STATE OF NEW YORK ________________________________________________________________________ 7256 2017-2018 Regular Sessions IN ASSEMBLY April 12, 2017 ___________ Introduced by M. of A. ENGLEBRIGHT, OTIS, JAFFEE, THIELE, ROSENTHAL, AUBRY, COOK, KEARNS, FINCH, MONTESANO, RAIA -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, GOTTFRIED, LUPARDO, McDONOUGH, ROZIC -- read once and referred to the Committee on Corporations, Authorities and Commissions AN ACT to amend the not-for-profit corporation law and the education law, in relation to the discovery and disposition of human remains and funerary objects; and to amend the parks, recreation and historic preservation law, in relation to requiring certain notice and consul- tation prior to the undertaking of certain projects The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "unmarked burial site protection act". 3 § 2. Legislative findings and declaration. The legislature finds and 4 declares that the sanctity of human burial sites is an intrinsic and 5 paramount value among all cultural and religious traditions which prac- 6 tice the custom of burying the dead. The legislature further finds that 7 there are numerous unmarked burial sites throughout the state, many of 8 which are of great cultural and historical significance to the people of 9 the state, particularly to members of the cultural and religious groups 10 affiliated with them. Such sites are vulnerable to unintentional 11 disturbance in the course of construction and other activities as well 12 as deliberate vandalism and looting. Such disturbance constitutes a 13 severe offense against the descendants of the dead and the beliefs and 14 traditions of the culturally-affiliated groups. 15 The legislature finds and declares that existing laws are inadequate 16 to protect these unmarked burial sites from disturbance, and that New 17 York is one of the very few states which heretofore has provided no 18 express statutory protection for unmarked burial sites. It is therefore 19 declared to be the purpose of this act to ensure that human remains and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03245-01-7

A. 7256 2 1 associated funerary artifacts remain undisturbed to the maximum extent 2 practicable, and are treated with the utmost respect consistent with the 3 wishes of lineal descendants and culturally-affiliated groups. 4 § 3. Section 1503 of the not-for-profit corporation law is amended by 5 adding a new paragraph (c) to read as follows: 6 (c) Except as otherwise provided in paragraph (c) of section fifteen 7 hundred seven and paragraph (m) of section fifteen hundred ten of this 8 article, this article does not apply to a burial site as defined in 9 paragraph (a) of section fifteen hundred eighteen of this article. 10 § 4. The not-for-profit corporation law is amended by adding a new 11 section 1518 to read as follows: 12 § 1518. Discovery and disposition of human remains and funerary objects. 13 (a) Definitions. As used in this section: 14 (1) "Burial site" means any location in which human remains are inter- 15 red, which is not a cemetery subject to provisions of this chapter, the 16 religious corporation law, the general municipal law, the county law, 17 the town law or the village law. 18 (2) "Committee" means the Native American burial site review committee 19 created by paragraph (c) of this section. 20 (3) "Culturally-affiliated group" means any group, including a Native 21 American tribe, whose past or present government, or traditional culture 22 or religion was or is affiliated with human remains or funerary objects 23 which are the subject of this section. Such group shall include a Native 24 American tribe whose aboriginal territory, as defined by the committee, 25 includes the location of a burial site containing Native American human 26 remains or funerary objects. 27 (4) "Forensic anthropologist or bioarchaeologist" means a person qual- 28 ified in the medicolegal or osteological investigation/examination of 29 human skeletal remains. 30 (5) "Funerary objects" means any item or items reasonably believed to 31 have been placed with human remains at the time of burial, including but 32 not limited to burial markers, items of personal adornment, vessels, 33 beads, tools, implements, ceremonial objects and other artifacts. 34 (6) "Human remains" means the remains of any part of the body of a 35 deceased person. 36 (7) "Lineal descendant" means a genealogical descendant established by 37 oral tradition or written record. 38 (8) "Native American tribe" means any Native American tribe, nation or 39 group. 40 (9) "State archaeologist" means the person appointed to such office 41 pursuant to section two hundred thirty-five of the education law. 42 (b) Applicability. This section shall apply to all lands within the 43 state, except for lands located upon any Native American reservation 44 located wholly or partly within the state. 45 (c) Native American burial site review committee. There is hereby 46 established a Native American burial site review committee consisting of 47 the following: one member to be appointed by each of the Native American 48 tribes in the state as the official representatives for the purposes of 49 the Native American Graves Protection and Repatriation Act; the state 50 archaeologist; a forensic anthropologist or bioarchaeologist; the chair 51 of the human remains committee or other designee of the New York 52 Archaeological Council; and one member with expertise in the field of 53 historic preservation appointed by the commissioner of the office of 54 parks, recreation and historic preservation. The committee shall elect a 55 chairperson from among its members. The members who are not public 56 employees shall be reimbursed by the state for their reasonable and

A. 7256 3 1 necessary expenses incurred in the performance of committee functions. 2 It shall be the function of the committee to determine the lineal 3 descendants and/or culturally-affiliated groups for Native American 4 human remains and funerary objects subject to this section, and to 5 provide notice to such descendants and/or groups as provided in this 6 section. The state archaeologist shall prepare, and the committee shall 7 adopt, standard procedures for determining the lineal descendants and 8 culturally-affiliated groups for human remains as required by this 9 section, including acceptable types of proof of such descent and affil- 10 iation. 11 (d) Discovery of burial site; reporting requirements. (1) Any person 12 who in the course of any ground-disturbing activity discovers a burial 13 site, human remains or funerary objects shall immediately cease any 14 further disturbance of such site, remains or objects, and shall imme- 15 diately report such discovery to the coroner or medical examiner in the 16 county in which the remains were discovered. The coroner or medical 17 examiner shall within ninety-six hours determine whether any actions are 18 required pursuant to the provisions of article seventeen-A of the county 19 law. If any such remains appear to the coroner or medical examiner to be 20 more than fifty years old, the coroner or medical examiner shall imme- 21 diately provide notice of the discovery of such remains to the state 22 archaeologist, who shall in turn convey each such notice to the other 23 members of the committee. Any inspection or examination shall be made 24 in situ except as necessary to comply with such article seventeen-A or 25 to determine the age of the remains. 26 (2) The state archaeologist, or such qualified person as may be desig- 27 nated by the state archaeologist, shall, upon receiving notice from a 28 coroner or medical examiner of the discovery of human remains, inspect 29 the site, remains and/or objects which are the subject of such notice, 30 prepare a report thereon and provide a copy of the report to the commit- 31 tee. The report shall be based upon physical examination of the discov- 32 ered burial site, remains and/or objects, and shall contain the state 33 archaeologist's conclusion as to whether such site, remains and/or 34 objects may be of Native American origin. In preparing the report, the 35 state archaeologist may seek and obtain assistance from any employee of 36 the regents, from the committee, and from the office of parks, recre- 37 ation and historic preservation. 38 (e) Determination of and notification to lineal descendant or cultur- 39 ally-affiliated group. (1) If the state archaeologist, the forensic 40 anthropologist or bioarchaeologist, and the committee agree that the 41 burial site does not wholly or partly contain human remains or funerary 42 objects that are of Native American origin, it shall be the responsibil- 43 ity of the state archaeologist to determine, as soon as practicable, 44 whether there is any reasonably ascertainable lineal descendant or 45 culturally-affiliated group with respect to such site, remains or 46 objects and, immediately upon making such determination, to provide 47 notice to such descendants or group of the reported discovery. 48 (2) If the state archaeologist, the forensic anthropologist or bioar- 49 chaeologist, and the committee agree that the burial site wholly or 50 partly contains human remains or funerary objects that may be of Native 51 American origin, it shall be the responsibility of the committee to 52 determine the lineal descendants or culturally-affiliated groups. Such 53 determination shall be made as soon as practicable after the committee 54 receives a report from the state archaeologist concerning the burial 55 site. Immediately upon making such determination, the committee shall

A. 7256 4 1 provide written notification to such descendants or groups of the 2 reported discovery. 3 (3) The committee shall have stewardship of Native American human 4 remains and funerary objects from the time it receives notification from 5 the state archaeologist pursuant to paragraph (d) of this section until 6 the lineal descendants and/or culturally-affiliated groups receive 7 notification from the committee pursuant to this paragraph, at which 8 time such lineal descendants and/or culturally-affiliated groups shall 9 have the right of possession and stewardship of such remains and 10 objects. Upon notification to such lineal descendants or culturally-af- 11 filiated groups pursuant to this paragraph, ownership of and responsi- 12 bility for the human remains and funerary objects shall vest exclusively 13 in such descendants or groups, which shall have exclusive authority to 14 determine their disposition. 15 (4) The committee shall establish procedures for making the determi- 16 nation as to whether discovered human remains or funerary objects may be 17 of Native American origin when the state archaeologist and the committee 18 can not come to agreement. 19 (5) Where a burial site contains both Native American and non-Native 20 American human remains or funerary objects, the committee shall be 21 responsible for the Native American burials at the site, and the state 22 archaeologist shall be responsible for all other burials at the site. 23 (f) Disposition of remains and objects. (1) Within ten days after 24 notification by the state archaeologist to a lineal descendant or 25 culturally-affiliated group, other than a Native American tribe of the 26 discovery of a burial site, the descendant or group shall advise the 27 state archaeologist as to the preferred disposition of the discovered 28 remains or objects. The state archaeologist shall to the maximum extent 29 practicable facilitate such preferred disposition, which may consist of 30 reinterment and protection of the burial site or disinterment and 31 reburial or other disposition as determined. 32 (2) Within ten days after notification by the committee to a lineal 33 descendant or culturally-affiliated group of the discovery of a burial 34 site, the descendant or group shall advise the committee in writing as 35 to the preferred disposition of the discovered remains or objects. The 36 committee shall to the maximum extent practicable facilitate such 37 preferred disposition, which may consist of reinterment and protection 38 of the burial site or disinterment and reburial or other disposition as 39 determined. 40 (g) Disposition of human remains and funerary objects, generally. (1) 41 Except as necessary to carry out the purposes of this section, burial 42 sites, human remains and funerary objects shall remain undisturbed after 43 discovery. 44 (2) Unless express contrary direction is given by the committee, a 45 culturally-affiliated group or lineal descendant, the presumed disposi- 46 tion of human remains and funerary objects shall be that they remain 47 undisturbed where buried, except as provided in subparagraphs three and 48 four of this paragraph. 49 (3) Notwithstanding subparagraph two of this paragraph, where there is 50 no practicable means of modifying the activity which led to the discov- 51 ery of a burial site, human remains or funerary objects in order to 52 avoid disturbing such site, remains or objects, the remains or objects 53 shall be removed and disposition be determined in accordance with the 54 directions of the committee, culturally-affiliated group, or lineal 55 descendant.

A. 7256 5 1 (4) Notwithstanding subparagraph two of this paragraph, where the 2 state archaeologist and the committee have been unable to identify the 3 lineal descendant or culturally-affiliated group for human remains or 4 funerary objects, the state archaeologist shall determine the appropri- 5 ate disposition of such remains or objects. 6 (h) Penalties. (1) Any person who fails to report the discovery of a 7 burial site, human remains or funerary objects as required by paragraph 8 (d) of this section shall be guilty of a class B misdemeanor, as defined 9 in the penal law. 10 (2) Any person other than the state archaeologist, or a person or 11 group with a right of possession or stewardship pursuant to this 12 section, or a designee thereof, who intentionally removes human remains 13 or funerary objects from a burial site shall be guilty of a class A 14 misdemeanor, as defined in the penal law. 15 (3) Any person who defaces or destroys a burial site, human remains or 16 funerary objects, or who possesses human remains or funerary objects 17 with intent to sell such remains or artifacts, or who sells or attempts 18 to sell human remains or funerary objects, shall be guilty of a class E 19 felony, as defined in the penal law. 20 (i) Enforcement. The attorney general or any aggrieved party, includ- 21 ing the committee and any lineal descendant or culturally-affiliated 22 group, may bring an action in supreme court in the judicial district 23 where the remains or objects covered by this section are located to 24 enjoin violations or threatened violations of this section, and to 25 recover such remains or objects, and in the case of an aggrieved party, 26 compensatory and punitive damages for such violation. 27 § 5. Section 235 of the education law is amended to read as follows: 28 § 235. State science service. There shall be maintained in the 29 university a science service which shall be known as the state science 30 service and the state geologist, paleontologist, botanist [and], ento- 31 mologist, and archaeologist shall constitute its staff together with 32 such other scientists as the regents may employ or who are now employed 33 by them. This service is empowered and directed to make available its 34 services to all the departments of the state, and the residents of the 35 state under such rules and regulations as the regents may prescribe and 36 is empowered to engage in such scientific research as directed by law or 37 by the regents and shall cooperate with scientific units or agencies of 38 other states, the federal government, educational institutions and 39 industry in the discovery, analysis and dissemination of scientific 40 information. The director of the state museum shall also be the direc- 41 tor and head of the state science service and the staff of the service 42 shall be members of the staff of the state museum. 43 § 6. Section 14.09 of the parks, recreation and historic preservation 44 law is amended by adding a new subdivision 3 to read as follows: 45 3. Prior to the preparation or approval of the final design or plan of 46 any project undertaken by a state agency, or prior to the funding of any 47 project by a state agency, or prior to an action of approval or entitle- 48 ment of any private project by a state agency, the agency's preservation 49 officer shall perform a diligent inquiry to determine whether any aspect 50 of the project may or will effect a disturbance of a known or suspected 51 burial site for which a culturally-affiliated Native American tribe, 52 group or lineal descendent can be identified. The terms "burial site", 53 "culturally-affiliated" and "Native American tribe" shall have the same 54 meanings as ascribed to such terms in paragraph (a) of section fifteen 55 hundred eighteen of the not-for-profit corporation law. In such event 56 such officer shall notify such Native American tribe and the Native

A. 7256 6 1 American burial site review committee established by section fifteen 2 hundred eighteen of the not-for-profit corporation law and consult with 3 the tribe and such committee to determine how to avoid such disturbance. 4 § 7. This act shall take effect on the first of January next succeed- 5 ing the date on which it shall have become a law.