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The Law and American Indian Grave Protection

North Carolina Laws

Unmarked Human Burial and Human Skeletal Remains Protection Act, North Carolina, General Statutes Chapter 70, Article 3.
Go to Summary of Federal and State Statutes Affecting Archaeological Resources in North Carolina for the full text of other relevant laws.

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: General Statutes of North Carolina
Citation: 70- 1 through 70- 2
Section Title: Indian antiquities: private landowners; possessors of relics

Summary:

Encourages private owners of lands containing Indian relics, artifacts, mounds or burial grounds to refrain from the excavation or destruction thereof and to forbid such conduct by others, without the cooperation of the director of the North Carolina State Museum and the secretary of the Department of Cultural Resources or without the assistance or supervision of a person designated by either as qualified to make scientific archeological explorations. Encourages persons having in their possession collections of Indian relics, artifacts and antiquities that are in danger of being lost, destroyed or scattered to commit them to the custody of the state museum, the department or another public agency or institution within the state that is qualified to preserve and exhibit them for their historic, scientific and educational value.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Permit / Site Investigation Authority
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native American Burial and Other Preservation Issues
Primary Topic: Private Property Issues
    Secondary Topic:
    • [No secondary topics.]

Code Book: General Statutes of North Carolina
Citation: 70- 3 through 70- 4
Section Title: Indian antiquities: public lands; penalties

Summary:

Directs a person in charge of a construction or excavation project on any lands owned by the state, a public agency or institution, a county or a municipal corporation to report promptly to and preserve for the director of the North Carolina State Museum or the secretary of the Department of Cultural Resources any Indian relic, artifact, mound or burial ground discovered in the course of the construction or excavation. Declares that a person is guilty of a Class 1 misdemeanor who excavates, disturbs, removes, destroys or sells an Indian relic or artifact or the contents of a mound or burial ground from any public lands, except with the written approval of the director of the North Carolina State Museum or the secretary of the Department of Cultural Resources.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority
    • Violation / Penalty / Enforcement
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native American Burial and Other Preservation Issues

Code Book: General Statutes of North Carolina
Citation: 70-10 through 70-12
Section Title: Archeological Resources Protection Act: purpose; definitions

Summary:

Declares the purpose of this article to be to secure, for the present and future benefit of the people of the state, the protection of archeological resources and sites that are on state lands, excluding highway rights-of-way, and to foster increased cooperation and exchange of information among governmental authorities, the professional archeological community, Indian tribal governmental authorities and private individuals having collections of archeological resources and data. Defines an archeological resource as any material remains of past human life or activities that are at least fifty years old and are of archeological interest, including pieces of pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, rock paintings, rock carvings, intaglios, graves or human skeletal material. Excludes paleontological resources from the definition unless found in an archeological context.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: General Statutes of North Carolina
Citation: 70-13
Section Title: Archeological Resources Protection Act: archeological investigations

Summary:

Requires a person to apply to the Department of Cultural Resources for a permit to conduct archeological investigations on state lands. Authorizes the department to issue such permits if it finds that: the applicant is qualified to carry out the permitted activity; the activity is undertaken to further archeological knowledge in the public interest; the technology the applicant proposes to use, the available funds and the time allotted are such that the significant information contained in the archeological resources can be retrieved; the archeological resources which are collected, excavated or removed from state lands and associated records and data will remain the property of the state and the resources and copies of the records and data will be preserved by a suitable university, museum or other scientific or educational institution; the activity pursuant to the permit is not inconsistent with any management plan applicable to the state lands concerned; and the applicant shall bear the financial responsibility for the reinterment of any human burials or human skeletal remains excavated or removed as a result of the permitted activities. Authorizes the department to include in a permit any terms, conditions or limitations it deems necessary. Directs the department, if it determines that an investigation carried out under such a permit may result in harm to or destruction of a religious or cultural site, to notify and consult with, insofar as possible and before issuing the permit, a local representative of an appropriate religious or cultural group. Directs the department, if the site pertains to Native Americans, to notify the executive director of the North Carolina Commission of Indian Affairs, who shall notify and consult with the Eastern Band of Cherokee or other appropriate tribal group or community. Authorizes the department to suspend a permit upon determination that the permit holder has violated any provision of this section. Authorizes the department to revoke a permit upon assessment of a civil penalty against the permit holder under 70-16 or upon the permit holder's conviction under 70-15. Requires the department to consult with the Department of Administration on all matters relating to permits for archeological investigations.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Permit / Site Investigation Authority
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: General Statutes of North Carolina
Citation: 70-14
Section Title: Archeological Resources Protection Act: rule-making authority; custody of resources

Summary:

Directs the North Carolina Historical Commission, in consultation with the Department of Administration, to promulgate regulations to implement the provisions of this article and to provide for the exchange, where appropriate, between suitable universities, museums or other scientific or educational institutions, of archeological resources removed from state lands, and the ultimate disposition of those resources.

Primary Topic: Archeological Activities

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

Code Book: General Statutes of North Carolina
Citation: 70-15 through 70-17
Section Title: Archeological Resources Protection Act: prohibited acts and criminal penalties; civil penalties; forfeiture

Summary:

Prohibits a person from excavating, removing, damaging or otherwise altering or defacing an archeological resource located on state lands, unless acting pursuant to a permit issued under 70-13. Prohibits a person from selling, purchasing, exchanging, transporting or receiving such archeological resources, or from offering to do so. Declares that a person who violates the above provisions, or employs another person to do so, shall be fined, upon conviction, not more than $2,000 or imprisoned not more than six months, or both, for each day of continued violation. Authorizes the Department of Administration, in consultation with the Department of Cultural Resources, to assess a civil penalty of not more than $5,000 against any person who violates such provisions. Directs the Department of Administration, in determining the amount of the penalty, to consider the extent of the harm caused by the violation and the cost of rectifying the damage. Directs the department to send notice by registered or certified mail of such an assessment to the person being assessed and authorizes the department to institute a civil action in the Superior Court of Wake County if the person being assessed fails to pay the assessment. Authorizes the department to use the assessed funds to rectify the damage to archeological resources or to otherwise effectuate the purposes of this article. Declares that all archeological resources with respect to which a criminal violation has occurred, and all vehicles and equipment used in connection with such violation, shall be subject to forfeiture to the state.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: General Statutes of North Carolina
Citation: 70-19
Section Title: Archeological Resources Protection Act: cooperation with private individuals

Summary:

Directs the Department of Cultural Resources to take any action necessary, consistent with the purposes of this article, to foster and improve the communication, cooperation and exchange of information between private individuals having collections of archeological resources and data that were collected through legal means and professional archeologists and associations of professional archeologists concerned with the archeological resources of North Carolina and the United States.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts

Code Book: General Statutes of North Carolina
Citation: 70-20
Section Title: Archeological Resources Protection Act: delegation of responsibilities

Summary:

Authorizes the Department of Cultural Resources to delegate its responsibilities under the Archeological Resources Protection Act, in whole or in part, to the Department of Administration through a memorandum of understanding, upon agreement of both parties. Directs that such a memorandum of understanding shall be subject to periodic review at the initiation of either party.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: General Statutes of North Carolina
Citation: 70-26 through 70-29
Section Title: Unmarked Human Burial and Human Skeletal Remains Protection Act: purpose; discovery of remains and notification of authorities

Summary:

Declares the purpose of this article to be: to provide adequate protection for unmarked human burials and human skeletal remains from vandalism; to provide adequate protection for unmarked human burials and human skeletal remains not within the jurisdiction of the medical examiner that are encountered during archeological excavation, construction or other ground disturbing activities anywhere in the state except on federal land, and to provide for adequate skeletal analysis of remains removed or excavated from unmarked human burials if the analysis would result in valuable scientific information. Requires a person knowing that unmarked human burials or human skeletal remains are being disturbed, destroyed, mutilated, removed or exposed to notify immediately the medical examiner of the county in which the remains are located. Directs that, if such burials or remains are encountered as a result of construction or agricultural activities, disturbance of the remains shall cease immediately and shall not resume without authorization from either the county medical examiner or the chief archeologist of the Division of Archives and History, Department of Cultural Resources. Allows a professional archeologist who encounters unmarked burials or skeletal remains as a result of survey or test excavations to resume excavation or other activities after notification of the chief archeologist. Exempts from the requirements of 70-30 through 70-34 and 70-35(c) a professional archeologist directing long-term systematic archeological research sponsored by any accredited college or university in the state who recovers Native American skeletal remains provided that the archeologist notifies the executive director of the North Carolina Commission of Native Americans within five working days of the initial discovery, reports to the executive director on the status of the project, curates the skeletal remains prior to ultimate disposition and conducts no destructive skeletal analysis without the express permission of the executive director. Directs that upon completion of field work, the professional archeologist, in consultation with the skeletal analyst and the executive director, shall determine the schedule for completion of the skeletal analysis, which in the event of a disagreement, shall not exceed four years. Grants the executive director authority concerning ultimate disposition of the remains after analysis is complete. Requires the chief archeologist to notify the chief medical examiner in the Division of Health Services, Department of Human Resources, of any reported human skeletal remains discovered by a professional archeologist.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: General Statutes of North Carolina
Citation: 70-30 through 70-31
Section Title: Unmarked Human Burial and Human Skeletal Remains Protection Act: jurisdiction; archeological investigation

Summary:

Directs the chief archeologist of the Division of Archives and History, Department of Cultural Resources, subsequent to the discovery of an unmarked human burial, to take immediate charge of any human skeletal remains determined not to be in the jurisdiction of the county medical examiner. Directs the chief archeologist to make arrangements with the land owner for the protection or removal of the unmarked burial or skeletal remains within forty-eight hours and not to prohibit resumption of the construction or agricultural activities at the end of that period without permission of the land owner. Directs the chief archeologist, if an agreement has been reached with the land owner, to designate a member of his staff or another professional archeologist to excavate or supervise the excavation. Requires that archeologist to report to the chief archeologist within two days regarding the cultural and biological characteristics of the remains. Authorizes the Department of Cultural Resources to obtain administrative warrants for access to the site of an unmarked burial or skeletal remains if an agreement cannot be reached with the land owner.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: General Statutes of North Carolina
Citation: 70-32 through 70-33
Section Title: Unmarked Human Burial and Human Skeletal Remains Protection Act: consultation

Summary:

Directs the chief archeologist of the Division of Archives and History, Department of Cultural Resources, if an unmarked human burial or human skeletal remains are determined to be Native American, to notify immediately the executive director of the North Carolina Commission of Indian Affairs, who shall consult with the Eastern Band of Cherokee or other appropriate tribal group or community. Directs the executive director, within four weeks of such notification, to communicate in writing to the chief archeologist the concerns of the commission and the appropriate tribal group. Directs the chief archeologist and the executive director, with the approval of the principal tribal official of the appropriate tribal group, to prepare, within ninety days of the communication from the executive director to the chief archeologist, a written agreement concerning the treatment, skeletal analysis and ultimate disposition of the Native American skeletal remains. Directs the chief archeologist, if the skeletal remains are determined to be other than Native American, to publish notice that the excavation has occurred in an effort to locate the identity or next of kin of the deceased. Directs the chief archeologist, upon location of and in consultation with the next of kin, to prepare a written agreement concerning the treatment, skeletal analysis and ultimate disposition of the skeletal remains. Directs that the remains shall be handled according to the wishes of the next of kin if no agreement is reached.

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: General Statutes of North Carolina
Citation: 70-34 through 70-36
Section Title: Unmarked Human Burial and Human Skeletal Remains Protection Act: skeletal analysis; disposition; financial responsibility

Summary:

Directs the chief archeologist of the Division of Archives and History, Department of Cultural Resources, before executing any agreements with the executive director of the North Carolina Commission of Indian Affairs or the next of kin regarding the disposition of human skeletal remains discovered in an unmarked burial, to consult with the professional archeologist and skeletal analyst investigating the remains. Requires the archeologist and the skeletal analyst to shall submit a proposal to the chief archeologist for the skeletal analysis, to include methodology, techniques, objectives, time schedule and reporting responsibilities. Authorizes the executive director or the next of kin to take possession of the skeletal remains if the terms of the written agreement are not substantially met. Authorizes the chief archeologist to ensure, in such cases, that the analysis is conducted by another qualified skeletal analyst prior to ultimate disposition. Directs the executive director, after consultation with the appropriate tribal group or community, to determine the ultimate disposition of Native American remains following skeletal analysis. Authorizes the next of kin, in other cases, to have authority concerning the ultimate disposition of remains. Directs that the remains shall be transferred to the chief archeologist, if no next of kin have been identified, for permanent curation according to standard museum procedures following skeletal analysis. Exempts the owner of the land on which the unmarked human burial or human skeletal remains are found from any financial responsibility regarding excavation, analysis or disposition. Authorizes an appropriate tribal group, if a determination has been made by the executive director that Native American remains shall be reinterred following analysis, to provide a suitable burial location and ceremony for the remains. Directs the Commission of Indian Affairs to provide the burial location and ceremony if the tribal group elects not to do so. Requires the party conducting the excavation and removal of the skeletal remains to bear the cost of transportation of the Native American skeletal remains to the reburial location.

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: General Statutes of North Carolina
Citation: 70-37 through 70-40
Section Title: Unmarked Human Burial and Human Skeletal Remains Protection Act: prohibited acts; rule-making; penalties

Summary:

Declares that a person commits a Class H felony who shall: acquire knowingly any human skeletal remains removed from unmarked burials in the state after October 1, 1981, except in accordance with the Unmarked Human Burial and Human Skeletal Remains Protection Act; exhibit or sell human skeletal remains knowingly acquired from unmarked human burials in the state; or retain human skeletal remains knowingly acquired from unmarked burials in the state after October 1, 1981, for scientific analysis beyond a period of time provided for in any agreements reached under this article. Exempts from the provisions of this article human skeletal remains acquired from commercial biological supply houses or through medical means and those determined to be within the jurisdiction of the medical examiner according to the provisions of 130-198. Directs the North Carolina Historical Commission to promulgate rules and regulations to implement the provisions of this article. Declares that a person commits a Class 1 misdemeanor who fails to notify the medical examiner of the county or the chief archeologist of the Division of Archives and History, Department of Cultural Resources, regarding the discovery of an unmarked human burial or human skeletal remains pursuant to 70-29.

Primary Topic: Archeological Activities

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

Code Book: General Statutes of North Carolina
Citation: 70-46 through 70-52
Section Title: North Carolina Archeological Record Program

Summary:

Directs the Department of Cultural Resources, Division of Archives and History, to establish and maintain the North Carolina Archeological Record as a list of prehistoric and historic archeological resources located on private lands that have been voluntarily enrolled in the Record by the owner of the resource. Allows removal of a resource from the list upon written request of the owner or the state archeologist. Authorizes the department to create and maintain a volunteer Site Steward Program to monitor the condition of archeological resources listed in the Record, to be administered by the department in cooperation with local and statewide archeological societies and groups. Requires a person to apply for and obtain a permit from the department before conducting an archeological investigation on private land that is the site of an archeological resource enrolled in the Record. Authorizes the department to issue a permit if it finds that: the applicant is qualified to carry out the permitted activity; the activity will further archeological knowledge in the public interest; the technology proposed to be used by the applicant is such that the significant information in the archeological resource can be retrieved; the resources that are collected, excavated or removed from the privately owned site and the associated records and data will remain the property of the owner of the resource; copies of the records and data will be preserved by a suitable university, museum or other scientific or educational institution; the applicant will bear the financial responsibility for the reinterment of any human burials or human skeletal remains excavated or removed as a result of the permitted activity; and the applicant has obtained the permission of the land owner to conduct the archeological investigation. Allows a permit to contain any terms, conditions or limitations deemed necessary by the department. Directs the department, if it determines that a permit issued under this section may result in harm to or destruction of any religious or cultural site, to notify and consult with, if possible, a local representative of an appropriate religious or cultural group. Directs the department, if it determines that the religious or cultural site pertains to Native Americans, to notify the executive director of the North Carolina Commission of Indian Affairs, who shall notify and consult with the Eastern Band of Cherokee or other appropriate tribal group or community. Authorizes the department to suspend a permit issued under this section upon determination that the permit holder has violated any condition of the permit.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority
    • Survey / Inventory of Sites
Primary Topic: Private Property Issues
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: State Agencies / Institutions
    Secondary Topic:
    • Native American / Indian Affairs Commission / Office / Board

Code Book: General Statutes of North Carolina
Citation: 136- 42.1
Section Title: Archeological objects on highway right-of-way

Summary:

Authorizes the Department of Transportation to expend highway funds for reconnaissance surveys, preliminary site examinations and salvage work necessary to retrieve and record data and the preservation of archeological and paleontological objects of value that are located within the right-of-way acquired for highway construction. Directs that the Department of Cultural Resources shall be consulted when objects of scientific or historical significance might be anticipated or encountered in highway rights-of-way and that a determination shall be made by the department regarding the national, state or local importance of preserving any fossil relics, artifacts, monuments or buildings. Directs the Department of Cultural Resources to request advice from other agencies or institutions having special knowledge or skills that may not be available in the department for the determination of the presence of or for the evaluation and salvage of prehistoric archeological or paleontological remains within the highway right-of-way. Authorizes the Department of Transportation to contract with the Department of Cultural Resources and to provide funds necessary to perform reconnaissance surveys, preliminary site examinations and salvage operations at sites determined by the Department of Cultural Resources to be of sufficient importance to be preserved. Directs the Department of Cultural Resources to assume possession of and responsibility for any historical objects recovered and to enter into agreements with governmental units and agencies, institutions and charitable organizations for their preservation.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: General Statutes of North Carolina
Citation: 143B-404 through 143B-411
Section Title: North Carolina State Commission of Indian Affairs

Summary:

Creates the North Carolina State Commission of Indian Affairs in the Department of Administration. Directs the commission, among other duties, to promote recognition of and the right of Indians to pursue cultural and religious traditions considered by them to be sacred and meaningful to Native Americans. Directs that the commission shall consist of twenty-five members, to include: two members appointed by the General Assembly, the secretary of Human Resources, the Director of the State Employment Security Commission, the secretary of Administration, the secretary of Environment, Health and Natural Resources, the commissioner of Labor and eighteen representatives of the Indian community selected by tribal or community consent from Indian groups recognized by the state.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native American Burial and Other Preservation Issues

Code Book: General Statutes of North Carolina
Citation: 14-148
Section Title: Defacing or desecrating grave sites

Summary:

Declares it to be a Class 1 misdemeanor to take away, disturb, vandalize, destroy, tamper with or deface any stone, brick, iron or other material or fence enclosing a cemetery or any tombstone, headstone, monument, grave marker, grave ornamentation or grave artifact, without authorization of law or the consent of the surviving spouse or next of kin. Limits a Class 1 misdemeanor to damage of less than $1,000. Exempts a professional archeologist acting pursuant to the Unmarked Human Burial and Human Skeletal Remains Protection Act from the provisions of this section.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Violation / Penalty / Enforcement
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Cemetery / Gravestone

Code Book: General Statutes of North Carolina
Citation: 14-149
Section Title: Desecrating, plowing over or covering up graves

Summary:

Declares it to be a Class I felony to: willingly and knowingly open, disturb, destroy, remove, vandalize or desecrate any casket or human remains or the repository of such remains by any means, including plowing under, tearing up, covering over or otherwise obliterating or removing any grave; or take away, disturb, vandalize, destroy, tamper with or deface, without authorization of law or the consent of the surviving spouse or next of kin, any stone, brick, iron or other material or fence enclosing a cemetery or any tombstone, headstone, monument, grave marker, grave ornamentation or grave artifact, and causing damage of more than $1,000. Exempts a professional archeologist acting pursuant to the Unmarked Human Burial and Human Skeletal Remains Protection Act from the provisions of this section.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Cemetery / Gravestone



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