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The Law and American Indian Grave Protection

Virginia Laws

When contacted April 2001 as to burial laws, Virginia State Archaeologist, Catherine Slusser, specifically referred to Code sections 18.2-126 and 127 (concerning violation of sepulture and vandalism to church grounds and cemeteries), 10.1-2305 (concerning permits for archaeological removal of human burials), and sections 57-36, 57-37, 57-38 and 57-39 (all of which deal with removal of abandoned cemeteries). She wrote, "The Virginia Attorney General's office advised us long ago that the laws protecting cemeteries should be interpreted to apply to all cemeteries and grave yards regardless of age or ethnic affiliation. In the absence of legislation that directly addresses Native American graves as a separate category, we have consistently used the existing law in all of our programs and advice to others."

She also wrote, "Under Virginia law there are only two ways to get authorization to remove a grave. One is through a court order. Sections 57-36 through 57-39 cover different court order removal situations. The only other legal option is to get an archaeological permit for the removal of human remains and artifacts. That is authorized under section 10.1-2305. It applies only to circumstances when legitimate archaeology is being conducted. The standards and requirements for those permits are far more exacting than the court order process and require consultation with the Virginia Native American community."

One may conduct a search here for Viginia 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: Code of Virginia
Citation: 10.1-1001 through 10.1-1004
Section Title: Caves: vandalism; penalties

Summary:

Continues the Cave Board within the Department of Conservation and Recreation, to consist of the director of the Department of Historic Resources and eleven citizens of Virginia appointed by the governor. Directs the board to undertake duties, which shall include the protection of the rare, unique and irreplaceable minerals and archeological resources found in caves. Requires that a permit be obtained from the Department of Conservation and Recreation prior to excavating or removing any archeological, paleontological, or historic feature of any cave. Declares it to be unlawful and punishable as a class 1 misdemeanor, for any person, without the express, prior, written permission of the owner, to excavate, remove, destroy, injure, deface, or in any manner disturb any burial grounds, historic or prehistoric resources, archeological or paleontological site or any part thereof, including relics, inscriptions, saltpeter works, fossils, bones remains of historical human activity, or any other such features which may be found in any cave, except those caves owned by the commonwealth or designated as commonwealth archeological sites or zones, and which are subject to the provisions of the Virginia Antiquities Act under 10.1-2300.

Primary Topic: Archeological Activities

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

Code Book: Code of Virginia
Citation: 10.1-2214
Section Title: Underwater historic property; penalty

Summary:

Defines underwater historic property as any submerged shipwreck, vessel, cargo, tackle, or underwater archeological specimen, including any object found at underwater refuse sites or submerged sites of former habitation, that has remained unclaimed on the state-owned subaqueous bottom and has historic value as determined by the Department of Historic Resources. Declares that all underwater historic property is the exclusive property of the commonwealth and that the preservation and protection of such property is the responsibility of all state agencies, including but not limited to the Department of Historic Resources, the Virginia Institute of Marine Science and the Virginia Marine Resources Commission. Requires that such property be preserved, protected and displayed for the public benefit as may be practicable. Requires any person, firm or corporation seeking to conduct any recovery operations involving the removal, destruction, or disturbance of any underwater historic property first to apply for and receive a permit from the Virginia Marine Resources Commission with the concurrence of the Department of Historic Resources and the Virginia Institute of Marine Science. Declares that all objects recovered remain the exclusive property of the commonwealth and provides the permit holder with a fair share of the objects recovered or a percentage of the cash value. Enables the Department of Historic Resources to seek a permit to preserve and protect or recover any underwater historic property. Declares any person violating the provisions of this section to be guilty of a class 1 misdemeanor and requires forfeit to the commonwealth of any objects recovered.

Primary Topic: Archeological Activities

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

Code Book: Code of Virginia
Citation: 10.1-2302
Section Title: Virginia Antiquities Act: permit required to conduct field investigations; ownership of objects of antiquity; penalty

Summary:

Requires a permit from the Director of the Department of Historic Resources for any person to conduct field investigations, explorations, or recovery operations involving the removal, destruction or disturbance of any object of antiquity on state-controlled land or on a state archeological site or zone. Retains exclusive title to all objects of antiquity recovered from state-controlled land within the commonwealth, unless such objects are released by the director. Retains title with the land owner to some or all objects of antiquity recovered from state archeological sites not located on state-controlled land. Directs that all field investigations, explorations, or recovery operations undertaken pursuant to a permit issued under this section shall be carried out under the general supervision of the director. Requires the written approval of any state agency if such field investigation as described in an application for a permit is likely to interfere with an activity of the agency. Declares that any person who violates the provisions of this section shall be guilty of a class 1 misdemeanor.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Code of Virginia
Citation: 10.1-2301
Section Title: Virginia Antiquities Act: duties of the director of the Department of Historic Resources

Summary:

Directs the director of the Department of Historic Resources to undertake the following duties: coordinate all archeological research on state-controlled land and in state archeological sites and zones; coordinate a survey of significant archeological sites located on state-controlled land, and upon request, survey and officially recognize significant archeological sites on privately owned land; identify, evaluate, preserve, and protect sites and objects of antiquity which have historic, scientific, archeological, or educational value and are located on state-controlled land or on state archeological sites or zones; protect such sites and objects from neglect, damage, or destruction; ensure that such sites and objects are identified, evaluated, and properly explored so that adequate records may be made; encourage private owners of designated state archeological sites to cooperate with the commonwealth to preserve the site; and encourage a statewide archeological public education program.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Survey / Inventory of Sites

Code Book: Code of Virginia
Citation: 10.1-2303
Section Title: Virginia Antiquities Act: control of archeological sites; authority of director to contract

Summary:

Reserves for the commonwealth, through the director of the Department of Historic Resources, the right and privilege of field investigation on sites that are on state-controlled land. Requires the director first to obtain all permits of other state agencies required by law. Enables the director to permit others to conduct such investigations. Retains ownership with the state of all objects of antiquity derived from or found on state-controlled land.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Code of Virginia
Citation: 10.1-2305
Section Title: Virginia Antiquities Act: permit required for the archeological investigation of human remains

Summary:

Requires a permit from the director of the Department of Historic Resources for any person to conduct any type of archeological field investigation involving the removal of human skeletal remains or associated artifacts from any unmarked human burial regardless of the age or ownership of the site. Exempts excavations of unmarked burials that are not part of a legally chartered cemetery from the requirements of 57-38.1 and 57-39. Considers the department to be an interested party in court proceedings considering the abandonment of legally constituted cemeteries or family graveyards with historical significance and requires a permit from the director if archeological investigations are undertaken as part of a court-approved removal of a formally chartered cemetery. Requires the Board of Historic Resources to promulgate regulations implementing this section that provide for appropriate public notice before issuing a permit and set standards for appropriate treatment and disposition of excavated remains and the quality of the research conducted on remains. Enables the department to carry out such excavations and research without a permit. Enables any interested party to appeal the director's decision to issue a permit or to act directly to excavate human remains to the local circuit court within fourteen days of the director's decision.

Primary Topic: Archeological Activities

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

Code Book: Code of Virginia
Citation: 10.1-2306
Section Title: Virginia Antiquities Act: violations; penalties

Summary:

Declares it to be unlawful and punishable as a class 1 misdemeanor for any person intentionally to deface, damage, destroy, displace, disturb, or remove any object of antiquity on any designated state archeological site or state-controlled land.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Code of Virginia
Citation: 18.2-126, 18.2-127
Section Title: Violation of sepulture; injuries to cemeteries, burial grounds, etc.; penalties

Summary:

(18.2-126)(A) Declares that a person who unlawfully disinters or displaces a dead human body, or any part of a dead human body that has been deposited in any vault, grave or other burial place, is guilty of a Class 4 felony. (18.2-127)(B) Declares that a person is guilty of a Class 6 felony who willfully or maliciously destroys, mutilates, defaces, injures, or removes any object or structure permanently attached or affixed within any church or on church property, any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery.

Primary Topic: Archeological Activities

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

Code Book: Code of Virginia
Citation: 28.2- 638
Section Title: Authority of governor to authorize dredging of channel in navigable waters

Summary:

Authorizes the governor to grant approval, on behalf of the commonwealth, for any person to dredge a channel of any navigable stream, the bed of which is owned by the commonwealth, for the purpose of deepening, widening or relocating such channel and making related improvements, upon such terms and conditions as the governor deems appropriate after the receipt of advisory reports from the Virginia Institute of Marine Science, the State Water Control Board, the Marine Resources Commission, the Board of Game and Inland Fisheries, the director of the Department of Conservation and Recreation, the director of the Department of Historic Resources, the State Port Authority and the Commonwealth Transportation Board.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Underwater Archeological Activity

Code Book: Code of Virginia
Citation: 28.2-1203 through 28.2-1206
Section Title: Virginia Marine Resources Commission

Summary:

(28.2-1203)(A) Declares that it shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams or creeks that are the property of the commonwealth, unless such act is performed pursuant to a permit issued by the Marine Resources Commission or is necessary for the following: (1) erection of dams, the construction of which has been authorized by proper authority; (2) uses of subaqueous beds authorized elsewhere in this title; (3) construction and maintenance of congressionally approved navigation and flood-control projects undertaken by the U. S. Army Corps of Engineers, U. S. Coast Guard, or other federal agency authorized by Congress to regulate navigation, navigable waters, or flood control; (4) construction of piers, docks, marine terminals and port facilities owned or leased by or to the commonwealth or any of its political subdivisions; or (5) placement of private piers for noncommercial purposes by owners of the riparian lands in the waters opposite those lands, provided that the piers do not extend beyond the navigation line or private pier lines established by the commission or the U. S. Army Corps of Engineers. (B) Declares a violation of this section to be a Class 1 misdemeanor. (28.2-1204)(2) Authorizes the Virginia Marine Resources Commission, among other responsibilities, to issue permits to recover underwater historic property pursuant to 10.1-2214 and 28.2-1203. (28.2-1205)(D) Requires that all permits issued by the commission for the use of state-owned bottomlands or to recover underwater historic property shall be in writing and shall specify the conditions, terms and royalties that the commission determines are appropriate. (28.2-1206)(A) Requires that a fee of $25 be paid to the commission for issuing each permit to recover underwater historic property. (C) Requires such a permit to indicate whether an activity or project will involve the removal of bottom material, and, if granted, to specify a royalty of not less than twenty cents, nor more than sixty cents, per cubic yard of bottom material removed. Directs the commission, in fixing the amount of the royalty, to consider, among other factors, the following: (1) the primary and secondary purposes for removing the bottom material; (2) whether the material has any commercial value and whether it will be used for any commercial purpose; (3) the use to be made of the removed material and any public benefit or adverse effect upon the public that will result from the removal or disposal of the material; (4) the physical characteristics of the material to be removed; and (5) the expense of removing and disposing of the material. (D) Allows the commission, where it appears that the project or facility for which a permit application is made has been completed or work thereon commenced at the time application is made, to impose additional assessments not to exceed an amount of three times the normal permit fee and royalties. (E) Exempts from all fees and royalties any bottom material removed attendant to maintenance dredging. Exempts the Virginia Department of Transportation from all fees and royalties otherwise assessable under this section. Requires all counties, cities and towns of the commonwealth to pay the required permit fee but exempts such local governments from all other fees and royalties assessable under this section if the permit is issued prior to the commencement of any work to be accomplished under the permit. (F) Declares that all fees and royalties collected pursuant to this chapter shall be paid into the state treasury to the credit of the Public Oyster Rocks Replenishment Fund.

Primary Topic: Archeological Activities

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



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