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The Law and American Indian Grave Protection

Utah Laws

When contacted April 2001 as to burial ground laws, Kevin Jones, Utah State Archaeologist wrote:

"All of the Utah state laws pertaining to archaeology, grave desecration, and repatriation are available on our web site at: history.utah.org/Services/arlaws.html

"While several laws apply, the most pertinent are the Native American Graves Protection and Repatriation Act: le.state.ut.us/~code/TITLE09/HTM/09_08026.HTM

"and the prohibition against desecration of a dead human body: le.state.ut.us/~code/TITLE76/htm/76_0B039.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: Utah Code
Citation: § 9- 8-305
Section Title: State Antiquities Section: permit required to survey or excavate on state lands; criminal penalties

Summary:

Requires a person to obtain a permit from the Division of State History to survey or excavate for archeological resources on lands owned or controlled by the state or its subdivisions, or to obtain a permit from the School and Institutional Trust Lands Administration to survey or excavate on school and institutional trust lands. Authorizes the division to enter memoranda of agreement to issue permits for federal and Native American lands within the state. Declares that issuance of a permit by the administration requires consultation with the state historic preservation officer pursuant to §9-8-404. Authorizes the administration to delegate authority to the division to issue permits for school and institutional lands. Directs that all permits require proof of consultation with any appropriate Native American tribe and with the Utah Museum of Natural History regarding curation of collections. Directs that permits issued by the division for excavations also shall require proof of permission from the landowner; research designs to provide for recovery of the maximum amount of archeological information, in addition to the physical recovery of specimens, and the reporting of archeological information to meet current scientific standards; and proof of consultation with any state agency that may manage the land. Directs that work carried out under a permit from the division shall be under the general supervision of the state archeologist. Directs that collections recovered from lands owned or controlled by the state or its subdivisions shall be owned by the state, and those recovered from school and institutional trust lands shall be owned by the respective trust. Directs that a repository or curation facility for collections from lands owned or controlled by the state or its subdivisions shall be designated pursuant to §53B-17-603. Prohibits removal from the state, prior to placement in a repository or curation facility, of any specimen from lands subject to a permit from the Division of State History without permission from the division in consultation with the landowner or the state agency managing the land, or from school and institutional trust lands without permission from the School and Institutional Trust Lands Administration in consultation with the division. Authorizes the permitting agency to revoke a permit if the permittee fails to conduct a survey or excavation pursuant to law, rules or provisions of the permit. Declares that a person violating this section is guilty of a class B misdemeanor and, in addition to other penalties, shall forfeit to the state or the respective trust all archeological resources discovered.

Primary Topic: Archeological Activities

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

Code Book: Utah Code
Citation: § 9- 8-306
Section Title: State Antiquities Section: archeological or anthropological landmarks

Summary:

Authorizes the Board of State History to approve significant sites as state archeological or anthropological landmarks. Requires the consent of the owner to designate sites on private land or on school and institutional trust lands. Prohibits excavation of privately owned designated landmarks without a permit. Requires that the Division of State History be given three months notice of intent before any alteration is commenced on a designated landmark.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Utah Code
Citation: § 9- 8-307
Section Title: State Antiquities Section: report of discovery on state or private lands

Summary:

Requires a person who discovers any archeological resources on lands owned by the state or its subdivisions or on privately owned land to report the discovery promptly to the Division of State History. Discourages field investigations except in accordance with Part 3 (§9-8-301 through §9-8-308) and Part 4 (§9-8-401 through §9-8-405). Declares that nothing in this section may be construed to authorize a person to survey or excavate for archeological resources.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Utah Code
Citation: § 9- 8-308
Section Title: State Antiquities Section: forgery or false labeling of specimens unlawful

Summary:

Declares it to be unlawful to reproduce, rework or forge a specimen or make an object, whether copied or not, or falsely label, describe, identify of offer for sale or exchange an object, with intent to represent it as an original and genuine specimen. Prohibits a person from selling or otherwise exchanging an object with knowledge that it was collected or excavated in violation of law.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Utah Code
Citation: § 9- 9-403
Section Title: Native American Grave Protection and Repatriation Act: ownership and disposition of remains

Summary:

Establishes the following priority for the control and ownership of Native American remains that are discovered on state lands: first, the lineal descendants of the Native American; second, if the lineal descendant cannot be ascertained, the Indian tribe that has the closest cultural affiliation with the remains and that states a claim for the remains; and third, if the cultural affiliation cannot be ascertained, the Indian tribe that is recognized as aboriginally occupying the area where the remains were discovered, if that tribe states a claim for the remains, or in a different tribe if can be shown that the different tribe has a stronger genetic or cultural relationship with the remains. Directs that Native American remains not claimed shall be disposed of in accordance with rules promulgated by the Division of Indian Affairs in consultation with Native American groups, representatives of repositories and the Native American Remains Review Committee. Allows the intentional removal or excavation of Native American remains from state lands only under the terms of a permit issued by the Division of State History pursuant to §9-8-305, after consultation with the land owner and with the owner's written consent and if the ownership or right of control of the disposition of the remains is determined. Requires a person who knows that he or she has discovered Native American remains on state lands to notify in writing the appropriate state agency having primary management authority over the land and, if the discovery was made in connection with construction, mining, logging, agriculture or a related activity, to cease all such activity in the area of the discovery until a reasonable effort has been made to protect the remains. Allows scientific study of remains only with the approval of the owner of the remains as established in this section, or, if ownership is unknown, restricts prior study to those sufficient to identify ownership. Directs that remains may be retained no longer than ninety days after the date of establishing ownership. Authorizes the state agency having primary authority over the land where the remains were discovered, if there are multiple requests for repatriation of such remains and the Division of History cannot clearly determine which requesting party is the most appropriate, to retain any remains until the requesting parties agree upon disposition of the remains or the dispute is otherwise resolved by a court of competent jurisdiction.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Utah Code
Citation: § 9- 9-404
Section Title: Native American Grave Protection and Repatriation Act: illegal trafficking

Summary:

Declares a person to be guilty of a class A misdemeanor who knowingly sells, purchases, uses for profit or transports for sale or profit the remains of a Native American without the right of possession to those remains as provided in §9-9-403 or obtained through any violation of this part, and to be guilty of a third degree felony in the case of subsequent violations.

Primary Topic: Archeological Activities

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

Code Book: Utah Code
Citation: § 9- 9-405
Section Title: Native American Grave Protection and Repatriation Act: review committee

Summary:

Creates the seven-member Native American Remains Review Committee, to consist of four members appointed by the director of the Division of Indian Affairs from nominations submitted by Indian tribes and three members appointed by the director from nominations submitted by representatives of repositories. Directs the committee to: monitor the identification process conducted under §9-9-403; review, upon the request of any affected party, findings relating to the identity or cultural affiliation of remains or the return of those remains; facilitate the resolution of any disputes among Indian tribes or lineal descendants and state agencies relating to the return of remains, including convening the parties to the dispute; consult with Indian tribes and the Division on Indian Affairs; and make recommendations, if appropriate, regarding future care of remains that are to be repatriated. Directs state agencies having primary authority over the lands where Native American remains are discovered to ensure that the review committee has reasonable access to the remains under review and to associated scientific and historical documents. Directs the committee to submit an annual report to the Native American Legislative Liaison Committee on the progress made and any barriers encountered in implementing this section.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Utah Code
Citation: §76-9-704
Section Title: Abuse or desecration of a dead human body: penalties

Summary:

(2)(f) Exempts a person from penalties imposed under this section who is acting lawfully in directing or carrying out procedures regarding a dead human body under Title 9, Chapter 8, Part 3, Antiquities.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Utah Code
Citation: §76-6-901 through 76-6-903
Section Title: Cultural sites protection: prohibitions; penalties

Summary:

(§76-6-901) Defines "antiquities" as: (a) all material remains and their associations, recoverable through excavation or surface collection, that provide information pertaining to the historic or prehistoric peoples in the state; and (b) vertebrate fossils and other exceptional fossils and fossil sites designated as state landmarks. Defines "person" as an individual, corporation, partnership, trust, institution, association or any other private entity or any officer, employee, agent, department or instrumentality of the United States, of any Native American tribe, or of any state or political subdivision of any state. Defines "state lands" as all lands owned by Utah, including all lands owned by political subdivisions, and school and institutional trust lands. (§76-6-902)(1) Prohibits any person from intentionally altering, removing, injuring or destroying antiquities without the owner’s consent. (2) Prohibits a person from intentionally reproducing, reworking or forging any antiquities or making any object, whether copies or not, or falsely labeling, describing, identifying or offering for sale or exchanging any object with the intent to represent the object as original and genuine, or from offering any object for sale or exchange that was collected or excavated in violation of this chapter. (§76-6-903)(1) Declares that a person is guilty of a class B misdemeanor if that person: (a) violates this part; or (b) counsels, procures, solicits or employs any other person to violate this part. (2) Declares that a person is guilty of a third degree felony if: (a) that person commits a second or subsequent violation described in Subsection (1); or (b) the amount calculated under Subsection (3) for a violation described in Subsection (1) exceeds $500. (3) Directs that the amount described in Subsection (2)(b) is calculated by adding the: (a) commercial or archeological value of the antiquities involved in the violation; and (b) cost of the restoration and repair of the antiquities involved in the violation. (4)(a) Requires that all property used in conjunction with the criminal activity, together with all photographs and records, shall be forfeited to the state. (b) Requires that all articles and material discovered, collected, excavated or offered for sale or exchange shall be surrendered to the landowner.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement



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Utah government, preservation and state archaeological resource links.



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