Senate Bill No. 482
(By Senators Love, Schoonover, Ross, Hunter and Anderson)
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[Introduced February 9, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section eight-a, article one, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to issuance of
permits for the disturbance of human skeletal remains, grave
artifacts or grave markers; and adding the West Virginia
council on American Indian burial rights to the committee
that determines permit conditions.
Be it enacted by the Legislature of West Virginia:
That section eight-a, article one, chapter twenty-nine of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-8a. Protection of human skeletal remains, grave artifacts
and grave markers; permits for excavation and removal; penalties.
(a) Legislative findings and purpose.
The Legislature finds that there is a real and growing
threat to the safety and sanctity of unmarked human graves in
West Virginia and the existing laws of the state do not provide
equal or adequate protection for all such graves. As evident by
the numerous incidents in West Virginia which have resulted in
the desecration of human remains and vandalism to grave markers,
there is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is 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.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been
acquired in accordance with the law are engaged in legitimate and
worthy scientific and educational activities. Therefore, this
legislation is intended to permit the appropriate pursuit of
those lawful activities.
Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers or
those engaged in the development, mining or improvement of real
property.
(b) Definitions.
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth, hair or
tissue of a deceased human body;
(2) "Unmarked grave" means any grave or location where a
human body or bodies have been buried or deposited for at least
fifty years and the grave or location is not in a publicly or
privately maintained cemetery or in the care of a cemetery
association, or is located within such cemetery or in such care
and is not commonly marked;
(3) "Grave artifact" means any items of human manufacture or
use that are associated with the human skeletal remains in a
grave;
(4) "Grave marker" means any tomb, monument, stone,
ornament, mound or other item of human manufacture that is
associated with a grave;
(5) "Person" includes the federal and state governments and
any political subdivision of this state;
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting or desecrating in any
way of human skeletal remains, unmarked graves, grave artifacts
or grave markers;
(7) "Native American tribe" means any Indian tribe, band,
nation or organized group or community which is recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians;
(8) "Cultural affiliation" means the relationship of shared
group identity which can be reasonably traced historically or
prehistorically between a present day group and an identifiable
earlier group;
(9) "Lineal descendants" means any individuals tracing his
or her ancestry directly or by proven kinship; and
(10) "Proven kinship" means the relationship among people
that exists because of genetic descent, which includes racial
descent.
(c) Acts prohibited; penalties.
(1) No person may excavate, remove, destroy or otherwise
disturb any historic or prehistoric ruins, burial grounds,
archaeological site or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance unless
such person has a valid permit issued to him or her by the
director of the historic preservation section: Provided, That
the supervising archaeologist of an archaeological investigation
being undertaken in compliance with the federal Archaeological
Resources Protection Act (Public Law 96-95 at 16 USC 470(aa)) and
regulations promulgated thereunder shall are not be required to
obtain such permit, but shall notify the director of the historic
preservation section that such an investigation is being
undertaken and file reports as are required of persons issued a
permit under this section: Provided, however, That projects
being undertaken in compliance with section 106 of the National
Historic Preservation Act of 1966, as amended, or subsection (a),
section five of this article shall are not be required to obtain
such a permit for excavation, removal, destruction or disturbance
of historic or prehistoric ruins or archaeological sites.
A person who, either by himself or through an agent, intentionally excavates, removes, destroys or otherwise disturbs
any historic or prehistoric ruins, burial grounds or
archaeological site, or unmarked grave, grave artifact or grave
marker of historical significance without first having been
issued a valid permit by the director of the historic
preservation section, or who fails to comply with the terms and
conditions of such a permit, is guilty of a misdemeanor and, upon
conviction, shall be fined not less than one hundred dollars nor
more than five hundred dollars, and may be imprisoned in the
county or regional jail for not less than ten days nor more than
six months or both fined and imprisoned.
A person who, either by himself or through an agent,
intentionally excavates, removes, destroys or otherwise disturbs
human skeletal remains of historical significance without first
having been issued a valid permit by the director of the historic
preservation section, 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 or parts
thereof under section fourteen, article eight, chapter sixty-one of this code and, upon conviction, shall be confined in the state
penitentiary a state correctional facility not less than two nor
more than five years.
A person who intentionally withholds information about the
excavation, removal, destruction or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological
site or human skeletal remains, unmarked grave, grave artifact or
grave marker of historical significance is guilty of a
misdemeanor and, upon conviction, shall be fined not more than
one hundred dollars, and may be imprisoned in the county or
regional jail not more than ten days.
(2) No person may offer for sale or exchange any human
skeletal remains, grave artifact or grave marker obtained in
violation of this section.
A person who, either by himself or through an agent, 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, upon conviction, shall be fined not less
than one thousand dollars nor more than five thousand dollars,
and may be imprisoned in the county or regional jail not less than six months nor more than one year.
(3) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under (1) and (2) of
this subsection shall constitute constitutes a separate offense.
(d) Notification of discovery of human skeletal remains in
unmarked locations.
Within forty-eight hours of the discovery of human skeletal
remains, grave artifact or grave marker in an unmarked grave on
any publicly or privately owned property, the person making such
the discovery shall must notify the county sheriff of the
discovery and its location. If the human remains, grave artifact
or grave marker appear to be from an unmarked grave, the sheriff
shall promptly, and prior to any further disturbance or removal
of the remains, notify the director of the historic preservation
section. The director shall cause an on-site inspection of the
disturbance to be made to determine the potential for
archaeological significance of the site: Provided, That when the
discovery is made by an archaeological investigation permitted
under state or federal law, the supervising archaeologist shall
must notify the director of the historic preservation section directly.
If the director of the historic preservation section
determines that the site has no archaeological significance, the
removal, transfer and disposition of the remains shall be are
subject to the provisions of article thirteen, chapter
thirty-seven of this code, and the director shall notify the
circuit court of the county wherein the site is located.
If the director of historic preservation determines that the
site has a potential for archaeological significance, the
director shall 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 a permit for the
archaeological excavation or removal of the remains. If the
director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.
(e) Issuance of permits.
Prior to the issuance of a permit for the disturbance of
human skeletal remains, grave artifacts or grave markers, the
director of historic preservation shall convene and chair an ad
hoc committee to develop permit conditions. The committee shall
be comprised 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 Archaeology,
and the West Virginia Archaeological Society and the West
Virginia Council on American Indian Burial Rights. In the case
of Native American sites, the membership of the committee shall
be comprised of the chair and six or eight members representing
the Council for West Virginia Archaeology, the West Virginia
Archaeological Society, the West Virginia Council on American
Indian Burial Rights
and known or presumed lineal descendants,
preferably with cultural affiliation to tribes that existed in
the geographic area that is now West Virginia.
In the case of a site of less then five acres, which is
owned by an individual or partnership, the ad hoc committee must
be formed within thirty days of application for same by the property owner, must meet within sixty days of such the
application, and must render a decision within ninety days of
such the application.
All such permits shall at a minimum address the following
conditions: (1) The methods by which lineal descendants of the
deceased are notified prior to the disturbance; (2) the
respectful manner in which the remains, artifacts or markers are
to be removed and handled; (3) scientific analysis of the
remains, artifacts or markers and the duration of those studies;
(4) the way in which the remains may be reburied in consultation
with any lineal descendants, when available; (5) methods for the
respectful curation of recovered items; and (6) such other
conditions as the director may deem considers necessary.
Expenses accrued in meeting the permit conditions shall be borne
by the permit applicant, except in cases where the deceased
descendants or sponsors are willing to share or assume the costs.
A permit to disturb human skeletal remains, grave artifacts or
grave markers will be issued only after alternatives to
disturbance and other mitigative measures have been considered.
In addition, a person applying for a permit to excavate or remove human skeletal remains, grave artifacts, grave markers or
any historic or prehistoric features of archaeological
significance may provide to the ad hoc committee information he
or she deems considers appropriate and shall must:
(1) Provide a detailed statement to the director of the
historic preservation section giving the reasons and objectives
for excavation or removal and the benefits expected to be
obtained from the contemplated work;
(2) Provide data and results of any excavation, study or
collection in annual reports to the director of the historic
preservation section and submit a final report to the director
upon completion of the excavation;
(3) Obtain the prior written permission of the owner if the
site of such the proposed excavation is on privately owned land;
and
(4) Provide any additional information the ad hoc committee
deems considers necessary in developing the permit conditions.
Such Permits shall will be issued for a period of two years
and may be renewed at expiration. The permits are not
transferable but other persons who have not been issued a permit may work under the direct supervision of the person holding the
permit. The person or persons to whom a permit was issued must
carry the permit while exercising the privileges granted and must
be present at the site whenever work is being done.
Notwithstanding any other penalties to which a person may be
subject under this section for failing to comply with the terms
and conditions of a permit, the permit of a person who violates
any of the provisions of this subsection shall be revoked.
As permits are issued, the director of the historic
preservation section shall maintain a catalogue of unmarked grave
locations throughout the state.
(f) Property tax exemption for unmarked grave sites.
To serve as an incentive for the protection of unmarked
graves, the owner, having evidence of the presence of unmarked
graves on his or her property, may apply to the director of the
historic preservation section for a determination as to whether
such that is the case. Upon making such a determination in the
affirmative, the director of the historic preservation section
shall provide written certification to the landowner that the
site containing the graves is a cemetery and as such is exempt from property taxation upon presentation of the certification to
the county assessor. The area of the site to receive property
tax exempt status shall be determined by the director of the
historic preservation section. Additionally, a property owner
may establish protective easements for the location of unmarked
graves.
(g) Additional provisions for enforcement; civil penalties;
rewards for information.
(1) The prosecuting attorney of the county in which a
violation of any provision of this section is alleged to have
occurred may be requested by the director of the historic
preservation section to initiate criminal prosecutions or to
seek civil damages, injunctive relief and any other appropriate
relief. The director of the historic preservation section shall
cooperate with the prosecuting attorney in resolving such the
allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for
sale or exchange of historic or prehistoric ruins, burial
grounds, archaeological site, human skeletal remains, unmarked grave, grave artifact or grave marker under the provisions of
subdivisions (1) and (2), subsection (c) of this section shall
are also be liable for civil damages to be assessed by the
prosecuting attorney in consultation with the director of the
historic preservation section.
Civil damages may include:
(i) Forfeiture of any and all equipment used in disturbing
the protected unmarked graves or grave markers;
(ii) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii) Any and all 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 grave markers;
(iv) Any and all costs associated with restoring the land to
its original contour or the grave marker to its original
condition;
(v) Any and all costs associated with reinterment of the
human skeletal remains; and
(vi) Any and all costs associated with the determination and collection of the civil damages.
When civil damages are recovered, the proceeds, less the
costs of the prosecuting attorney associated with the
determination and collection of such damages, shall be deposited
into the endangered historic properties fund and may be expended
by the commissioner of culture and history for archaeological
programs at the state level, including the payment of rewards for
information leading to the arrest and conviction of persons
violating the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(3) The commissioner of culture and history is authorized to
offer and pay rewards of up to one thousand dollars from funds on
deposit in the endangered historic properties fund for
information leading to the arrest and conviction of persons who
violate the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(h) Disposition of remains and artifacts not subject to
reburial.
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 subsection (e) of this section,
are held in trust for the people of West Virginia by the state
and are under the jurisdiction of the director of historic
preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect for the
people of the state under the care of the West Virginia state
museum.
NOTE: The purpose of this bill is to add the West Virginia
Council on American Indian Burial Rights to the committee that
determines permit conditions for the issuance of permits for the
disturbance of human skeletal remains, grave artifacts or grave
markers.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.