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The Law and American Indian Grave Protection

West Virginia 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: West Virginia Code
Citation: 20- 7A-5
Section Title: Archeology; permits for excavation; how obtained; prohibitions; penalties

Summary:

Prohibits a person from excavating, removing, destroying, injuring or defacing a historic or prehistoric ruin, burial ground, or archeological or paleontological site, including saltpeter workings, relics or inscriptions, fossilized footprints, bones or any other such feature which may be found in any cave. Requires a person to obtain a permit from the director of Natural Resources in order to excavate or remove archeological, paleontological, prehistoric and historic resources. Directs that permits shall be issued for a period of two years, may be renewed, but may not be transferred. Requires an applicant for a permit to: provide a detailed statement to the director giving reasons and objectives for excavation or removal and the benefits expected to obtained; provide data and results of any completed excavation, study or collection by the first of each calendar year; obtain the prior written permission of the director if the site of the proposed excavation is on state-owned land and prior written permission of the owner if the site is on private land; and carry the permit while exercising the privileges granted. Declares that a person who undertakes any archeological activity without a permit from the director shall be guilty of a misdemeanor and shall be fined not less than $100 nor more than $500, and may be imprisoned in the county jail for not less than ten days nor more than six months. Declares that a person who violates the provisions of an authorized permit may be fined not less than $100 nor more than $500, and the permit shall be revoked.

Primary Topic: Archeological Activities

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

Code Book: West Virginia Code
Citation: 29- 1- 8a (a)
Section Title: Protection of human skeletal remains: legislative findings and purpose

Summary:

Declares the purpose of this article to be to assure that all human burials be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds or religious affiliations. Declares that persons engaged in the scientific study or recovery of artifacts that have been acquired in accordance with the law are engaged in legitimate scientific and educational activities, the pursuit of which this legislation is intended to permit. Declares that this legislation is not intended to interfere with the normal activities of private property owners, farmers or those engaged in the development of mining or improvement of real property.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: West Virginia Code
Citation: 29- 1- 8a (c)
Section Title: Protection of human skeletal remains: acts prohibited; penalties

Summary:

Prohibits a person from excavating, removing, destroying or disturbing any historic or prehistoric ruin, burial ground, archeological site or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance without a valid permit issued by the director of the Historic Preservation Section of the Division of Culture and History. Exempts investigations undertaken in compliance with the federal Archeological Resources Protection Act from requirements to obtain such permits, but requires that the director be notified of such investigations and that reports be filed as required of persons issued permits. Exempts projects undertaken in compliance with Section 106 of the National Historic Preservation Act of 1966, as amended, or 29-1-8(a) of this article from requirements to obtain such permits for excavation, removal or destruction of historic or prehistoric ruins or archeological sites. Declares that a person who intentionally excavates, removes or destroys any historic or prehistoric ruin, burial ground or archeological site, or unmarked grave, grave artifact or grave marker of historical significance without first having been issued a valid permit by the director, or who fails to comply with the terms and conditions of such permit, is guilty of a misdemeanor, and shall be fined not less than $100 nor more than $500, and may be imprisoned in the county jail for not less than ten days nor more than six months, or both fined and imprisoned. Declares that a person who intentionally excavates, removes or destroys human skeletal remains of historical significance without first having been issued a valid permit by the director, or who fails to comply with the terms and conditions relating to disinterment or displacement of human skeletal remains of such permit, is guilty of the felony of disinterment or displacement of a dead human body under 61-8-14, and shall be imprisoned in the state penitentiary for not less than two nor more than five years. Declares that a person who intentionally withholds information about the excavation, removal or destruction of any historic or prehistoric ruin, burial ground, archeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance is guilty of a misdemeanor and shall be fined not more than $100, and may be imprisoned in the county jail for not more than ten days. Declares that a person who offers for sale or exchange any human skeletal remains, grave artifact or grave marker obtained in violation of this section is guilty of a misdemeanor and shall be fined not less than $1,000 nor more than $5,000, and may be imprisoned in the county jail for not less than six months nor more than one year.

Primary Topic: Archeological Activities

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

Code Book: West Virginia Code
Citation: 29- 1- 8a (d)
Section Title: Protection of human skeletal remains: notification of discovery of remains in unmarked locations

Summary:

Requires a person making a discovery of any human skeletal remains, grave artifact or grave marker in an unmarked grave on any publicly or privately owned property to notify the county sheriff within forty-eight hours. Directs the sheriff, if the human remains or grave artifact or marker appear to be from an unmarked grave at least fifty years old, to notify the director of the Historic Preservation Section of the Division of Culture and History promptly and prior to any further disturbance or removal. Requires the director to cause an on-site inspection of the disturbance to be made to determine the potential for archeological significance of the site. Requires, when such discoveries are made by an archeological investigation permitted under state or federal law, that the supervising archeologist directly notify the director. Authorizes the director, if it is determined that the site has a potential for archeological significance, to take such action as is reasonable, necessary and prudent, including consultation with appropriate private or public organizations, to preserve and advance the culture of the state in accordance with the powers and duties granted to the director, including the issuance of permits for the archeological excavation or removal of the remains. Requires the director to provide written reasons to the applicant if it is determined that issuance of a permit for archeological excavation or removal of the remains is not reasonable, necessary or prudent.

Primary Topic: Archeological Activities

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

Code Book: West Virginia Code
Citation: 29- 1- 8a (e)
Section Title: Protection of human skeletal remains: issuance of permits

Summary:

Requires the director of the Historic Preservation Section of the Division of Culture and History, before issuing a permit for the disturbance of human skeletal remains, grave artifacts or grave markers, to convene and chair an ad hoc committee to develop permit conditions. Directs that the committee shall consist of the chair and six or eight members representing known or presumed lineal descendants, private and public organizations which have cultural affiliation to the presumed contents of the site, the Council for West Virginia Archeology and the West Virginia Archeological Society. Directs that in the case of Native American sites, the committee shall include known or presumed lineal descendants preferably with cultural affiliation to tribes that existed in the geographic area that is now West Virginia. Requires that, in the case of a site of less than five acres, which is owned by an individual or a partnership, the ad hoc committee must be formed within thirty days of application by the property owner, must meet within sixty days of application and must render a decision within ninety days. Directs that permits must address at least the following conditions: method of notification of lineal descendants prior to the disturbance of the site; the respectful manner in which remains and artifacts are to be removed and handled; scientific analysis of the remains, artifacts or markers and the duration of those studies; the way in which the remains may be reburied, in consultation with any lineal descendants; methods for the respectful curation of recovered items; and other conditions as the director may deem necessary. Requires that expenses accrued in meeting permit conditions shall be borne by the permit applicant, except in cases where descendants or sponsors are willing to assume the costs. Requires that alternatives to disturbance and other mitigative measures be considered before a permit to disturb human skeletal remains or grave artifacts or markers is issued. Requires an applicant for a permit to: submit a detailed statement to the director giving objectives for excavation or removal and benefits expected to be obtained from the work; provide data and results of any excavation, study or collection in annual reports and a final report to the director; obtain the prior written permission of the owner if the site is on private land; and provide any other information deemed necessary by the ad hoc committee. Directs that permits shall be issued for a period of two years, may be renewed, but may not be transferred. Authorizes the revocation of the permit of a person who violates any of the provisions of this subsection, notwithstanding any other penalties under this section.

Primary Topic: Archeological Activities

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

Code Book: West Virginia Code
Citation: 29- 1- 8a (f)
Section Title: Protection of human skeletal remains: property tax exemption for unmarked grave sites

Summary:

Authorizes the director of the Historic Preservation Section of the Division of Culture and History, upon determining that unmarked graves exist on private property, to issue written certification to the landowner that the site containing the graves is a cemetery and as such is exempt from taxation upon presentation of the certification to the county assessor. Requires the director to determine the area of the site to receive property tax exempt status. Allows the property owner also to establish protective easements for the location of unmarked graves.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: West Virginia Code
Citation: 29- 1- 8a (g)
Section Title: Protection of human skeletal remains: additional provisions for enforcement; civil penalties; rewards

Summary:

Authorizes the director of the Historic Preservation Section of the Division of Culture and History to request the prosecuting attorney of the county in which a violation of 29-1-8a is alleged to have occurred to initiate criminal prosecutions or to seek civil damages, injunctive relief and any other appropriate relief. Declares that a person convicted of a prohibited act involving the excavation, removal, destruction, disturbance or offering for sale or exchange of a historic or prehistoric ruin, burial ground, archeological site, human skeletal remains, unmarked grave, grave artifact or grave marker under the provisions of 29-1-8a (c ) shall also be liable for civil damages to be assessed by the prosecuting attorney in consultation with the director. Directs that civil damages may include forfeiture of any and all equipment used in disturbing the protected unmarked graves or markers; costs incurred in cleaning, restoring, analyzing, accessioning and curating recovered material; costs associated with recovery of data and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the unmarked burials or markers; costs associated with restoring the land or the grave marker to its original condition; costs associated with reinterment of the human skeletal remains; and costs associated with the determination and collection of the civil damages. Requires that all damages recovered, minus costs associated with the determination and collection of such damages, shall be deposited in the Endangered Historic Properties Fund and may be expended by the commissioner of Culture and History for archeological programs at the state level, including the payment of rewards of up to $100,000 for information leading to the arrest and conviction of persons violating 29-1-8a (c ).

Primary Topic: Archeological Activities

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

Code Book: West Virginia Code
Citation: 29- 1- 8a (h)
Section Title: Protection of human skeletal remains: disposition of remains and artifacts not subject to reburial

Summary:

Directs that all human skeletal remains and grave artifacts found in unmarked graves on public or private land, and not subject to reburial, under the provisions of 29-1-8a (e), shall be held in trust for the people of West Virginia by the state and are under the jurisdiction of the director of Historic Preservation. Requires all material collected and not reburied through this section to be maintained with dignity and respect for the people of the state under the care of the West Virginia state museum.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Disposition of Human Remains

Code Book: West Virginia Code
Citation: 29- 1- 8b
Section Title: Protection of historic and prehistoric sites; penalties

Summary:

Prohibits the disturbance or destruction, except as permitted under 29-1-8 and 29-1-8a, of historic and prehistoric landmarks, sites and districts identified by the Historic Preservation Section of the Division of Culture and History, on lands owned or leased by the state, or on private lands where investigation and development rights have been acquired by the state by lease or contract. Declares that a person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, or imprisoned in the county jail not more than six months, or both.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement



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West Virginia government, preservation and state archaeological resource links.



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