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The Law and American Indian Grave Protection

Montana Laws

When contacted as to burial law, the Montana state archaeologist stated a new repatriation bill is now in Montana's Legislature (2001 April). To review the bill and its status go here.

Onsite summary text of Montana's present law pertaining to Indian Burial Grounds. Offsite summary resource.

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: Montana Code
Citation: 22-3- 432
Section Title: Antiquities: permits

Summary:

(1) Prohibits a person from excavating, removing or restoring any heritage property or paleontological remains on lands owned by the state without first obtaining an antiquities permit from the historic preservation officer. (2) Requires strict compliance with the following guidelines: (a) permits may be granted only to reputable museums, universities, colleges or other historical, scientific or educational institutions, societies or persons with a view toward dissemination of knowledge about cultural properties, provided that the historic preservation officer must be satisfied that the applicant possesses the necessary qualifications to guarantee the property excavation of those sites and objects; and (b) a permit must specify that a summary report of such investigation, containing relevant maps, documents, drawings and photographs, must be submitted to the historic preservation officer, within a specific time period to be determined by the historic preservation officer. (3) Directs that all heritage property and paleontological remains collected under an antiquities permit are the permanent property of the state and must be deposited in museums or other institutions within the state or loaned to qualified institutions outside the state, unless otherwise provided for in the antiquities permit. (4) Declares that an antiquities permit is not a substitution for any other type of permit that a state agency may require for other purposes.

Primary Topic: Archeological Activities

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

Code Book: Montana Code
Citation: 22-3- 441
Section Title: Antiquities: restrictions on reproduction or sale of heritage property and paleontological remains

Summary:

(1) Prohibits a person from reproducing or falsely identifying any heritage property or paleontological remains with the intent to sell the property or remains as an original. (2) Prohibits a person from selling any heritage property or paleontological remains with the knowledge that the property or remains have previously been collected or excavated in violation of this section, 22-3-432 or 22-3-435.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Montana Code
Citation: 22-3- 442
Section Title: Antiquities: criminal penalty

Summary:

Declares that any person violating any provision of 22-3-432, 22-3-435 or 22-3-441 is guilty of a misdemeanor and upon conviction shall be fined not more than $1,000 or be imprisoned in the county jail for not more than six months, or both, with each day of continued violation constituting a distinct and separate offense.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Montana Code
Citation: 22-3- 801 through 22-3- 803
Section Title: Human Skeletal Remains and Burial Site Protection Act: intent

Summary:

Declares it to be the intent of the Legislature to: ensure that all burials are accorded equal treatment and respect for human dignity without reference to ethnic origin, cultural background or religious affiliation; provide adequate protection for all interests related to any burial site encountered during archeological excavation or agricultural, mining, construction or other ground-disturbing activity on state and private lands without causing undue delay or hardship for any person who has an interest in using the land on which the burial site is located; recognize the interests, concerns and obligations of those having a kinship, tribal, cultural or religious affiliation with the burial site and balance those interests against the interests of scientists, land owners and developers; provide an exemption to public disclosure laws regarding the location of burial sites; and recognize the need for forensic examination of human skeletal remains, burial sites and burial material.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Montana Code
Citation: 22-3- 804
Section Title: Human Skeletal Remains and Burial Site Protection Act: Burial Preservation Board

Summary:

Creates the Burial Preservation Board composed of members appointed by the governor: one representative of each of the seven reservations in the state from a list of up to three nominees provided by each of the respective tribal governments; one person from a list of up to three nominees submitted by the Little Shell band of Chippewa Indians; one person from a list of up to three nominees submitted by the state historic preservation officer; one person from a list of up to three nominees submitted by the Montana Archeological Association; one physical anthropologist; one representative from a list of up to three nominees submitted by the Montana Coroners' Association; one public member not associated with tribal government, state government, the fields of historic preservation, archeology or anthropology or the coroners' association. Directs the board to: provide for the establishment and maintenance of a registry of burial sites located in the state; designate the appropriate members or representatives of the board to conduct a field review upon notification of the discovery of human skeletal remains, a burial site or burial materials; assist interested land owners in the development of agreements with the board for the treatment and disposition of human skeletal remains and burial material; assume responsibility for final treatment and disposition of human skeletal remains and burial material if the field review recommendation is not accepted by the board's representative and the land owner; issue permits authorizing scientific analysis of human skeletal remains or burial material, and establish a fee not to exceed $50 for such permits; and accept grants, adopt rules and perform any other duties necessary to implement the provisions of this part.

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 Historic Preservation Entities
    Secondary Topic:
    • Burial Sites Board / Commission

Code Book: Montana Code
Citation: 22-3- 805
Section Title: Human Skeletal Remains and Burial Site Protection Act: discovery; reporting; field review

Summary:

Requires a person who by archeological excavation or by agricultural, mining, construction or other ground-disturbing activity discovers human skeletal remains, a burial site or burial material to notify the county coroner immediately and to cease such activities until the coroner has determined, within two days of notification, whether a forensic examination under the coroner's jurisdiction is necessary. Directs the coroner, if the remains are not subject to forensic examination, to notify the state historic preservation officer within twenty-four hours, who shall, in turn, contact either the land owner and the Burial Preservation Board or the board member representing the nearest reservation and notify them of the discovery of human skeletal remains, a burial site or burial material. Directs the board, within thirty-six hours of notification, to designate representatives to conduct and initial field review, with permission of the land owner. Requires the field review to be completed with thirty-six hours, or a reasonable extension as approved by the land owner, and to include: a determination of whether the site can be preserved; negotiation with the land owner concerning onsite reburial or disinterment and reburial; and a recommendation, including a time frame, concerning final treatment or disposition of the remains or burial material. Requires the human skeletal remains to be removed and control vested in the board if, within forty days after notification to the board, the board's representatives fail to make a recommendation regarding disposition or if the land owner and the board cannot agree and mediation fails to provide a resolution acceptable to the land owner and the board. Directs the board to give control of the remains or materials for final disposition in the following priority to: any identified descendants; the tribe or other cultural group that has the closest cultural affiliation with the remains; the tribe or other cultural group recognized as having aboriginally or historically occupied the area where the remains were discovered, if such group states a claim for the remains; the board, if the remains are unclaimed by any tribe or cultural group.

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

Code Book: Montana Code
Citation: 22-3- 806
Section Title: Human Skeletal Remains and Burial Site Protection Act: scientific analysis; permit

Summary:

Authorizes the Burial Preservation Board to grant a permit for the scientific removal and analysis of human skeletal remains and burial material upon proof and determination by the board that the analysis is scientifically justifiable. Requires the applicant to pay a nonrefundable fee and to submit a brief narrative describing the methodology to be used, the time frame needed to complete the scientific study and other information specifically requested by the board. Requires the state historic preservation officer and the physical anthropologist on the board to review the methodology and make a recommendation to the full board. Limits the time frame for such study to twelve months. Subjects a permit to terms, conditions and procedures prescribed by the board, including the condition that a permittee shall pay all costs of excavation, study and disposition. Requires the board to approve or deny application for a permit within thirty working days from the date of the permit petition and, upon denial, to provide a written statement outlining the board's grounds for its finding. Authorizes the board to revoke a permit upon finding that the permittee has violated any provision of this part or any term, condition or procedure of a permit issued by the board.

Primary Topic: Archeological Activities

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

Code Book: Montana Code
Citation: 22-3- 807
Section Title: Human Skeletal Remains and Burial Site Protection Act: nondisclosure of records

Summary:

Directs the state historic preservation officer, in consultation with the Burial Preservation Board, to maintain burial site records separate and distinct from those in the cultural resource registry. Declares that burial site records are confidential and available only to criminal justice agencies or to federal, state and tribal personnel or their appointed representatives legally charged with administering laws protecting cultural resources. Requires that statistical information from burial site records must be made available to the general public.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
Primary Topic: Restricted / Confidential Information
    Secondary Topic:
    • [No secondary topics.]

Code Book: Montana Code
Citation: 22-3- 808 through 22-3- 809
Section Title: Human Skeletal Remains and Burial Site Protection Act: prohibited acts; penalties; civil action

Summary:

Declares that, after July 1, 1991, unless authorized under this part or by the descendants, tribe, cultural group or other person, group or entity to which the board gives control of human skeletal remains or burial material, a person may not: (1)(a) purposely or knowingly pilfer, disturb or destroy a marked, unmarked, unrecorded, registered or unregistered grave or burial ground or burial material, or permit such actions; (1)(b) knowingly and for commercial reasons possess, buy, sell, transport, barter or display human skeletal remains or burial material acquired in violation of this part; or (1)(c) purposely or knowingly disclose information knowing that it is highly probable that the disclosure will lead to pilferage, disturbance or destruction of a burial site. Declares that a person convicted under the provisions of subsection (1)(a) may be fined an amount not to exceed $1,000, or imprisoned in the county jail for not more than six months, or both, and, upon subsequent violations of subsection (1)(a) may be fined an amount not to exceed $20,000, or imprisoned for not more than five years, or both. Declares that a person convicted under the provisions of subsection (1)(b) may be fined an amount not to exceed $50,000, or imprisoned for not more than twenty years, or both. Declares that a person convicted under the provisions of subsection (1)(c) may be fined an amount not to exceed $500, or imprisoned for not more than six months, or both, and upon subsequent violations of subsection (1)(c) may be fined an amount not to exceed $10,000, or be imprisoned for not more than five years, or both. Declares that a person who knowingly fails to give notice of the discovery of human skeletal remains during archeological investigation or other ground-disturbing activity as required by 22-3-805 may be fined an amount not less than $100 or more than $500. Declares that a person who violates a provision of this section or any term or condition of a permit issued under 22-3-806 is subject to a civil penalty not to exceed $2,000 for the first violation or not to exceed $10,000 for a subsequent violation. Declares that this part does not preclude civil actions for damages and allows the Burial Preservation Board to bring an action against the previously referenced violations for a civil penalty.

Primary Topic: Archeological Activities

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

Code Book: Montana Code
Citation: 22-3- 810 through 22-3- 811
Section Title: Human Skeletal Remains and Burial Site Protection Act: closure of board meetings; special revenue fund

Summary:

Authorizes the Burial Preservation Board to close part of any of its meetings to the public if the board finds that information may be acquired at that part of the meeting that may allow a person to identify a burial site, human skeletal remains or burial material and pilfer, disturb or destroy the remains, site or material. Directs the board to deposit any fee, grant or donation received under 22-3-804 into an account created in the state special revenue fund to be used to pay expenses for board meetings or expenses incurred in conducting field reviews.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
Primary Topic: Restricted / Confidential Information
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: State Historic Preservation Entities
    Secondary Topic:
    • Burial Sites Board / Commission

Code Book: Montana Code
Citation: 23-2-901 through 23-2-908
Section Title: Montana Cave Conservation Act

Summary:

(23-2-902)(4) Defines "material" as all or part of any archeological, cultural, paleontological, biological or historical item or artifact found in a cave, including but not limited to any petroglyph, pictograph, pottery, basketwork, fossil, human remains or animal remains. (23-2-903)(1)(a) Declares that a person shall not purposely or knowingly carve, write, mark upon, break, crack, burn or remove or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or material found in a cave, whether attached or broken. (2) Exempts the cave owner or the owner's authorized representative from the provisions of subsection 1. (23-2-908) Declares that a person convicted of violating any provision of this part is subject to a fine of not less than $500 or more than $2,000, imprisonment in the county jail for not more than 60 days, or both.

Primary Topic: Archeological Activities

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

Code Book: Montana Code
Citation: 82-4-201 through 82-4-254
Section Title: Montana Strip and Underground Mine Reclamation Act

Summary:

(82-4-202)(1)(d) Declares it to be the policy of the state to restore, enhance and preserve its scenic, historic, archeological, scientific, cultural and recreational sites as such sites are affected by strip mining and underground mining activity. (82-4-227)(2)(d) Allows the Department of Environmental Policy not to approve an application for a prospecting, strip-mining or underground-mining permit when the area of land described in the application includes land that has scenic, historic, archeological, topographical, geological, ethnological, scientific, cultural or recreational significance. Suggests that particular attention should be paid when applying this subsection to the inadequate preservation previously accorded Plains Indian history and culture. (82-4-228)(2)(b)(ii) Allows the Department of Environmental Policy to designate an area as unsuitable for all or certain types of strip or underground coal mining if the proposed coal mining operations will affect fragile or historic lands or could result in significant damage to important historic, cultural, scientific and aesthetic values and natural systems. (82-4-239)(6)(b) Enables the Department of Environmental Policy to acquire privately owned land by the process of eminent domain for reclamation purposes if the acquired land after restoration, reclamation, abatement, control or prevention of the adverse effects of past coal-mining practices will serve recreation and historic purposes or conservation and reclamation purposes or provide open space benefits.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues



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



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