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

DAR File No.: 30912
Filed: 05/15/2008, 04:56
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Received public comment that added substantively to the original proposed amendment to Rule R230-1 amendments regarding the implementation and process of the repatriation of ancient American Indian human remains. Therefore, this change in proposed rule is filed.

Summary of the rule or change:

Clarification was made to the proposed responsibilities of state agencies regarding the determination of lineal descent, cultural affiliation, and aboriginal land claims of ancient American Indian human remains. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the February 1, 2008, issue of the Utah State Bulletin, on page 12. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget due to these proposed changes beyond those described in the original amendment.

local governments:

There is no anticipated cost or savings to local governments due to these proposed changes beyond those described in the original amendment.

small businesses and persons other than businesses:

There is no anticipated cost of savings to small businesses and any other person due to these proposed changes beyond those described in the original amendment.

Compliance costs for affected persons:

There is no anticipated compliance cost for any affected person due to these proposed changes beyond those described in the original amendment.

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

There is no anticipated fiscal impact upon businesses due to these proposed changes beyond those described in the original amendment. 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:

07/01/2008

This rule may become effective on:

07/11/2008

Authorized by:

Forrest S Cuch, 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]sacred ground[,]"[ never to be disturbed].

2. Native American burial sites discovered on state lands or 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.

 

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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, including museums, 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.

 

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

1. Each agency, in consultation with Antiquities Section, Utah Division of State History, 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.

b. The inventory of lineal descent and cultural affiliation shall be completed in consultation with appropriate tribes and tribal government representatives, which consultation shall be coordinated and facilitated by the Division.

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.

 

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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.]1. If, following the conclusion of the process to determine ownership of human remains using lineal descent and cultural affiliation, an owner cannot be identified by the responsible agency, tribes may submit claims based on aboriginal land to the Division. The Director shall make a determination of ownership based upon findings of the Committee and in consultation with the landowner.

 

KEY: Indian affairs, state lands, Native American remains

Date of Enactment or Last Substantive Amendment: 2008

Notice of Continuation: January 31, 2006

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