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The Law and American Indian Grave Protection

Nebraska Laws

When contacted as to Indian burial ground laws 2001 April, Rob Bozell, State Archaeologist, referred us to statute citation Chapter 12-1201 through 12-1212. To access full text go to statutes.unicam.state.ne.us/, and click on "Statutes". On the next page that appears, click on 12-cemeteries. From here you can access 1201-1212 by doing a search for 12-1201, 12-1202 etc.

Nebraska's law regarding unmarked burials stipulates: Under the provisions of the Nebraska Unmarked Human Skeletal Remains and Burial Goods Protection Act, when human skeletal remains and burial goods are discovered and law enforcement determines a crime is not involved, division staff will be contacted by the appropriate county attorney's office. Staff are required to conduct an onsite investigation to determine the origin and identity of the remains and promptly relate our finding in writing to the county attorney and interested parties, who may include: a descendant Indian Tribe, a descendant family, or the Nebraska Indian Commission. Field evaluations may consist of inspection of disinterred or intact remains or artifacts. Disinterred remains may be collected and turned over to descendent parties or the county attorney for reburial. Intact remains are to be left in place. The only specified exception to this procedure involves intact materials encountered during public highway, road, or street construction. These remains may be excavated and reinterred to allow continuation of construction. Resource info Nebraska State Historical Society.

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

NE - Tribe gets remains under new state law -- (13 Nov 2002)

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


Code Book: Revised Statutes of Nebraska
Citation: 12- 805 through 12- 806.01
Section Title: Abandoned and neglected cemeteries: Indian burial grounds

Summary:

(12- 805) Enables a county board of commissioners to expend money from the general fund of the county for the care and maintenance of each abandoned and neglected cemetery and Indian burial ground as follows: (1) not to exceed $350 in any one year when the cemetery is totally abandoned; or (2) not to exceed $300 in any one year when the cemetery is partially abandoned. Allows such care and maintenance to include the repair or building of fences and annual spraying for the control of weeds and brush. (12- 806) Authorizes the county board to include in the budget for the next fiscal year an item for care of an abandoned and neglected cemeteries. (12- 806.1) Requires the county board to have posted at each abandoned or neglected cemetery or Indian burial ground within the board's jurisdiction a conspicuous sign or marker designating such area to be abandoned or neglected.

Primary Topic: Local Government

    Secondary Topic:
    • County
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Cemetery / Gravestone

Code Book: Revised Statutes of Nebraska
Citation: 12-1201 through 12-1204
Section Title: Unmarked Human Burial Sites and Skeletal Remains Protection Act

Summary:

Declares the purposes of this act to be to: assure that all human burials are accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds or religious affiliations by providing adequate protection for unmarked human burial sites and human skeletal remains located on all private and public lands in the state; prohibit disturbance of unmarked human burial sites except as expressly permitted by this act; establish procedures for the proper care and protection of unmarked human burial sites, human skeletal remains and burial goods found in the state; ensure that all unmarked human burial sites discovered in the state are to be left undisturbed to the maximum extent possible unless such sites are: in reasonable danger of destruction; must be moved for a highway, road or street construction project; or there is evidence of criminal wrongdoing; ensure, when any unmarked human burial site must be disturbed for any of the listed reasons, that the disposition of the contents of such site is carried out in accordance with this act ; and permit the scientific study and reinterment of human skeletal remains and burial goods.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Revised Statutes of Nebraska
Citation: 12-1205 through 12-1207
Section Title: Unmarked human burial sites: discovery; violation; duties of law enforcement officer and county attorney

Summary:

Requires a person who encounters or discovers human skeletal remains or burial goods associated with an unmarked human burial in or on the ground to cease immediately any activity that may cause further disturbance to the burial and to notify within forty-eight hours the local law enforcement officer in the county of the presence and location of such remains or goods. Directs that, if any employee, contractor or agent of the Department of Roads discovers human skeletal remains or burial goods in conjunction with highway construction, any construction in the area immediately adjacent to such remains or goods shall cease and the department or its employees, contractors or agents shall within forty-eight hours notify the local law enforcement officer in the county of the presence and location of such remains or goods. Authorizes the remains or goods to be removed from the site following an examination by the appropriate agency in accordance with 39-1363 and any applicable federal requirements. Requires the remains, following removal, to be disposed of in accordance with the provisions of this act. Allows the construction project to continue once the remains or goods have been removed. Requires the local law enforcement officer who receives such notification from any person or any employee, contractor or agent of the Department of Roads to notify promptly the land owner on whose property the remains or goods were discovered, the county attorney and the Nebraska State Historical Society. Requires the county attorney, upon notification, to determine whether the remains are associated with a crime, and if so, to retain custody of the remains.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Transportation / Highways

Code Book: Revised Statutes of Nebraska
Citation: 12-1208
Section Title: Unmarked human burial sites: duties of state historical society

Summary:

(1) Directs the Nebraska State Historical Society, upon notification of the local law enforcement officer pursuant to 12-1206 to assist promptly in examining the discovered material to attempt to determine its origin and identity. (2) Directs the society, if it finds that discovered human skeletal remains or burial goods are of non-American Indian origin with a known or unknown identity, to report the finding to the county attorney, who shall cause the remains and associated burial goods to be interred in consultation with the county coroner. Directs that reburial shall be in accordance with the wishes and at the expense of any known relatives or, if no relatives are known, in an appropriate cemetery at the expense of the county in which the remains were discovered after a one-year scientific study period if such period is considered necessary or desirable by the society. Prohibits any human skeletal remains that are reasonably identifiable as to familial or tribal origin from being displayed by any entity that receives funding or official recognition from the state or any of its political subdivisions. Allows the society to curate human skeletal remains that are unidentifiable as to familial or tribal origin but that the society considers to be of extremely important, irreplaceable and intrinsic scientific value until the remains or goods can be reinterred as provided in the subsection without impairing the scientific value of the remains or goods. (3) Directs the society, if it finds that discovered human skeletal remains or burial goods are of American Indian origin, to notify in writing the Commission on Indian Affairs and any known relatives in the order listed in 71-1339 or, if no relatives are known, any Indian tribes reasonably identified as tribally linked to such remains or goods to ascertain and follow the wishes of the relative or Indian tribe, if any, as to reburial or other disposition. Requires reburial to be at the expense of any relative or Indian tribe, or, if the remains are unclaimed, to be carried out in the manner provided in subsection 2.

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: Revised Statutes of Nebraska
Citation: 12-1209 through 12-1211
Section Title: Unmarked human burial sites: possession or control of remains or burial goods

Summary:

Requires any institution, agency, organization or other entity in the state that receives funding or official recognition from the state or any of its political subdivisions to return any disinterred human skeletal remains or burial goods of American Indian origin that it has in its possession or control on August 25, 1989, to any identified relative or Indian tribe for reburial, upon request of such relative or Indian tribe, or otherwise to cause such remains or goods to be reinterred pursuant to subsections 2 and 3 of 12-1208 within one year of receiving such request. Requires the institution, agency, organization or other entity, at least 90 days prior to the date for return established by statute, to provide the requesting relative or Indian tribe with an itemized inventory of any human skeletal remains and burial goods that are subject to return of the requesting relative or tribe. Requires the transferor and transferee, upon transfer of such remains or goods, to sign a transfer document that identified by inventory number and description each human skeletal remain or burial good being transferred. Requires parties in dispute regarding this act to seek third party resolution according to procedures established by this section. Directs the public counsel to serve as arbiter if the parties cannot agree on designation of a third party. Requires a decision to be rendered in such arbitration within 195 days of filing of the original grievance, following the mandated meetings among the parties and the notification, filing and review periods. Allows either party to appeal a decision reached in such arbitration. Allows the party in possession of the human remains or burial goods to retain possession until the arbitration process and appeals are 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

Code Book: Revised Statutes of Nebraska
Citation: 12-1212
Section Title: Unmarked human burial sites: dispute resolution procedure; civil action

Summary:

Allows any person, Indian tribe or Indian tribal member to have a civil cause of action against any person alleged to have violated the Unmarked Human Burial Sites and Skeletal Remains Protection Act or 28-1301. Requires the action to be brought by the plaintiff within two years of discovery of the alleged violation or within two years of August 25, 1989, whichever is later. Requires the action to be filed either in the district court of the county in which the unmarked human burial, human skeletal remains or burial goods are located or in which the defendant resides. Authorizes the court, if the plaintiff prevails, to award reasonable attorney's fees to the plaintiff and may grant injunctive or other appropriate relief, including forfeiture of any human skeletal remains or burial goods acquired as a result of or equipment used in the violation. Directs the court to order the disposition of any items forfeited, including the reinterment of any human skeletal remains or burial goods pursuant to this act. Allows the plaintiff to recover actual damages for each violation.

Primary Topic: Archeological Activities

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

Code Book: Revised Statutes of Nebraska
Citation: 28-1301
Section Title: Human skeletal remains or burial goods: prohibited acts; penalties

Summary:

Declares that a person commits the offense of removing, abandoning or concealing human skeletal remains or burial goods if he or she: knowingly digs up, disinters, removes or carries away from its place of deposit or burial any such remains or goods, attempts to do the same or aids, incites, assists, encourages or procures the same to be done; knowingly throws away or abandons any such remains or goods in any place other than a regular place for burial and under a proper death certificate; or receives, conceals, purchases, sells, transports, trades or disposes of any such remains or goods if the person knows or has reason to know that such remains or goods have been dug up, disinterred or removed from their place of deposit or burial or have not been reported in a proper death certificate, attempts to do the same or aids, incites, assists, encourages or procures the same to be done. Exempts from the provisions of this section a professional archeologist engaged in an otherwise lawful and scholarly excavation of a nonburial site who unintentionally encounters human skeletal remains or associated burial goods if the archeologist complies with the notification requirements of the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or any archeological excavation by the Nebraska State Historical Society or its designee in the course of execution of the duties of the society if any human skeletal remains or associated burial goods discovered during such excavation are disposed of pursuant to 12-1208. Declares violation of this section to be a Class I misdemeanor.

Primary Topic: Archeological Activities

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

Code Book: Revised Statutes of Nebraska
Citation: 84-712.05
Section Title: Records that may be withheld from the public

Summary:

(12) Exempts records or portions of records from disclosure to the public that are kept by public bodies which would reveal the location, character or ownership of any known archeological, historical or paleontological site in Nebraska when necessary to protect the site from a reasonably held fear of theft, vandalism or trespass. Declares that this section shall not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes under the Unmarked Human Burial Sites and Skeletal Remains Act or the federal Native American Graves Protection and Repatriation Act. (13) Exempts from disclosure records or portions of records kept by public bodies which maintain collections of archeological, historical or paleontological significance which reveal the names and addresses of donors of such articles of archeological, historical or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Act or the federal Native American Graves Protection and Repatriation Act.

Primary Topic: Archeological Activities

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



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Nebraska government, preservation and state archaeological resource links.



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