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The Law and American Indian Grave Protection

Massachussets Laws

When contacted, the State Archaeologist, Brona Simon, obligingly mailed the following burial laws which had not been placed digitally. We thank her for her assistance.

Massachusetts burial laws:

Ch. 114 Section 17, Preservation of Ancient Burial Places
Ch. 38 Section 6B, Discovery of Unmarked Human Skeletal Remains etc.
Ch. 9, Section 27C, Reports to State Archaeologist (Cessation of Activities at Unmarked Burial Grounds)
Ch. 114 Section 18, Care of Neglected Burial Places
Ch. 272 Section 71, Violation of Sepulchure
Ch. 272 Section 73, Injuring or Removing Tombs, Graves, Memorials, etc
Ch. 272 Section 73a, Removal of Gravestones for Repair etc.
950 CMR 41, Rules and Regulations for Gravestone Repair and Reproduction
Chapter 9: Section 26A. State archaeologist: duties, reservation of lands from sale; cooperation of governmental agencies.

The State Archaeologist also mailed this fact sheet of "Information and Assistance from the Massachusetts Historical Commission":

What to Do When Human Burials are Accidentally Uncovered

1. Why are bones sometimes found?

In Massachusetts, many unmarked graves exist without gravestones, fences, tombstones or other surface indications of their presence. These are chiefly the graves of prehistoric and historic Indians, which may never have been marked at all; and graves which had been identified at one time in the past, but the markings are no longer visible. As a result, bones are often found during ordinary ground disturbance activities such as the construction of new homes, utilities, or roads; in the agricultural or industrial use of a site, or the excavation of sand or gravel buorrow. Bones are also sometimes found eroding out of areas exposed by natural erosion, floodwater scouring, or sand dune formation.

A new law has been enacted which establishes procedures to follow when human bones are accidentally discovered.

2. Who is involved?

Private citizens, State and Local Police, Medical Examiners, State Archaeologist, nand the Commision on Indian Affairs.

3. What should you do if you discover bones?

Do not touch or disturb the bones. Notify the state or local police and the regional medical examiner about the discovery and location.

4. What does the Medical Examiner do?

The Medical Examiner investigates the discovery to determine whether the bones are human, and whether they are recent or more than 100 years old. If the bones are less than 100 years old, a criminal investigation may be warranted. If the bones are more than 100 years old, the Medical Examiner then notifies the State Archaeologist, who immediately conducts an archaeological investigation of the site. Throughout these investigations, the police authorities must insure that the site is protected from further damage.

5. What does the State Archaeologist do?

The State Archaeologist investigates the site to determine the age, cultural association and identity of the burial. If the State Archaeologist determines that the burial is that of a Native American, the Commission on Indian Affairs is notified. The State Archaeologist consults with the landowner to determine whether the burial can remain undisturbed. In the case of development projects, the owner and State Archaeologist discuss whether there are prudent and feasible steps the owner can take to protect the burial. If it is impossible to avoid future harm to the burial, the State Archaeologist removes the remains.

6. What does the Commission on Indian Affairs do?

The archaeological investigation of Indian burials is monitored by the Commission on Indian Affairs to insure that the remains are treated respectfully.

Please remember: Once bones or artifacts are removed from the site, valuable information concerning th identity and age of the human remains is lost. Therefore, it is important not to disturb the site in any way until the State Archaeologist can conduct an investiagion and record the discovery.

Bibliography
Massachusetts General Laws, Chapter 38, section 6B; Chapter 9, section 26 A and 27 C; Chapter 7, section 38 A; Chapter 114, section 17; as amended by Chapter 659 of the Actos of 1983 and Chapter 386 of the Actos of 1989.

For Further Information
Please contact the State Archaeologist at the Massachusetts Historical Commission.


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: Massachusetts General Laws
Citation: Ch. 6A, 8A
Section Title: Commission on Indian Affairs

Summary:

Creates the Commission on Indian Affairs in the Executive Office of Communities and Development to consist of seven members appointed by the governor, all of whom shall be of American Indian descent and shall represent the major tribes located within the commonwealth. Directs the commission to provide for the burial expenses, up to $300, for the remains of any person whose previously unknown grave has been disturbed, forcing its relocation, and whose identity has been determined by the state archeologist to be that of an American Indian.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Native American / Indian Affairs Commission / Office / Board

Code Book: Massachusetts Gen
Citation: Ch. 7, 38A
Section Title: Skeletal remains; preservation; excavation; analysis

Summary:

Enables the Commission on Indian Affairs to evaluate any site in the commonwealth where human skeletal remains are discovered to determine if such remains are American Indian. Requires the owner of the land where any American Indian skeletal remains are discovered to consult with the commission and the state archeologist to determine whether prudent and feasible alternatives exist to avoid, minimize or mitigate harm to the Indian burial site. Requires the state archeologist to excavate the remains under the supervision of the commission if it is not feasible to preserve the remains in the burial site. Directs that any final plan or agreement may include the following provisions: to preserve the remains in situ; to conduct additional scientific or archeological research with the approval of the commissioner on Indian Affairs; to reinter the remains immediately; or to execute a preservation restriction pursuant to Ch. 184, 32. Directs the state archeologist and the commission to determine whether analysis of any American Indian skeletal remains shall be conducted and requires such analysis to be completed within one year, or, upon determination by the commission, for more than one year. Directs the commission to reinter the remains when such analysis is completed.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Native American / Indian Affairs Commission / Office / Board

Code Book: Massachusetts General Laws
Citation: Ch. 9, 26A
Section Title: State archeologist; duties; reservation of lands from sale; cooperation of governmental agencies

Summary:

Directs the state archeologist to carry out the following duties: compile and maintain an inventory of historical and archeological sites and specimens, which shall not be a public record; conduct surveys and field investigations; recommend sites to be considered for state archeological landmarks or for the execution of preservation or conservation restrictions; issue permits for exploration or field investigations; notify the Commission on Indian Affairs regarding the discovery of American Indian burial sites in the commonwealth; conduct site evaluations of unmarked human burials and skeletal remains suspected of being one hundred years old or more; and arrange for the disposition of non-native human remains suspected of being one hundred years old or more, including determining whether a skeletal analysis should be conducted, and following such analysis, whether the remains should be reinterred or deposited in a curatorial facility. Enables the Massachusetts Historical Commission to recommend by written notice to the state secretary the reservation from sale of any land owned by the commonwealth or a political subdivision on which sites or specimens are located or may be found, as designated by the state archeologist. Directs all agencies of the commonwealth or any political subdivision to cooperate fully with the state archeologist in the preservation, protection, excavation and evaluation of specimens and sites.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Permit / Site Investigation Authority
Primary Topic: Restricted / Confidential Information
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: State Historic Preservation Entities
    Secondary Topic:
    • State Archeologist / Archeology Program

Code Book: Massachusetts General Laws
Citation: Ch. 9, 27
Section Title: Certification of historic or archeological landmarks; standards for care and management; alteration of landmarks; field investigation of sites

Summary:

Enables the Massachusetts Historical Commission to certify as a historic landmark any site or structure which it deems to have substantial historical significance, or, upon recommendation of the state archeologist, to certify as an archeological landmark any sites which it deems to have substantial archeological significance. Requires the written consent of the owner or owners for such certification to take effect regarding private property. Requires the consent of the governor for the commission to certify landmarks owned by the commonwealth; the consent of the city manager or mayor and the city council to certify those owned by a city; and the consent of a town's selectmen to certify those owned by a town. Requires such certification to be recorded in the registry of deeds in the county where a landmark is located. Enables the commission to establish standards of maintenance, care and management of certified landmarks and to withdraw certification for failure of the owner to maintain such standards. Prohibits the alteration of a historic landmark, without permission of the commission, in a manner that would seriously impair its historic value. Prohibits any field investigation on the site of a certified archeological landmark without first obtaining a permit from the state archeologist.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Massachusetts General Laws
Citation: Ch. 9, 27C
Section Title: Projects; notice; adverse effect; review

Summary:

Requires a state agency to notify the Massachusetts Historical Commission as early as possible in the planning process regarding all projects undertaken, funded or licensed by the agency. Directs the commission to determine within 30 days of receipt of such notice whether the project will have any adverse effect on any property listed in the state register of historic places. Requires the state agency undertaking the project or the private entity proposing the project to adopt all prudent and feasible means to eliminate, minimize or mitigate any adverse effects on a historic property, provided that the property was included in the inventory of the historic assets of the commonwealth within 30 days of submission of the application by the agency. Requires notification of the state archeologist upon discovery of any archeological, paleontological or historical site or object during any survey, construction, or excavation on any lands of the commonwealth or its political subdivisions and directs that all reasonable steps be taken to secure the preservation of such sites or objects. Requires a permit from the state archeologist before conducting field investigations on land owned or controlled by the commonwealth or its political subdivisions, certified historic or archeological landmarks or lands restricted by a conservation easement. Declares that any person, corporation, agency, authority or political subdivision of the commonwealth who shall conduct field investigations on any land owned or controlled by the commonwealth, its agencies or political subdivisions in which the commonwealth has an interest, without first obtaining a permit as provided in this section, or who shall appropriate, deface, destroy, or otherwise alter any site, specimen or landmark except in the course of activities authorized under said permit, shall be guilty of a misdemeanor punishable by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both. Directs that all specimens, objects and materials collected or excavated in violation of this section shall be forfeited to the commonwealth. Declares that any person, corporation, agency, authority or political subdivision of the commonwealth who shall reproduce, retouch, rework, or forge any archeological, paleontological or historical object, or falsely identify or offer for sale or exchange any object, with intent to represent said object as a genuine archeological, paleontological or historical object, or any person who shall offer for sale or exchange any object with knowledge that it has been previously collected or excavated in violation of this section shall be guilty of a misdemeanor punishable by a fine of not more than $500 or by imprisonment for not more than six months, or both. Directs that any person, corporation, agency, authority or political subdivision of the commonwealth who shall discover unmarked human burials or skeletal remains suspected of being one hundred years of age or more shall immediately cease any activity, including construction and agricultural activity which would deface, alter, destroy or otherwise impair the integrity of the site until such time as the state archeologist has completed a site evaluation pursuant and until disposition of the remains has been agreed.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Permit / Site Investigation Authority
    • Violation / Penalty / Enforcement
Primary Topic: Publicly Owned / Affected Historic Property--state policy
    Secondary Topic:
    • Review and Compliance

Code Book: Massachusetts General Laws
Citation: Ch. 38, 6
Section Title: Discovery of skeletal remains likely to be Native American

Summary:

Requires the state archeologist to be informed if skeletal remains are discovered that are likely to be Native American. Directs the state archeologist in turn to notify the Commission on Indian Affairs, which shall cause a site evaluation to be made to determine if the place where said remains were found is a Native American burial site.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Native American / Indian Affairs Commission / Office / Board

Code Book: Massachusetts General Laws
Citation: Ch. 114, 17
Section Title: Preservation of ancient burial places

Summary:

Prohibits a town from alienating or appropriating to any other use than that of a burial ground, any tract of land which has been used as a burial place for more than one hundred years, including any unmarked burial grounds known or suspected to contain the remains of one or more American Indian.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: Local Government
    Secondary Topic:
    • City / Town / Village
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Cemetery / Gravestone

Code Book: Massachusetts General Laws
Citation: Ch. 214, 7A
Section Title: Damage to the environment; temporary restraining order

Summary:

Enables the superior court of a county, upon civil action being sought for equitable or declaratory relief by no fewer than ten plaintiffs living within the commonwealth, to restrain a person or persons, either public or private, causing or about to cause damage to the environment, including historic districts or sites. Requires that the damage caused or about to be caused shall constitute a violation of a statute, ordinance, by-law, or regulation the major purpose of which is to prevent or minimize damage to the environment.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement



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



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