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The Law and American Indian Grave Protection

North Dakota Laws

The North Dakota state archaeologist, Fern Swenson, when contacted as to burial law, sent the text of Chapter 40-02-03, Protection of Prehistoric and Historic Human Brial Sites, Human Remains and Burial Goods, and Chapter 23-06-27, Protection of human burial sites, human remains and burial good. Full text of Chapter 40-02-03 may be found here. Full text of 23-06-27 may be found here.

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: North Dakota Century Code
Citation: 23-06-27
Section Title: Protection of human burial sites, human remains and burial goods

Summary:

(2) Declares that a person is guilty of a class C felony who, without authority of law, breaks open a building in which the body of a deceased human being is deposited while awaiting burial, with the intent of removing the human body or stealing the coffin, anything attached to or connected with the body, or the vestments or other articles intended to be buried with the body. (3) Declares that a person is guilty of a class B felony who, without authority of law, willfully and for monetary gain, disturbs a human burial site, human remains or burial goods found in or on any land, or attempts to do so, or incites or procures the same to be done, and is guilty of a class C felony if the same offense is not committed for monetary gain. (4) Requires a person who knows or has reasonable grounds to believe that a human burial site, human remains or burial goods, found in or on any land, are being disturbed or may be disturbed, by human activity without authority of law or by natural forces, to notify immediately the local law enforcement agency with jurisdiction in the area in which the burial, remains or goods are located. Declares that willful failure to report such information is a class B misdemeanor. (5) Requires a person who knows or has reasonable grounds to believe that he or she has encountered or discovered a human burial site, human remains or burial goods, in or on any land, without authority of law, to refrain from any activity that might cause further disturbance or immediately cease any continued activity that might cause further disturbance of such burial, remains or goods and shall, as soon as practicable, report the discovery to the local law enforcement agency. Declares that willful failure to report such discoveries is a class B misdemeanor. (6) Requires the state to order a person having been found guilty under subsection 2 or 3 to forfeit to the state any and all human remains and burial goods acquired in connection with the commission of the offense. Authorizes the state to order that person to forfeit any and all equipment used in connection with the offense. Requires the state to order, as well, a person found guilty under subsection 3 to pay all reasonable costs actually incurred in the reinterment of the remains and goods so forfeited. Allows such remains, as necessary, to be subjected to nonintrusive, nondestructive professional study for the exclusive purpose of determining whether the remains are human. (7) Exempts from the provisions of subsection 3: the inadvertent disturbance of a human burial site, human remains or burial goods when the Department of Health and the State Historical Board have been notified of such disturbance and such remains and goods shall be studied and reinterred pursuant to rules adopted by the department and the board; and situations in which the department and the board are notified of the need to disinter and move the contents of human burial sites recorded with the board to prevent the destruction of such sites by actions including the construction of highways, dams, reservoirs, coal mines, power generation and transmission facilities and pipelines, and farming practices. Suggests that, where feasible, such developments should avoid disturbance of the human burial sites. Requires human remains and burial goods disinterred under such situations to be studied and reinterred pursuant to rules adopted by the department and the board.

Primary Topic: Archeological Activities

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

Code Book: North Dakota Century Code
Citation: 23-06-30
Section Title: Abandoned cemeteries to be maintained by counties

Summary:

Authorizes the board of county commissioners in each county to provide for the identification, cataloging and recording of each abandoned cemetery located within the county. Requires the board, at least once a year, to provide for the general maintenance and upkeep of such cemeteries, to include having the weeds and grass cut, restoring gravestones to their original placement and performing other general maintenance necessary to maintain the dignity and appearance of the grounds. Defines a cemetery for the purposes of this section as a tract of land used as a burial plot that is filed with the register of public deeds of the county as a public burying place. Requires a county board to provide for registration of each abandoned cemetery with the Department of Health within one year of the board's notification by any interested party of the existence of such abandoned cemetery in the county.

Primary Topic: Local Government

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

Code Book: North Dakota Century Code
Citation: 55-03-00.1 through 55-03-04
Section Title: Protection of prehistoric sites and deposits: permits

Summary:

(00.1) Includes prehistoric or historic archeological sites, burial mounds and unregistered graves in the definition of cultural resources for the purposes of this chapter. (01) Requires an individual, organization, institution or company engaged in identifying, evaluating or mitigating adverse effects on cultural resources, historic buildings, structures or objects on any lands in the state under 106 of the National Historic Preservation Act of 1966 or 38-14.1-14(1)(u) of the North Dakota Century Code regarding permits for surface coal mining operations to obtain first an annual permit from the superintendent of the State Historical Board. Requires each application for such a permit to be accompanied by a filing fee of $100, which the superintendent may waive if the applicant is an instrumentality of the state. Requires the permit holder to submit to the State Historical Society of North Dakota payment in the amount of $50 with every cultural resources identification, evaluation and mitigation report submitted to the superintendent in compliance with the federal and state statutory and regulatory requirements identified in this section. Exempts from such payment a permittee submitting a report on behalf of a nonprofit corporation. (01.1) Requires an individual, organization, institution or company engaged in the investigation, excavation or other recording of cultural resources on land owned by an instrumentality of the state or in the excavation of cultural resources on private land for any purposes other than those identified in 55-03-01 to obtain first a permit from the superintendent. Requires each application to be accompanied by a fee of $100. (02) Requires a permit issued pursuant to an application made pursuant to 55-03-01 through 55-03-01.1 to describe the purpose of the permit clearly and to be in a form as prescribed by the superintendent. Prohibits a permit from being granted until the superintendent is satisfied that the applicant is professionally qualified to conduct the work for which a permit is required. Requires an applicant, when the cultural resources are on land owned by an instrumentality of the state, to agree to deliver to the superintendent all of the archeological or historical materials found and removed from such land. Requires an applicant, when the cultural resources are on private land, to agree to deliver to the superintendent all of the human remains and burial goods, as defined in 23-06-27, found and removed from such land. Requires the permittee in all cases to deliver to the superintendent copies of all records and reports pertinent to the work performed. (03) Declares that each permit issued pursuant to 55-03-01 shall terminate on December 31 of the year in which it is issued. Authorizes the superintendent to revoke any permit issued pursuant to 55-03-01 through 55-03-01.1 at any time if it appears that any identification, evaluation or mitigation of adverse effects on cultural resources, historic buildings, structures or objects performed by the permittee are being conducted negligently or improperly, or without regard for the careful preservation and conservation of the artifacts and materials they contain. (04) Requires all fees collected by the superintendent pursuant to 55-03-01 through 55-03-01.1 to be deposited in the revolving fund of the State Historical Board. Authorizes the superintendent to use such funds for making investigations of permit applicants and for the management and analysis of records and artifacts submitted to the superintendent pursuant to 55-03-01 through 55-03-02.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: North Dakota Century Code
Citation: 55-03-06
Section Title: Protection of prehistoric sites and deposits: upon sale of land by state or municipality archeological or paleontological materials retained

Summary:

Requires the state or a municipal subdivision to retain title to any archeological or paleontological materials found on or below the surface of any land that is sold, conveyed, transferred or leased by the state or by any agency, department or municipal subdivision of the state.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts

Code Book: North Dakota Century Code
Citation: 55-03-07
Section Title: Protection of prehistoric sites and deposits: violation; penalty

Summary:

Declares that a person who violates any provision of this chapter is guilty of a class A misdemeanor and shall forfeit to the state all archeological or historical articles and materials discovered by the violator. Directs that such violations must be held to be committed in the county where the exploration for or excavation of archeological or historical material was undertaken.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement



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