives, one from each of the Pottawatomie, Kickapoo, Iowa and Sac and Fox tribes, to be selected by the governing body of the respective tribe; and two members appointed by the governor to represent the general public. Directs that the secretary of the state historical society shall serve as secretary of the board. Directs the board to: provide for the establishment and maintenance of a registry of unmarked burial sites in the state; consult with all interested parties on occasions of disturbance, or threatened or potential disturbance, of unmarked burial sites to determine a proper course of action; initiate necessary action by the attorney general for the enforcement of this act; issue permits for the excavation, study, display and reinterment or disposition of human skeletal remains from unmarked burial sites and goods interred with such remains; and adopt such rules and regulations as necessary to administer and enforce the provisions of this act.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Kansas Statutes
Citation: 75-2746
Section Title: Unmarked Burial Sites Preservation Act: registry

Summary:

Directs the Unmarked Burial Sites Preservation Board to enter each unmarked burial site located in the state which becomes known to the board in the registry established pursuant to 75-2745. Requires the board, to identify, to the extent possible, the cultural or personal identity of the deceased person or persons interred at the site and to notify each landowner on whose property a registered unmarked burial site is located. Directs that the unmarked burial sites registry shall be confidential and shall not be open to inspection except as provided by rules and regulations of the board.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Survey / Inventory of Sites

Code Book: Kansas Statutes
Citation: 75-2747
Section Title: Unmarked Burial Sites Preservation Act: permits

Summary:

Directs the Unmarked Burial Sites Preservation Board to establish by rules and regulations a system of permits for the excavation, study, display and reinterment or disposition of human skeletal remains from unmarked burial sites and any goods interred with such remains. Allows such a permit to be issued only for study by a bona fide research, medical or educational institution for research, medical or educational purposes, as determined in accordance with rules and regulations of the board, or for display by the same types of institutions for the same purposes. Allows the permit to be valid for one year, and to be extended by the board upon need for six month periods. Requires the permit to provide for reinterment or disposition of the disinterred remains or goods by a specific date. Requires that permittees pay all costs incurred, including costs of excavation, study and disposition. Requires the board to consult with American Indian tribes prior to issuing a permit for the excavation, study, display or reinterment or disposition of human skeletal remains or burial goods reasonably identified with such tribes. Authorizes the board to deny, suspend or revoke any permit upon finding that the applicant or permittee has violated any provision of this act or any term, condition or procedure of a permit issued by the board. Requires the board to fix an application fee for such permits and authorizes the board to establish classes of permits and to fix a different fee for each class, with no fee exceeding $50.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Permit / Site Investigation Authority

Code Book: Kansas Statutes
Citation: 75-2748
Section Title: Unmarked Burial Sites Preservation Act: prohibited acts; penalties

Summary:

Declares that, on and after January 1, 1990, no person shall willfully disturb an unmarked burial site; knowingly possess, display, sell, trade, give away, throw away or discard human skeletal remains known to have been from an unmarked burial site, or goods interred with such remains, unless such person holds a permit issued by the Unmarked Burial Sites Protection Board. Authorizes the state historic society or institutions of higher education represented on the Kansas Antiquities Commission to possess human skeletal remains from an unmarked burial site or associated burial goods, but directs the board to review the collections of such society and institutions and report to the Legislature on or before January 13, 1992, any recommendations it has concerning human skeletal remains and burial goods that are part of such collections and are from unmarked burial sites. Exempts private collections of burial goods acquired prior to January 1, 1990, from the provisions of this section. Declares that violation of this section is a crime punishable: upon conviction of a first offense, by a fine of not more than $10,000, if the commercial and archeological value of the remains and goods involved and all costs related to their restoration and repair is $5,000 or less, or by a fine of not more than $20,000, if the value of the remains and goods involved and all costs is more than $5,000; or upon conviction of the second or a subsequent offense, by a fine of not more than $100,000. Authorizes the board, upon finding that a person has violated any provision of this section or any term of a permit issued under this act, to impose a civil fine of not more than $2,000 for each violation, in addition to or in lieu of any criminal penalty.

Primary Topic: Archeological Activities

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

Code Book: Kansas Statutes
Citation: 75-2749
Section Title: Unmarked Burial Sites Preservation Act: notice of violations; penalties

Summary:

Requires a person who knows or has reason to know that a violation of 75-2748 is being or has been committed to notify immediately the local law enforcement agency. Directs the law enforcement agency to notify the state historic society of such violation. Requires a person who discovers human skeletal remains immediately to notify the local law enforcement agency. Directs the law enforcement agency to notify the coroner, who shall notify the state historic society if the remains do not come under the coroner's jurisdiction. Declares that failure to give such notice is a misdemeanor punishable by a fine of not less than $100 or more than $500. Directs the state historical society, upon notification pursuant to this section, to assume jurisdiction over the human skeletal remains and associated burial goods. Directs the society to carry out its actions in as expeditious a manner as possible, with particular consideration given to circumstances such as construction sites, agricultural interests and next-of-kin. Authorizes the state historical society to take control of the remains and goods for purposes of study for a period of one year, or, upon showing of need, for additional periods of six months. Directs that disposition or reinterment of the remains and goods, after any period of study authorized by this section, shall be under the direction of the Unmarked Burial Sites Preservation Board.

Primary Topic: Archeological Activities

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

Code Book: Kansas Statutes
Citation: 75-2750 through 75-2754
Section Title: Unmarked Burial Sites Preservation Act: inspection warrant; attorney general; civil enforcement; cemetery for reburial of remains

Summary:

Authorizes the chairperson of the Unmarked Burial Sites Preservation Board, or a designee, to apply to a judge of the district court of a county for an inspection warrant to inspect premises located in such county for the purpose of determining compliance with this act or with the terms of a permit issued under this act. Allows the judge to issue such a warrant if there is probable cause to believe that the inspection is required to enforce the provisions of this act. Requires a local law enforcement officer to accompany the applicant during the inspection. Directs the attorney general, upon request of the board, to aid in any investigation, inspection, hearing or trial pursuant to the provisions of this act and to institute and prosecute all necessary actions or proceedings for the enforcement of this act. Requires the attorney general to confer with the board within thirty days after receipt of such request. Declares that a person who violates 75-2748 and 75-2749 may be liable for injunctive relief, damages and attorneys fees or other appropriate relief to any person with a kinship, cultural, tribal, research, scientific or educational interest in preserving the affected burial site, skeletal remains or burial goods. Directs the secretary of the state historical society to establish, with the approval of the board, a cemetery on existing state lands for the reinterment of human skeletal remains from unmarked burial sites in the state, and associated burial goods. Declares that such cemetery shall not be open to the public.

Primary Topic: Archeological Activities

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



Return to State laws
State Historic Preservation Legislation Database. Search by state and keywords for legislation.
Kansas government, preservation and state archaeological resource links.



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