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The Law and American Indian Grave Protection

Washington Laws

Archaeological sites and Native American graves are protected from knowing disturbance on all lands in Washington State. Federal law applies to all federal and Indian lands. Washington State law applies to all other lands. To review and down load copies of selected existing laws go to this page at the Washington State Office of Archaeology and Historic Preservation and access sites listed on it.

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: Revised Code of Washington
Citation: 27.44.030 through 27.44.050
Section Title: Protection of Indian graves and records: penalty; civil action by Indian tribe

Summary:

Declares it to be the intent of the Legislature to protect Indian burial sites, cairns, glyptic markings and historic graves located on public and private land, to encourage voluntary reporting and respectful handling in cases of accidental disturbance and to provide for enhanced penalties for deliberate desecration. Declares a person to be guilty of a class C felony punishable under chapter 9A.20 who knowingly removes, mutilates, defaces, injures or destroys any cairn or grave of any native Indian, or a glyptic or painted record of any tribe or peoples. Requires persons disturbing native Indian graves through inadvertence, including disturbance through construction, mining, logging or agricultural activity, to reinter the human remains under the supervision o f the appropriate Indian tribe, with the expenses of reinterment to be paid by the Office of Archeology and Historic Preservation. Declares a person to be guilty of a class C felony punishable under chapter 9A.20 who sells any native Indian artifacts or any human remains that are known to have been taken from an Indian cairn or grave, excluding those Indian artifacts discovered in or taken from locations other than native Indian cairns or graves or those removed from cairns or graves as may be authorized by a permit from the director of the Department of Community, Trade and Economic Development pursuant to 27.53.060. Declares that it shall be a complete defense in the prosecution under this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains, glyptic or painted records, or artifacts accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported. Allows an Indian tribe or enrolled member thereof to bring a civil action to secure an injunction, damages or other appropriate relief against any person who is alleged to have committed the above violations. Requires that the action be brought within two years of the discovery of the violation by the plaintiff and that it may be filed in the superior or tribal court of the county in which the grave, cairn, remains or artifacts are located, or in the superior court of the county in which the defendant resides. Allows the court to order forfeiture of any artifacts or remains acquired or equipment used in the violation and the reinterment of human remains. Allows the plaintiff to recover imputed damages of $500 or actual damages, including emotional distress, whichever is greater. Allows the plaintiff, upon proof that the violation was willful, to recover punitive damages, to be paid by the defendant to the Office of Archeology and Historic Preservation for the purposes of Indian historic preservation and to cover the cost of reinterment expenses by the office.

Primary Topic: Archeological Activities

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

Code Book: Revised Code of Washington
Citation: 27.44.020
Section Title: Examination of Indian graves and records permitted

Summary:

Allows an archeologist or an interested person to copy and examine any glyptic or painted Indian records or examine the surface of any Indian cairn or grave, provided that no such record or archeological material from any such cairn or grave may be removed unless the same is destined for reburial or perpetual preservation in a duly recognized archeological repository and permission for scientific research and removal of specimens of such records and material has been granted by the state historic preservation officer. Directs the state historic preservation officer to notify the affected Indian tribe whenever a request for permission to remove records or material is received.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Revised Code of Washington
Citation: 27.53.040 through 27.53.050
Section Title: Archeological resources, abandoned archeological resources: definitions

Summary:

Declares the following to be archeological resources: all sites, objects, structures, artifacts, implements and locations of prehistorical or archeological interest, whether previously recorded or still unrecognized, including those pertaining to prehistoric and historic American Indian or aboriginal burials, campsites, dwellings and habitation sites, including rock shelters and caves, their artifacts and implements of culture such as projectile points, arrowheads, skeletal remains, grave goods, basketry, pestles, mauls and grinding stones, knives, scrapers, rock carvings and paintings and other implements and artifacts of any material that are located in, on or under the surface of any lands or waters owned by or under the possession, custody or control of the state or any county, city or political subdivision of the state. Declares to be the public property of the state all historic archeological resources abandoned for thirty years or more in, on or under the surface of any public lands or waters, owned by or under the possession, custody or control of the state, including all ships or aircraft and any part of the contents thereof, and all treasure trove.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Underwater Archeological Activity

Code Book: Revised Code of Washington
Citation: 27.53.060
Section Title: Disturbing archeological resource or site without written permit or permission unlawful

Summary:

Declares it to be unlawful on private or public lands of the state for any person, firm, corporation or agency or institution of the state or a political subdivision of the state knowingly to remove, alter, dig into or excavate by use of any mechanical, hydraulic or other means, or to damage, deface or destroy any historic or prehistoric archeological resource or site, or remove any archeological object from such site without having obtained a written permit from the director of the Department of Community, Trade and Economic Development. Exempts from the provisions of this chapter the disturbance or removal of Indian graves or cairns, or any glyptic or painted record of any tribe or peoples, or historic graves as defined in chapter 68.05, which shall be punishable as a class C felony punishable under chapter 9A.20. Requires the director, prior to issuance of a permit, to obtain the consent of the private or public owner or agency responsible for the management of the property, who may condition its consent on the execution of a separate agreement with the applicant. Requires the director, in consultation with the affected tribes, to develop guidelines for the issuance of permits. Requires that a permit or other agreement be physically present while such activity is being conducted. Exempts from the provisions of this section the removal of artifacts found exposed on the surface of the ground that are not historic archeological resources or sites.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Revised Code of Washington
Citation: 27.53.070
Section Title: Field investigations; communication of site or resource location to research center

Summary:

Discourages field investigations on privately owned lands except in accordance with both the provisions and spirit to this chapter. Encourages persons having knowledge of the location of archeological sites or resources to notify the Washington Archeological Research Center. Directs that such information shall not constitute a public record that requires public disclosure.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Private Funds
    • Private Property

Code Book: Revised Code of Washington
Citation: 27.53.080
Section Title: Archeological activities upon public lands

Summary:

Authorizes professional archeologists, in performance of their duties, to enter upon public lands of the state and its political subdivisions, at such times and in such manner as not to interfere with the normal management thereof, to locate and evaluate archeological resources, including site sampling activities. Allows scientific excavations to be carried out only after appropriate agreement has been made between a professional archeologist or an institution of higher education and the agency or political subdivision responsible for such lands. Requires that notice of such agreement be filed with the Washington Archeological Research Center and by the center to the Department of Community, Trade and Economic Development. Allows amateur societies to engage in such activities by submitting and having approved by the responsible agency or political subdivision a written proposal detailing the scope and duration of the activity, after the center has reviewed and made recommendations on such proposal.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Revised Code of Washington
Citation: 27.53.090
Section Title: Archeological sites and resources: violations; penalty

Summary:

Declares that any person, firm or corporation violating any of the provisions of this chapter shall be guilty of a misdemeanor, with each day of continued violation constituting a separate offense. Requires such offenses to be reported to the appropriate law enforcement agency or to the director of the Department of Community, Trade and Economic Development.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Revised Code of Washington
Citation: 27.53.100
Section Title: Historic archeological resources on state-owned aquatic lands

Summary:

Directs that persons, firms, corporations, institutions or agencies that discover a previously unreported historic archeological resource on state-owned aquatic lands and report the site or location to the Department of Community, Trade and Economic Development shall have a right of first refusal to future salvage permits granted for the recovery of that resource, subject to the provisions of 27.53.110. Extends such right of first refusal for five years from the date of the report. Requires the reporting entity, should another person, firm, corporation, institution or agency apply for a permit to salvage that resource, to submit its own permit application and exercise its first refusal right within sixty days, or the right shall be extinguished.

Primary Topic: Archeological Activities

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

Code Book: Revised Code of Washington
Citation: 27.53.110
Section Title: Contracts for discovery and salvage of state-owned historic archeological resources

Summary:

Authorizes the director of the Department of Community, Trade and Economic Development to enter into contracts with other state agencies or institutions and with qualified private institutions, persons, firms or corporations for the discovery and salvage of state-owned historic archeological resources. Requires contracts regarding historic shipwrecks to include the following provisions: a salvor shall receive fair compensation, meaning an amount not less than 90% of the appraised value of the objects recovered following successful completion of the contract; a salvor may retain objects with a value up to but not to exceed 90% of the appraised value of the total objects recovered, or cash, or a combination of objects or cash, and shall not be entitled to further compensation from any state sources; and the state will be given first choice of which objects it may wish to retain for display purposes from among all objects recovered, with a value of up to but not to exceed 10% of the appraised value of the total objects recovered, or the state may choose to receive its share in cash or a combination of cash and objects; the state and salvor shall have the right to select a single appraiser or joint appraisers; and title to the objects shall pass to the salvor when the permit is issued, but title to all objects shall revert to the state if the salvor fails to perform fully under the terms of the contract. Requires contracts regarding historic aircraft to include the following provisions: a museum, historical society, nonprofit organization or government entity only may recover historic aircraft belonging to the state; title to the aircraft may only be passed by the state to one of the previously listed entities; compensation to the salvor shall only be derived from the sale or exchange of the aircraft to one of the previously listed entities as the salvor may arrange, but the salvor shall not have a claim to compensation from state funds. Authorizes the director, at his or her discretion, to negotiate the terms of contracts regarding other historic archeological resources.

Primary Topic: Archeological Activities

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

Code Book: Revised Code of Washington
Citation: 27.53.120
Section Title: Recovery of property from historic archeological sites; mitigation; refusal to issue salvage permit

Summary:

Requires a salvor to mitigate any archeological damage that occurs during a salvage operation. Declares that the Department of Community, Trade and Economic Development shall have access to all property recovered from historic archeological sites for purposes of scholarly research and photographic documentation for a period to be agreed upon by the parties following completion of the salvage operation. Authorizes the department to have the right to publish scientific papers concerning the results of all research conducted as project mitigation. Authorizes the director of the department to refuse to issue a permit for salvaging a historic archeological resource if that resource would be destroyed beyond mitigation by the proposed salvage operation. Grants first right of refusal to any agency, institution, person, firm or corporation that has been denied a permit for such a reason if technology should be found at a future date that would make salvage possible without destroying the resource. Directs that such right of refusal shall be in effect for sixty days after the director has determined that salvage can be accomplished by a subsequent applicant without destroying the resource. Prohibits a person, firm or corporation from conducting such salvage or recovery operation without first obtaining such a contract.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Revised Code of Washington
Citation: 27.53.130
Section Title: List of aquatic areas requiring archeological permits

Summary:

Directs the Department of Community, Trade and Economic Development to publish annually and update as necessary a list of those areas where permits are required to protect historic archeological sites on aquatic lands.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Underwater Archeological Activity

Code Book: Revised Code of Washington
Citation: 68.60.040
Section Title: Protection of cemeteries: penalties

Summary:

Declares that a person is guilty of a class C felony punishable under chapter 9A.20 who unlawfully or without right willfully destroys, cuts, mutilates, effaces or otherwise injures, tears down or removes any tomb, plot, monument, memorial or marker in a cemetery, or any gate, door, fence, wall, post or railing, or any enclosure for the protection of a cemetery or any property in a cemetery. Declares that a person is guilty of a gross misdemeanor who within the limits of a cemetery unlawfully or without right willfully destroys, cuts, breaks, removes or injures any building, statuary, ornamentation, tree, shrub, flower or plant. Declares a person to be guilty of a class C felony who in a cemetery unlawfully or without right willfully: opens a grave; removes personal effects of the decedent; removes all or portions of human remains; removes or damages caskets, surrounds, outer burial containers or any other device used in making the original burial; transports unlawfully removed human remains from the cemetery; or knowingly receives unlawfully removed human remains from the cemetery.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Revised Code of Washington
Citation: 68.60.050
Section Title: Protection of historic graves: penalties

Summary:

Declares a person to be guilty of a class C felony punishable under chapter 9A.20 who knowingly removes, mutilates, defaces, injures or destroys a historic grave, as defined in 68.60.010. Requires persons disturbing historic graves through inadvertence, including disturbance through construction, to reinter the human remains under the supervision of the cemetery board, with expenses for such reinterment to be provided by the Office of Archeology and Historic Preservation. Exempts actions taken in the performance of official law enforcement duties from the requirements of this section. Declares it to be a complete defense in a prosecution under this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Revised Code of Washington
Citation: 68.60.060
Section Title: Abandoned and historic cemeteries and historic graves: civil liabilities

Summary:

Declares that a person who violates any provision of this chapter is liable in a civil action by and in the name of the state cemetery board to pay all damages occasioned by their unlawful acts. Directs that the money recovered shall be applied in payment for the repair and restoration of the property injured or destroyed and to the care fund if one is established.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Revised Code of Washington
Citation: 79.90.565
Section Title: Archeological activities on state-owned aquatic lands--agreements, leases, or other conveyances

Summary:

Authorizes the director of community, trade and economic development, after consultation with the director of natural resources, to enter into agreements, leases or other conveyances for archeological activities on state-owned aquatic lands. Allows such agreements, leases or other conveyances to contain such conditions as are required for the Department of Natural Resources to comply with its legal rights and duties. Requires that all such agreements, leases or other conveyances shall be issued in accordance with the terms of chapters 79.90 through 79.96 RCW.

Primary Topic: Archeological Activities

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

Code Book: Revised Code of Washington
Citation: 79A.05.190, 79A.05.195
Section Title: Public recreation lands: recreational metal detectors--available land; identification of historic archeological resources in state parks--Plan--Availability of land for use by recreational metal detectors

Summary:

(1) Directs the Parks and Recreation Commission, by September 1, 1997, to increase the area available for use by recreational metal detectors by at least two hundred acres. (2) Directs the commission, beginning September 1, 1998, and each year thereafter until August 31, 2003, to increase the area of land available for use by recreational metal detectors by at least fifty acres. [Intent--1997 c 150: "It is the intent of the legislature that those significant historic archeological resources on state park lands that are of importance to the history of our state, or its communities, be protected for the people of the state. At the same time, the legislature also recognizes that the recreational use of metal detectors in state parks is a legitimate form of recreation that can be compatible with the protection of significant historic archaeological resources. 1997 c 150 1.] (79A.05.195)(1) Directs the Parks and Recreation Commission to develop a cost-effective plan to identify historic archeological resources in at least one state park containing a military fort located in Puget Sound, which plan shall include the use of a professional archeologist and volunteer citizens. (2) Allows any park land that is made available for use by recreational metal detectors under this section to count toward the requirements established in RCW 79A.05.190.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority



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