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The Law and American Indian Grave Protection

New Hampshire Laws

When contacted April 2001 as to laws concerning Indian burial grounds, Deborah J. Gagne, of the state archaeologist's office, referred us to 227 C, the text is of which is located at sudoc.nhsl.lib.nh.us/rsa/227-C.htm.

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: New Hampshire Revised Statutes
Citation: 227-C: 8-a
Section Title: Discovery of human remains: discovery of remains and notification of authorities

Summary:

Requires any person knowing or having reasonable grounds to believe that unmarked human burials or human remains are being disturbed, destroyed, defaced, mutilated, removed or exposed to notify the county medical examiner immediately. Requires, if the burials or remains are encountered as a result of construction or agricultural activities, disturbance of the remains to cease immediately and not to resume without authorization from the medical examiner or the state archeologist. Requires a professional archeologist who encounters unmarked human burials or human remains as a result of survey or test excavations to notify the state archeologist by telephone before resuming excavation and other activities. Requires the state archeologist to notify the county medical examiner of any reported human remains discovered by a professional archeologist. Exempts from the provisions of 227-C:8-b through of 227-C:8-f a professional archeologist directing long-term systematic archeological research sponsored by any accredited institution with research interests in the state who, as a part of such research, recovers Native American remains, so long as the archeologist: notifies the state archeologist within five working days of the initial discovery of the remains; reports the status of the project to the state archeologist at agreed upon intervals; curates the remains prior to ultimate disposition; and conducts no destructive skeletal analysis without the express permission of the state archeologist. Directs the professional archeologist, upon completion of the project fieldwork, to consult with the state archeologist and the skeletal analyst to determine the schedule for the completion of the skeletal analysis, which, in the event of disagreement shall not exceed four years. Grants the director of the State Historic Preservation Office authority regarding the ultimate disposition of the Native American remains after analysis is completed.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8
Section Title: Historic preservation: division and disposition of historic resources

Summary:

Designates the commissioner of the Department of Cultural Resources as the technical custodian of all state historic resources and directs the commissioner to arrange for: the allocation between state and private custody of any historic resources recovered from a permitted field investigation; disposition of the state portion of such resources in an appropriate state institution located as close as possible to the place of origin; a preservation agreement for the portion of such resources released for private custody; the temporary loan of the historic resources to qualified persons or institutions in or out of the state; and the acquisition, disposition and placement of objects of historic importance. Requires a permittee, under the terms of the permit, to preserve, conserve and restore, as necessary, any historic resources, and to catalog and record them as specified by the department. Directs the commissioner to allocate and distribute historic resources recovered from a permitted field investigation fairly and equitably, provided that: custody of isolated finds from the surface of state lands or the bottoms of state waters is granted to the discoverer when these are brought to the Division of Historical Resources for identification and evaluation; assurances are made that the original discoverer of a previously unrecorded historic resource shall receive custody of 25% of the recovered material from subsequent field investigations of the resource in which he or she actively participates; and the formula for the division of recovered materials shall be determined by the ratio of public to private investment in a permitted field investigation, provided that no less than 25% shall be retained by the state and no more than 75% shall be released for private custody. Requires private custody of such historic resources to be governed by a perpetual preservation agreement, unless rescinded or limited by the commissioner, which shall specify conditions for protection, availability for study, bequest, sale and reversion of ownership to the state. Grants the right of initial display and final disposition of such recovered historic resources to the municipality of origin when that municipality requests such historic resources through its local museum, library, historical society, school or other institution with appropriate laboratory and storage facilities. Declares that human remains shall be investigated in accordance with 227-C:8-b through of 227-C:8-g, and that the provisions of this section, to the extent that they may be inconsistent, shall not apply. Directs that human remains that qualify as historic resources shall be fully documented before final disposition, to include: a description of skeletal material; a description of artifacts and other materials; age of the remains; and cultural association. Requires that human remains that are not subject to reinterment under 289 shall be released for reinterment and shall be disposed of according to the provisions of 227-C:8-g. Directs the Division of Historical Resources to maintain appropriate records of all historic resources.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 7
Section Title: Historic preservation: permits issued for state lands and waters

Summary:

Reserves for the state, acting through the commissioner of cultural resources, exclusive right and privilege to conduct, or cause to be conducted, field investigations of historic resources that involve the alteration of the surface or subsurface of the resources and removal of any surface or subsurface objects. Directs the commissioner to establish categories of field investigations that may yield or alter historic resources and qualification criteria for professional and avocational archeologists for all categories of field investigations. Declares that, for purposes of determining proper persons to whom permits may be issued, the original discoverer of a previously unrecorded historic resource shall be presumed to be an appropriate person to participate actively in all phases of subsequent field investigations and shall be eligible to receive a permit under the rules adopted by the commissioner, except as provided in 227-C:8-a through 8-g regarding the discovery of human remains. Directs the Division of Historical Resources to issue a permit to any person, agency or institution upon application to conduct field investigations in accordance with the rules adopted by the office, except as provided in 227-C:8-a through 8-g. Authorizes the commissioner to conduct hearings upon receiving written complaint from any person, including a member of the State Historical Resources Council, concerning the issuance, denial, revocation, suspension, extension or refusal of extension of a permit issued under this chapter.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority
    • Underwater Archeological Activity

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 1-a
Section Title: Historic preservation: purposes

Summary:

(II) Declares some purposes of this chapter to be to provide: (a) adequate protection from vandalism for unmarked human burials and human remains; (b) adequate protection for unmarked human burials and human remains not within the jurisdiction of the county medical examiner that are encountered during archeological excavation, construction or other ground disturbing activities, found anywhere within the state except on federal land; and (c) adequate skeletal analysis of remains removed or excavated from unmarked human burials if the analysis would result in valuable scientific information.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8-b through 227-C: 8-c
Section Title: Discovery of human remains: jurisdiction over remains; archeological investigation of human remains

Summary:

Directs the county medical examiner, upon notification of the discovery of an unmarked human burial or human remains pursuant to 227-C:8-a, to determine as soon as possible whether the remains are subject to the provisions of this chapter and, if so, to notify the state archeologist immediately, who shall take charge of the remains and associated grave items. Allows the state archeologist forty-eight hours prior to taking charge of the human remains to make arrangements with the land owner for the protection or removal of the unmarked human burial or human remains, unless a longer period is arranged with the landowner due to prolonged bad weather or the discovery of multiple interments. Directs that the state archeologist shall have no authority over the remains at the end of the forty-eight hour period and may not prohibit the resumption of the construction or agricultural activities without the permission of the land owner, unless other arrangements have been made. Directs the state archeologist, if an agreement is made with the land owner for the excavation of the human remains, to designate a member of his or her staff or authorize another professional archeologist to excavate or supervise the excavation. Requires the professional archeologist excavating human skeletal remains, when in situ preservation is not feasible, to report to the state archeologist, by telephone and by certified letter, his or her opinion on the cultural and biological characteristics of the remains, no later than two full business days after the removal of a burial. Directs the state archeologist, in consultation with the professional archeologist excavating the remains, to determine where the remains shall be held subsequent to excavation, pending other arrangements made according to consultations pursuant to 227-C:8-d or 8-e.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8-d through 227-C: 8-e
Section Title: Discovery of human remains: consultation with Native American community and other individuals

Summary:

Requires the state archeologist, if the professional archeologist excavating human remains determines that the remains are Native American and are known to have affinity to federally recognized Indian tribes or specific living ethnic groups or other nonfederally recognized Indian groups, to notify immediately the leaders, officials or spokespersons for these tribes or groups wherever the appropriate tribes or groups are located, whether in or outside the state. Requires the appropriate Indian tribe or group, within four weeks of notification, to communicate in writing to the state archeologist its concerns regarding the treatment and disposition of the Native American remains. Directs the state archeologist, within ninety days of receipt of such concerns, to prepare a written agreement, with the approval of the principal officials of the Indian group or tribe, concerning the treatment and ultimate disposition of the Native American remains, to include: designation of a qualified skeletal analyst to work on the skeletal remains; the type of analysis and the specific period of time to be provided for analysis of the remains; the timetable for written progress reports to be provided to the state archeologist by the skeletal analyst and the professional archeologist; and a plan for ultimate disposition of the remains subsequent to completion of the skeletal analysis. Authorizes the state historic preservation officer and the commissioner of the Department of Cultural Resources to determine the terms of the agreement if no agreement is reached within ninety days. Requires the state archeologist, if the professional archeologist excavating human remains determines that the remains are other than Native American, to publish notification that excavation of the remains has occurred in an effort to determine the identity or next of kin of the deceased. Directs the state archeologist, if the next of kin are located, to prepare, within ninety days, a written agreement in consultation with the next of kin concerning the treatment and ultimate disposition of the skeletal remains, to include the same terms as for an agreement concerning Native American human remains. Authorizes the state historic preservation officer and the commissioner to determine the terms of the agreement if no agreement is reached within ninety days.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8-f through 227-C: 8-g
Section Title: Discovery of human remains: analysis and disposition of human remains

Summary:

Directs the professional archeologist excavating the human remains and the designated skeletal analyst to submit to the state archeologist a proposal for the analysis of the human remains within the ninety-day period set forth in 8-d and 8-e, with such proposal to include: methodology and techniques to be used; research objectives; schedule for completion of the analysis; and intervals for submittal of written progress reports and the final report. Allows the state archeologist or the next of kin to take possession of the remains if the terms of the written agreement are not substantially met. Allows the state archeologist to ensure that appropriate analysis is conducted by another qualified skeletal analyst or professional archeologist prior to ultimate disposition of the remains. Authorizes the director of the State Historic Preservation Office to determine the ultimate disposition of the remains after the analysis, after consultation with an appropriate federally recognized Indian tribe or other Indian group. Allows the next of kin for remains that are of other than Native American origin, to have authority concerning the ultimate disposition of the remains after the analysis. Directs the state archeologist, if no information or communication has been received concerning the identity of the next of kin, to arrange for either permanent curation of the remains according to standard museum procedures of for reburial in a public cemetery. Authorizes the director, in the case of remains encountered during the course of long-term research of a professional archeologist, on recommendation of the state archeologist, to grant permission to a sponsoring institution, including accredited colleges, universities, museums or professional archeological organizations, to curate the remains permanently according to standard museum procedures after appropriate analysis is completed. Allows the appropriate Indian tribe or group to provide a suitable reburial location and ceremony, if determination is made by the director and the commissioner of the Department of Cultural Resources that Native American remains are to be reinterred following analysis. Requires the department to provide for a suitable burial location if the appropriate tribe or group elects not to do so. Requires the party conducting the excavation and removal of the remains to bear the expense of transportation of Native American remains to the reburial location.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8-h
Section Title: Discovery of human remains: financial responsibility for human remains

Summary:

Exempts the owner or lessee of the land on which unmarked human burials or human remains are found from bearing the cost of the excavation, removal, analysis or disposition if the discovery is the result of vandalism, erosion or noncommercial land-altering activity. Requires the following individuals or entities to bear the cost of the excavation, removal, analysis or disposition of unmarked human burials or human remains in the following situations: the owner or lessee of the land on which the burials or remains are found if the discovery is the result of a privately-financed commercial land-altering activity, including the construction of speculative housing; the department providing state funding for a land-altering activity, which department shall be authorized to use project funds for the purpose of the excavation, removal, analysis or disposition; the institution sponsoring a professional archeologist who discovers such burials or remains as the result of a survey or long-term systematic research; or the Division of Historical Resources if such burial or remains are discovered as a result of vandalism, erosion or noncommercial land-altering activity, or as a result of survey or long-term systematic research funded by the division.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 8-i through 227-C: 8-j
Section Title: Discovery of human remains: prohibited acts

Summary:

Declares that no person shall knowingly: (I) acquire any human remains removed from unmarked burials in the state after January 1, 1987, except in accordance with the provisions of this chapter; (II) exhibit or sell any human remains acquired from unmarked burials in the state; or (III) retain human remains acquired from unmarked burials in the state after January 1, 1987, for scientific analysis beyond a period of time provided for such analysis pursuant to the provisions of 8-d through 8-f, with the exception of those remains curated under the provisions of 8-g. Exempts human skeletal remains acquired from commercial biology supply houses or through medical means from the provisions of 8-i (I).

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: New Hampshire Revised Statutes
Citation: 227-C: 6
Section Title: Historic preservation: state title to historic resources on state lands and under state waters

Summary:

Reserves for the state, acting through the commissioner of cultural resources, title of ownership of all historic resources on or from lands owned or controlled by the state, its agencies, departments, commissions, institutions or political subdivisions, or bottoms of navigable waters in the state, great ponds and three miles seaward from the New Hampshire shore in the territorial tidal waters of the state. Exempts human remains as provided in 227-C:8-a and 8-g from state ownership.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Underwater Archeological Activity

Code Book: New Hampshire Revised Statutes
Citation: 227-C:10
Section Title: Historic preservation: avocational archeological training and certification

Summary:

Directs the Division of Historical Resources to provide a means for training nonprofessional persons in technical archeological skills and to acknowledge the achievement of those who have reached prescribed levels of proficiency in various aspects of archeology. Directs that such individuals shall be encouraged to participate in field investigations authorized by the commissioner of cultural affairs and supervised by the division. Declares that certification is not to be misconstrued as an authorization to collect or excavate without a permit.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: New Hampshire Revised Statutes
Citation: 227-C:12
Section Title: Historic preservation: exemptions and limitations

Summary:

(I) Allows a person who, prior to the effective date of this chapter, has acquired historic resources from state lands or waters, including items commonly known as antiques, to continue to possess or market such items as antiques. (II) Exempts treasure hunting with metal detectors and dowsing rods from the restrictions of this chapter on the following lands owned or controlled by the state, its agencies, departments, commissions and institutions, unless a historic resource on such land has been recorded and restrictions are posted: beaches; athletic fields; school grounds; perimeters of cemeteries; unpaved roads; within 25 feet of picnic tables and park pavilions; and currently used dumps. (III) Declares that no power is conferred by this chapter upon any official, commission or other agency of state or local government to close any body of water or portion thereof, or access thereto, on a temporary or permanent basis, to recreational diving, recreational or commercial fishing, scallop dragging, recreational or commercial boating or lobstering. (IV) Exempts from the provisions of this chapter: paper documents; photographic positives and negatives; microforms, including microfilms, microfiche, microcard and microprint; and reel to reel, cassette or cartridge tape recordings and magnetic tapes of information storage that qualify as historic resources under 227-C:1(VII), other than documentation of a field investigation. Declares that the responsibility to preserve, arrange, index and allow access to these historic resources shall remain with the Department of State, Division of Records Management and Archives.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: New Hampshire Revised Statutes
Citation: 227-C:17
Section Title: Historic preservation: penalties

Summary:

(I) Declares that a person is guilty of a misdemeanor who, with the purpose of defrauding anyone or with the knowledge that he is facilitating a fraud to be perpetrated by anyone, makes or alters any object so that it appears to have value because of antiquity, rarity, source or authorship that it does not possess. Requires such person to forfeit to the state the equivalent in dollars of profits made by the sale of the fraudulent objects. (II) Declares that a person is guilty of a misdemeanor who knowingly appropriates, excavates, sells, purchases, exchanges, offers for sale, transports, receives, destroys or in any manner alters a historic resource located on state land, under state waters or removed from same, except in the course of activities pursued under the authority of a permit or preservation agreement, or as exempted in 227-C:12. Directs that a person convicted of such a violation shall be punished by a fine not to exceed $1,000, or by imprisonment for a period not to exceed six months, or both; forfeiture to the state of all materials appropriated; and reimbursement to the state for restoration of a defaced or destroyed property.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: New Hampshire Revised Statutes
Citation: 227-C:18 through 227-C:23
Section Title: State Heritage Collections Committee; New Hampshire Heritage Trust Fund

Summary:

Establishes the State Heritage Collections Committee to consist of eleven members, including the governor or the governor's designee; a representative appointed by the speaker of the House; a senator appointed by the president of the Senate; the commissioner of the Department of Cultural Affairs or designee; the commissioner of Administrative Services or designee; the chairman of the joint legislative historical committee; the director of the Division of Arts, Department of Cultural Affairs; the director of the Division of Parks and Recreation, Department of Resources and Economic Development; the state archeologist; the state archivist, Division of Records Management and Archives; and the state curator. Directs the committee to: administer and enforce the state collections policy for objects of historical, cultural or artistic value, and recommend legislation as needed to implement this policy; provide guidelines to all branches of state government relative to the acquisition, disposal, care and interpretation of historical, cultural and artistic objects; cooperate with other state institutions and collecting agencies relative to the acquisition, disposal, care and interpretation of historical, cultural and artistic objects; approve or disapprove plans to dispose of any state-owned object of historical, cultural or artistic value; administer the New Hampshire Heritage Trust Fund; and accept and expend funds from the trust fund. Establishes the New Hampshire Heritage Trust Fund in the office of the state treasurer for the purpose of acquiring, maintaining, exhibiting and conserving state-owned objects of historic, cultural or artistic significance.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts



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