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The Law and American Indian Grave Protection

New Mexico Laws

When contacted on Indian burial law April 2001, the State Archaeologist, Glenna Dean, referred us to Article 18, Section 6, Subsection 11.2 (18-6-11.2)--the Unmarked Burial Statute. (Follow link to full text.)

Regulations implementing that Section can be found on the Historic Preservation Division web site. Go to museums.state.nm.us/hpd/about/contents/forms.html, and select "Issuance of Permits to Excavate Unmarked Human Burials in the State of New Mexico (4 NMAC 10.11). The item is in PDF format.

Summaries follow of the 18-6-11.2 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.

To see full text go to LEXIS, select "New Mexico" and put in a search for the article name.


Code Book: New Mexico Statutes 1978
Citation: 18- 3-3
Section Title: Museum of New Mexico: board of regents--powers and duties

Summary:

(H) Authorizes the board of regents of the Museum of New Mexico to enter into contracts with public or private agencies or organizations for the performance of services related to the location, preservation, restoration, salvage or development of historic, archeological or other culturally related sites, structures or objects in the state.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: New Mexico Statutes 1978
Citation: 18- 6- 4 through 18- 6- 5
Section Title: Cultural Properties Act: Cultural Properties Review Committee

Summary:

Creates the seven-member Cultural Properties Review Committee, to consist of the state historian and six members appointed by the governor, one to be professionally recognized in each of the disciplines of architectural history, history, architecture, prehistoric archeology and historic archeology and one other in history, architectural history or archeology. Authorizes the committee to: determine criteria of significance for identifying cultural properties; prepare and maintain the New Mexico Register of Cultural Properties, composed of properties identified by the committee as having historical or cultural significance and integrity, being suitable for preservation; prepare and maintain proper documentation of the historic or other significance of cultural properties; inspect all registered properties periodically, with the written consent of the owner, and recommend repairs and maintenance necessary to maintain registered status; issue regulations regarding identification, preservation and maintenance of cultural properties; delete from the register any property whose owner does not comply with the committee's regulations or follow its recommendations for repair and maintenance, or that does not merit continued registry; recommend to the Museum Division of the Office of Cultural Affairs and other public agencies measures for the investigation, restoration and protection of registered properties; provide technical advice to private owners of registered properties and to counties and municipalities; and cooperate with federal, state, local and private agencies and persons that administer or develop cultural properties within the state. Authorizes the committee to issue permits, with the concurrence of the state archeologist and the state historic preservation officer, for the examination or excavation of sites and the collection or removal of objects of antiquity on state lands, to reputable museums, universities or other historical, scientific or educational institutions or societies approved by the committee. Requires all specimens collected under such permits to be the property of the state, with prior arrangements made for their disposition in an appropriate state institution or for loan to qualified institutions in or out of the state. Directs the committee to provide advice on cultural properties to the state historic preservation officer in the Historic Preservation Division and to the director of the Museum Division and to make an annual report to the governor and the Legislature, in conjunction with the Historic Preservation Division, with recommendations for the more effective preservation of the state's historic and cultural heritage.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: New Mexico Statutes 1978
Citation: 18- 6- 6
Section Title: Cultural Properties Act: Museum Division: powers and duties relating to the Cultural Properties Act; director

Summary:

Directs that the Museum Division of the Office of Cultural Affairs is responsible for administering, developing and maintaining all registered cultural properties in its ownership or custody. Establishes the Museum of New Mexico as the depository for all collections made under the provisions of the Cultural Properties Act and directs the museum to make such collections available to museums in and out of the state on the request of the governing bodies of those museums when, in the opinion of the director of the Museum Division, such use is appropriate and arrangements are made for the safe custodianship and public exhibition of the material in accordance with division regulations.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts

Code Book: New Mexico Statutes 1978
Citation: 18- 6- 9
Section Title: Cultural Properties Act: unauthorized excavation, injury or destruction of cultural property--criminal damage to property

Summary:

Declares that a person who knowingly excavates, injures or destroys cultural property located on state land without a permit, or who solicits, employs or counsels another person to do so, is guilty of criminal damage to property and is subject to the following penalties: if the value of the property is less than $1,000, the violator is guilty of a petty misdemeanor and shall be sentenced to not more than six months in prison or not more than $500 fine or both; and if the value of the property is $1,000 or more, the violator is guilty of a fourth degree felony and shall be sentenced to eighteen months in prison or $5,000 fine or both.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: New Mexico Statutes 1978
Citation: 18- 6-9.1
Section Title: Cultural Properties Act: unauthorized appropriation of cultural property--larceny

Summary:

Declares that a person is guilty of larceny who undertakes without a permit the following actions: (A) knowingly appropriates cultural property located on state land; (B) solicits, employs or counsels another person to appropriate cultural property located on state land; or (C) receives, traffics in or sells cultural property appropriated from state land without a valid permit is guilty of larceny. (D) Declares that whoever commits larceny pursuant to the provisions of this section and the value of the property appropriated is: (1) less than $100 is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of 31-19-1; (2) over $100 but less than $250 is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of 31-19-1; $200 or more but less than $2,500 is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of 31-18-15; (4) $2,500 or more but less than $20,000 is guilty of a third degree felony and shall be sentenced pursuant to the provisions of 31-18-15; or (5) more than $20,000 is guilty of a second degree felony and shall be sentenced pursuant to the provisions of 31-18-15.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: New Mexico Statutes 1978
Citation: 18- 6-9.2
Section Title: Cultural Properties Act: unauthorized damage or appropriation of cultural property--civil penalties

Summary:

Declares that any person violating the provisions of the Cultural Properties Act [18-6-1 to 18-6-17] shall be liable for civil damages to the state agency, department, institution or political subdivision having jurisdiction over the cultural property in an amount equal to the cost or, in the discretion of the court, in an amount equal to twice the cost of restoration, stabilization and interpretation of the cultural property.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: New Mexico Statutes 1978
Citation: 18- 6-9.3
Section Title: Cultural Properties Act: violation of act--forfeiture of instruments

Summary:

(A) Declares that any instrument, vehicle, tool or equipment used or intended to be used to violate the provisions of the Cultural Properties Act [18-6-1 to 18-6-17] is subject to forfeiture; except that no instrument, vehicle, tool or equipment shall be subject to forfeiture if the violation was without the knowledge or consent of the owner of the property subject to forfeiture. (B) Property subject to forfeiture pursuant to the provisions of this section may be seized by a conservation officer, sheriff, state police officer or law enforcement officer upon an order of the district court in the county having jurisdiction over the offense. (C) Seizure without a court order may occur if: (1) the seizure is incident to an arrest or a search pursuant to a search warrant; or (2) the enforcement officer has probable cause to believe that the property was used or intended for use to violate the Cultural Properties Act. (D) In the event of seizure pursuant to this section, proceedings shall be instituted within thirty days from the date of seizure. A proceeding brought pursuant to this section shall be in rem. The claim shall not be filed against the owner or any other person and shall be filed only as a civil case. (E) Property taken or detained pursuant to the provisions of this section shall not be subject to replevin, but is deemed to be in the custody of the state agency employing the enforcing officer, subject only to the orders and decrees of the district court. When property is seized pursuant to the Cultural Properties Act, the state agency seizing it shall remove the property to a place designated by the state agency for disposition in accordance with law. (F) Except as otherwise specifically provided by law, property forfeited due to a violation of the Cultural Properties Act shall be sold at public auction pursuant to a court order. The proceeds of the court-ordered sale of forfeited property are subject first to the claims, verified by the court, of innocent persons and the legitimate rights to restitution of actual victims of the criminal acts. Where proceeds are derived from violations: (1) on lands controlled by the commissioner of public lands, one-half of the proceeds from the sale shall accrue to the state agency of which the law enforcement officer seizing that property is a member, and one-half shall be deposited in the cultural properties restoration fund; and (2) on any other state lands, one-half of the proceeds from the sale shall accrue to the state agency of which the law enforcement officer seizing that property is a member, and one-half of the proceeds shall be deposited in the cultural properties restoration fund.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: New Mexico Statutes 1978
Citation: 18- 6-10
Section Title: Cultural Properties Act: cultural properties on private land

Summary:

Discourages field archeology on privately owned lands except in accordance with he provisions and spirit of the Cultural Properties Act, and encourages persons having knowledge of the location of archeological sites to inform the Cultural Properties Review Committee. Declares it to be an act of trespass for a person to remove, injure or destroy registered cultural properties situated on private lands or controlled by a private owner without the owner's prior permission. Directs that the state shall have exclusive right and privilege of field archeology on private land that is listed in the State Register of Cultural Properties, upon written acceptance of such registration by the owner. Authorizes the committee to recommend procedures to ensure the preservation of cultural properties on private lands, including: providing technical assistance to an owner who is willing to restore, preserve and maintain the cultural property; acquiring the property or an easement or other rights therein by gift or purchase; advising the county or municipality within which the cultural property is located on zoning the property as a historic area or district or on the use of agreements, purchases or the right of eminent domain to obtain control of the cultural property; or acquiring the property for the state by use of the right of eminent domain.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: New Mexico Statutes 1978
Citation: 18- 6-11
Section Title: Cultural Properties Act: permit required for excavation of archeological sites; penalty

Summary:

Prohibits a person from excavating with the use of mechanical earth moving equipment an archeological site for the purpose of collecting or removing objects of antiquity when the archeological site is located on private land, unless the person has obtained a permit from the Cultural Properties Review Committee, upon approval of the state archeologist and the state historic preservation officer. Defines an archeological site as a location where there exists material evidence of past human life and culture, excluding human burial sites. Requires a person applying for a permit to submit to the committee: written authorization for the excavation from the owner of the land; evidence of being qualified to perform the archeological excavation; a satisfactory plan for the excavation; and an agreement to submit a summary report to the committee upon completion of the excavation. Directs that all archeological specimens collected or removed from an archeological site as a result of excavation pursuant to this section shall be the property of the land owner. Declares that nothing in this section shall limit or prohibit the use of the land on which the archeological site is located by the owner of the land or to require the owner to obtain a permit for personal excavation on his own land, provided that no transfer of ownership is made with the intent of excavating archeological sites as prohibited in this section, and provided that this exemption does not apply to marked or unmarked burial grounds. Declares a person convicted of violating the provisions of this section to be guilty of a misdemeanor and shall be punished by a fine not to exceed $1,000, and in addition shall forfeit to the state all equipment used in committing the violation.

Primary Topic: Archeological Activities

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

Code Book: New Mexico Statutes 1978
Citation: 18- 6-11.2
Section Title: Cultural Properties Act: permit required for excavation of unmarked burials; penalty

Summary:

Declares a person to be guilty of a fourth degree felony who knowingly, willfully and intentionally excavates, removes, disturbs or destroys a human burial in any unmarked burial ground, or who procures or employs another person to do so, except by authority of a permit issued by the state medical examiner or by the Cultural Properties Review Committee with the concurrence of the state archeologist and the state historic preservation officer. Directs that a person committing such a violation shall be fined not more than $5,000 or imprisoned for eighteen months or both, and shall forfeit to the state upon conviction all objects, artifacts and human burials excavated or removed from an unmarked burial in violation of this section, and any proceeds from the sale of such items. Requires a person who discovers an unmarked burial to cease any activity that may disturb the burial or any object associated with that burial and to notify the local law enforcement agency, which shall notify the state medical investigator and the state historic preservation officer. Directs that if the medical investigator does not take possession of the human burial, then the committee may issue a permit for its excavation within sixty days of receipt of an application when the applicant: submits written authorization for the excavation from the owner of the land on which the unmarked human burial is located; demonstrates appropriate efforts to identify the age of the burial and to identify and consult with any living person who may be related to the human burial; and provides for the lawful disposition or reinterment of the human burial either in the original or another appropriate location and of any objects associated with that burial. Prohibits the committee from requiring, as a condition of the permit, reinterment or disposition if such action limits the owner's use of the land. Authorizes the committee to issue permits annually to professional archeological consultants or organizations for the excavation of human burials discovered in the course of construction or other land modifications. Declares that any object or artifact associated with a human burial shall be the property of the owner of the land, unless the committee requires as a condition of the permit that such objects or artifacts be reinterred or disposed of with that burial. Declares that a human burial or associated objects excavated or removed in violation of this section shall be forfeited to the state. Directs the state historic preservation officer to issue regulations with the concurrence of the state medical investigator for the implementation of this section.

Primary Topic: Archeological Activities

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

Code Book: New Mexico Statutes 1978
Citation: 30-15-5 through 30-15-6
Section Title: Property damage: damaging caves or caverns unlawful; penalty

Summary:

Declares a person to be guilty of a misdemeanor who, willfully or knowingly and without prior permission of the federal, state or private land owner, disturbs, excavates, removes, displaces, mars or harms any archeological artifacts found within a cave or cavern, including petroglyphs, projectile points, human remains, rock or wood carvings, pottery, basketry or any handwoven articles of any nature, or any pieces, fragments of parts of such articles.

Primary Topic: Archeological Activities

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



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