No. 30912 (Amendment): R230-1. Native American Grave Protection and Repatriation

DAR File No.: 30912
Filed: 01/15/2008, 10:57
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is amended subsequent to legislative statute change to Sections 9-8-309, 9-9-403, and 9-9-405 regarding private lands and ancient Native American human remains repatriation, done during the 2007 session, S.B. 204. (DAR NOTE: S.B. 204 (2007) is found at Chapter 231, Laws of Utah 2007, and was effective 04/30/2007.)

Summary of the rule or change:

The process currently outlined in Rule R230-1 for the repatriation and care of ancient Native American human remains exceeds its authority as outlined in the Native American Grave Protection and Reparation Act (NAGPRA) at Section 9-9-403. This amendment seeks to refine the repatriation process and remove burdens previously held by private landowners.

State statutory or constitutional authorization for this rule:

Sections 9-8-309, 9-9-104, 9-9-403, and 9-9-405

Anticipated cost or savings to:

the state budget:

There will be no additional cost to the state budget as a result of these amendments as the changes only clarify responsibilities of state agencies, not add to them.

local governments:

There will be no additional cost to local governments as the rule amendments clarify the repatriation process ensuring local governments do not carry a burden of cost for the repatriation processing of human remains.

small businesses and persons other than businesses:

There will be no additional cost to small businesses and persons other than businesses, notably private landowners, as these rule amendments ensure private landowners and small businesses do not bear the burden of costs associated with discovery, care, and repatriation processing of ancient Native American human remains.

Compliance costs for affected persons:

These amendments clarify agency responsibilities regarding ancient Native American human remains, but add no duties, therefore incurring no extra cost for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

Following the legislative change for Sections 9-8-409, 9-9-403, and 9-9-405 in the 2007 session, the legislature appropriated funds for the increased responsibilities state agencies incurred to remove the burden of care and process for ancient Native American human remains. The amendments to Rule R230-1 provide clarification to the repatriation process and the specific responsibilities of each agency. As the amendments provide clarification only, there is no fiscal impact upon business. Palmer DePaulis, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Community and Culture
Indian Affairs
324 S STATE ST
SALT LAKE CITY UT 84111-5223

Direct questions regarding this rule to:

Rebecca Nelson at the above address, by phone at 801-538-8767, by FAX at 801-538-8888, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/03/2008

This rule may become effective on:

03/10/2008

Authorized by:

Palmer DePaulis, Executive Director

RULE TEXT

R230. Community and Culture, Indian Affairs.

R230-1. Native American Grave Protection and Repatriation.

R230-1-1. General Policy Statement Regarding Native American Burials.

1. Native American burials are regarded as spiritual and sacred ceremonies where the deceased is prepared for their journey into the next dimension of life. Once the deceased, the grave and the funerary objects are blessed, consecrated and dedicated to the care and keeping of the creator the burial site is then considered "holy ground," never to be disturbed.

2. Native American burial sites discovered on state landsor non-federal lands must not be disturbed except as allowed by this rule and other applicable law. Any disturbances that are allowed should be conducted in a manner that minimizes desecration of the site.

 

R230-1-2. Purpose.

1. This rule provides procedures designed to preserve the sacred nature of Native American burials by protecting Native American burial sites and insuring that the final disposition of unidentified Native American remains, discovered on state lands or non-federal lands, shall be in keeping with that sacred nature.

 

R230-1-3. Authority.

1. This rule is authorized under Section 9-9-403 and Section 9-9-405, the Native American Grave Protection and Repatriation Act and Section 9-9-104(2)(c).

 

R230-1-4. Definitions.

1. Terms used in this rule are defined in Section 9-9-402.

2. In addition, as used in this rule "agency" means the state agency having primary management authority over the land or state repository where Native American remains are found.

3. "Committee" means the Native American Remains Review Committee.

4. "Director" means the Director of the Division of Indian Affairs.

5. "Division" means the Division of Indian Affairs.

6. "Scientific testing" means physical or chemical tests such as radiocarbon dating and DNA analysis, performed by a qualified technician to determine the age, ethnicity or any other pertinent information.

7. "Lineal descendant" means the genealogical descendant established by oral or written record or other evidence.

8. "Cultural affiliation" means a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe and an identifiable earlier group.

9. "State land" as defined by 9-9-402.

10. "Nonfederal land" as defined by 9-9-402.

 

R230-1-5. Scope and Applicability.

1. This rule applies to all Native American remains found on state lands or non-federal lands.

 

[R230-1-6. Duties Upon Discovery of Remains.

1. Remains are to be treated at all times with dignity and respect. Any person who discovers a dead body shall not damage the body and shall not disinter or remove the body without proper authority. Any person who discovers a dead body shall report the discovery to a local law enforcement agency. A violation of these rules may constitute a criminal offense and may subject the offender to criminal sanctions under Section 76-9-704.

2. Any person or entity who discovers Native American remains must cease all activity which might disturb the remains and take reasonable steps to protect the discovered remains. Such steps may include, but are not limited to, restoring the site to its original condition or otherwise securing and protecting the site to prevent any possible desecration or destruction.

3. If it is unclear whether the remains are of Native American origin upon a cursory examination, the agency must take reasonable steps to determine the ethnicity of the remains.

a. The agency may further investigate the ethnicity by retaining the services of a qualified archeologist to conduct a physical examination of the remains.

b. If a physical examination of the remains is not sufficient to determine ethnicity, the agency may seek an excavation permit by the Division of State History pursuant to Section 9-8-305 in order to conduct limited excavation to search for associated funerary objects.

c. If no other method of investigation is sufficient to determine ethnicity, the agency may allow limited scientific testing on the remains, by the least intrusive and least destructive means possible to determine ethnicity.

4. Any person or entity who discovers Native American remains on state land must promptly notify the Division by telephone. As soon as is reasonably possible, but not later than five business days, written notification of the discovery must also be provided.

a. Written notification shall include a detailed description of what was found, the place where the remains were found, the conditions under which the person discovered the remains and any other facts that may help identify the remains.

b. Written notification shall be provided to:

i. the state agency having management authority over the land where the remains were discovered;

ii. the Division of Indian Affairs; and

iii. the Division of State History.

 

R230-1-7. Resumption of Activity.

1. The activity in which the remains were discovered or any further excavation may not resume until a plan for the preservation of the remains has been adopted by the Director, in consultation with the entity who discovered the remains, the agency, and a designated representative from the Division of State History.

a. Preference shall be given to a plan which provides for restoration of the site to its original condition and discontinuing all activity in the area to limit any further disturbance of the site.

b. If it is not feasible to discontinue the activity, excavation may continue pursuant to a permit issued under Section 9-8-305 and in accordance with a plan designed to minimize any further desecration of the remains.

2. The consultation shall take place as soon as reasonably possible after the Director and the agency have been notified of the discovery. The authority to determine the disposition and treatment of remains shall not be exercised in a manner that would unreasonably delay completion of a construction project or any other project.

3. Activity may not resume until the Director has been given reasonable notice of when the planned excavation shall take place and the Director or his designee has the opportunity to be present at the excavation.

a. The cost of the excavation shall be borne by the party requesting the excavation.

b. If the remains are excavated and ownership has not yet been determined, the Division may take temporary possession of the remains pending a final determination of ownership.

 

R230-1-8. Notification of Possible Owners of the Remains.

1. Once the Division has been notified of the discovery of Native American remains, the Director shall notify any known or possible lineal descendants.

2. If no lineal descendants can be ascertained, the Division shall notify all Indian tribes and Navajo tribal chapters located in Utah and any other interested parties who have requested notification and have designated a contact person.

3. Notice to the tribes shall include a request that the tribes take reasonable steps to notify their members of the discovery and of the process and time limits for filing a claim by posting the notice in a public place and/or by including it in tribal news media.

4. Any interested party may request notification of the discovery of Native American remains by sending a letter to the Division, specifying a contact person to be notified in the event of a discovery and an address where they can be reached.

 

R230-1-9. Claims of Ownership.

1. Lineal descendants or Indian tribes may assert a claim of ownership for the remains by notifying the Division of their claim within sixty days from the date that notification is sent out by the Division.

 

R230-1-10. Determination of Ownership.

1. When only one claimant has asserted a claim of ownership, the Committee shall request a written petition from the claimant, substantiating the claim. If the claimant makes a substantial showing of lineal descendence or cultural affiliation with the remains, the Committee may grant ownership or control of the remains to that claimant.

2. When two or more claims have been submitted, the determination of ownership shall be made in an informal proceeding which shall comply with Section 63-46b-0.5 et seq., the Utah Administrative Procedures Act.

 

R230-1-11. Dispute Resolution of Competing Claims.

1. After the expiration of time for claims to be submitted, the Committee shall schedule a time to hear the matter and shall notify the claimants.

2. The Committee shall conduct an informal hearing at which the competing claimants shall be allowed to testify, present evidence and comment on issues concerning their claim.

a. Lineal descendence or cultural affiliation may be established by genealogical records, archeological records, oral or written history, scientific analysis, relevant Tribal records, associated funerary objects and any other supporting material.

b. If the evidence presented at the hearing is not sufficient to resolve the disputed claims or enable the Committee to make a recommendation of ownership, upon a majority vote of the Committee, scientific testing may be permitted to determine ethnicity.

3. The Committee shall attempt to facilitate a settlement of the dispute and shall grant ownership to the claimant that has shown the closest lineal descendence, or if none, to the tribe that has shown the strongest genetic or cultural relationship with the remains by a preponderance of the evidence.

 

R230-1-12. Adjudication of Disputed Claims.

1. If competing claimants are unable to resolve their dispute at the informal hearing, the Committee shall issue findings relating to the identity of or the cultural affiliation of the remains and a decision of disposition.

2. A copy of the Committee's findings and decision shall be mailed to each of the claimants along with a notice explaining the procedure for seeking an appeal of the Committee's decision in the District Court.

3. If none of the claimants have filed an appeal in the District Court within 30 days, the Committee's decision shall be binding upon the parties.

 

R230-1-13. Disposition of Remains Once Ownership has been Determined.

1. If the remains have not been excavated, the owner of the remains may excavate the remains pursuant to Section 76-9-704, for the purpose of repatriation elsewhere or may leave the remains in place, subject to agreement by the agency.

2. If the remains have already been excavated pursuant to R230-1-6, the owner may then take possession of the remains from the Division or the agency that has temporary possession of the remains.

 

R230-1-14. Disposition of Unclaimed Remains.

1. When the plan that is adopted for preservation of the unclaimed remains directs that the activity be re-routed and the site be restored, the remains may be permanently left in place upon final approval by the agency and in agreement with the Division.

2. When no claim of ownership has been made for discovered remains and the remains are excavated pursuant to R230-1-6, they shall be reinterred in the Indian Burial Repository.

 

R230-1-15. Scientific Investigation of Unclaimed Remains.

1. No scientific investigation beyond that allowed in R230-1-6 shall be conducted on unclaimed remains except upon written permission granted by the Committee.]

R230-1-6. Ascertaining Lineal Descendents and Cultural Affiliation.

1. Each agency shall compile an inventory of acquired ancient human remains and funerary objects, and report updates of the inventory to the Committee biannually until such time as the remains have been determined to be unclaimed, unaffiliated, or placed in the burial vault.

a. The inventory shall identify the lineal descent, cultural affiliation, and geographic location of the remains to the extent possible and upon completion, the inventory shall be sent to the Director to disseminate to the Committee, Indian tribes, and all interested parties.

2. The agency shall have one year from date of discovery to complete research for an assessment of lineal descent or cultural affiliation.

a. The documentation for the inventory can consist of existing agency records, relevant studies, other pertinent data for determining lineal descent, the cultural affiliation, geographical origin, and basic facts surrounding the acquisition of ancient human remains.

b. Evidence of a lineal descendant or cultural affiliation to ancient human remains shall be established by using the following types of evidence: kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, geographical, or other relevant information or expert opinion.

3. Lineal descent and cultural affiliation assessments shall be established by a preponderance of the evidence. Agencies do not have to establish lineal descent or cultural affiliation with scientific certainty.

4. If an agency has made a good faith effort to consult and identify the remains, but has been unable to complete the process within the one year time frame, the agency may appeal to the Committee for an extension. The Committee may grant an extension upon findings of good faith effort.

 

R230-1-7. Notification of Possible Owners of the Remains.

1. Once the Division has been notified of the discovery of Native American remains and a lineal descendent ascertained by the Agency, the Director shall notify any known or possible lineal descendants, Indian tribes in Utah, and all other interested parties within 30 days.

2. If no lineal descendants can be ascertained, and if the cultural affiliation of the remains has been determined by the Agency, the Director shall notify within 30 days all Indian tribes in Utah and any other interested parties who have requested notification and have designated a contact person.

3. If no lineal descendent or cultural affiliation to any tribe can be ascertained, or the geographic location of discovery of the remains is unknown, the Director shall notify all Indian tribes in Utah and any other interested parties who have requested notification and have designated a contact person, of known information regarding the remains.

4. Notice to the tribes shall include a request that the tribes take reasonable steps to notify their members of the discovery and of the process and time limits for filing an intent to claim by posting the notice in a public place and/or by including it in tribal news media.

5. Any interested party may request notification of the discovery and repatriation process of Native American remains by sending a letter to the Division, specifying a contact person to be notified in the event of a discovery and an address where they can be reached.

 

R230-1-8. Claims of Ownership.

1. Lineal descendants or Indian tribes may assert a claim of ownership for the remains by notifying the Division of their intent to claim within forty-five days from the date that notification is sent out by the Division. Lineal descendants or Indian tribes will have sixty days from the Division's receipt of the Intent to Claim notice to provide substantiating documentation.

 

R230-1-9. Determination of Ownership.

1. When only one claimant has asserted a claim of ownership with an intent to claim notice regarding a claim of lineal descent or cultural affiliation, the Director shall request a written petition from the claimant, substantiating the claim. The claimant will have 60 days from the Divisions receipt of the intent to claim notice, to deliver substantiating documents. Once the Division receives the substantiating documents and/or the 60 days has expired, the Director shall notify the Agency of all claims with substantiating documents, or lack of claims, within 10 business days. If the claimant makes a substantial showing of lineal descent or cultural affiliation the Agency will make a determination of lineal descent or cultural affiliation and grant ownership of the remains to that claimant.

2. When two or more claimants have asserted claims of ownership with intent to claim notices for lineal descent or cultural affiliation, the Director shall request a written petition from the claimants, substantiating the claims. The claimants will have 60 days from the Division's receipt of the intent to claim notices to deliver substantiating documents. Once the Division receives the substantiating documents and/or the 60 days has expired, the Director shall notify the Agency of all claims with substantiating documents, or lack of claims, within 10 business days. If the agency determines both claimants have made a substantial showing of lineal descent or cultural affiliation, the Director and Committee shall facilitate a resolution of the competing claims. If the facilitation of resolution between claimants does not result in resolution, determination of ownership shall be made by the Agency in consultation with the Director and Committee based upon a preponderance of the evidence in an informal proceeding which shall comply with Section 63-46b-0.5 et seq., the Utah Administrative Procedures Act.

 

R230-1-10. Procedure for the Resolution of Claims for Lineal Descent or Cultural Affiliation.

1. After the expiration of time for the substantiating documents of claims regarding lineal descent or cultural affiliation to be submitted has occurred, and the agency has determined all claims have made a substantial showing, the Director, in consultation with the Agency and Committee, shall schedule a time within 60 days to facilitate the resolution of the competing claims and shall notify the claimants of such date.

2. In an informal proceeding, the Director and Committee shall meet with competing claimants and facilitate the resolution between claimants if at all possible.

3. If the facilitation of resolution of the competing claims does not result in resolution, the Agency shall conduct an informal hearing at which the competing claimants shall be allowed to testify, present evidence, and comment on issues concerning their claim.

a. Lineal descent or cultural affiliation may be established by genealogical records, archeological records, oral or written history, oral tradition, scientific analysis, relevant Tribal records, associated funerary objects and any other supporting material.

4. The Agency shall grant ownership to the claimant that has shown the closest lineal descent, or if none, to the tribe that has shown the strongest genetic or cultural relationship with the remains, by a preponderance of the evidence.

 

R230-1-11. Adjudication of Disputed Claims.

1. If any party is dissatisfied with the Agency's or Director's decision, the claimants may appeal the decision to the Committee. The Committee shall review the decision and issue findings relating to the identity of, the cultural affiliation of the remains, or an aboriginal land use determination, which shall be used in accordance with 9-9-403(6).

2. A copy of the Committee's findings and the Director's or Agency's decision shall be mailed to each of the claimants and interested parties who have designated a contact person along with a notice explaining the procedure for seeking an appeal of the Director's or Agency's decision in the District Court where the Agency that has temporary possession of the remains pending this process, is located.

3. If no party has filed an appeal in the District Court within 30 days, the Director's or Agency's decision shall be binding upon the parties.

 

R230-1-12. Disposition of Unidentified and Unclaimed Remains.

1. When lineal descent and cultural affiliation cannot be determined, and the Division has notified all Indian tribes in Utah and any other interested parties who have requested notification and have designated a contact person, and has received no intent to claim notices within 30 days, then the Director shall, upon recommendation of the agency and in consultation with the Committee, coordinate at least every six months, the placement of the ancient human remains in the Indian burial vault or other designated cemetery until such time as further information regarding the identity and owner of the remains can be obtained.

2. If the remains have not been excavated and have gone through the determination of ownership and control process and are unclaimed, the remains may be permanently left in place upon final approval by the agency and in consultation with the Director.

3. If the remains have been excavated and have gone through the determination of ownership process and are unclaimed, the remains shall be re-interred in the Indian Burial Repository or other designated cemeteries throughout the state.

 

R230-1-13. Re-interment of Ancient Human Remains.

1. Annually, or as needed, the Director shall present to the Committee an inventory of remains that have completed the process of repatriation and have been determined to be without a lineal descendant or cultural affiliation or unclaimed, that reside in the burial vault. The Director shall include a plan for interment regarding the final resting place of the remains in either the burial vault or designated cemetery, and with approval of the Committee, the Director shall coordinate the interment of the remains.

 

R230-1-14. Role and Responsibilities of Committee.

1. The Committee shall meet quarterly or as deemed necessary to monitor the identification process described in R230-1-10 conducted by the Agency for lineal descent or cultural affiliation claims per 9-9-405(3).

 

R230-1-15. Disposition of Remains Once Ownership has been Determined.

1. If the remains have not been excavated, the owner of the remains may excavate the remains pursuant to Section 76-9-704, for the purpose of repatriation elsewhere or may leave the remains in place, subject to agreement by the agency or non-federal agency.

2. If the remains have already been excavated pursuant to R212-4, the owner or person or tribe in control of the remains may then take possession of the remains from the agency that has temporary possession of the remains.

 

R230-1-16. Scientific Investigation of Remains.

1. No scientific investigation beyond that allowed in 9-9-4 shall be conducted on remains except upon written permission granted by the Director in consultation with the Committee.

2. If the ownership of the remains has not been determined, and further information regarding the identity and owner of remains becomes available, the agency or other interested parties may petition the Committee to recommend removal of the remains from the Indian burial vault or designated cemetery for testing.

a. The agency will provide to the Committee and Director a report specifying the nature and duration of the testing and the Committee will determine per majority vote whether to grant the removal request.

 

R230-1-17. Savings Provision.

1. Nothing in these Rules shall prevent an Indian tribe from making a claim based upon aboriginal land which the authority to decide validity and sufficiency of claims shall rest with the Director.

 

KEY: Indian affairs, state lands, Native American remains

Date of Enactment or Last Substantive Amendment: [February 7, 1996]2008

Notice of Continuation: January 31, 2006

Authorizing, and Implemented or Interpreted Law: 9-9-104; 9-9-403; 9-9-405