2023 New York Laws › EXC - Executive › Article 7 - Miscellaneous Provisions › 171 - Discovery and Disposition of Human Remains and Funerary Objects.

§ 171. Discovery   and  disposition  of  human  remains  and  funerary
objects. 1. Definitions. As used in this section:
(a) "Burial site" means  any  location  in  which  human  remains  are
interred,  which  is  not  a  cemetery  subject  to  provisions  of  the
not-for-profit corporation law,  the  religious  corporations  law,  the
general municipal law, the county law, the town law or the village law.
(b) "Committee" means the Native American burial site review committee
created by subdivision three of this section.
(c)  "Culturally-affiliated group" means any group, including a Native
American  Nation  or  tribe,  whose  past  or  present  government,   or
traditional culture or religion, was or is affiliated with human remains
or funerary objects which are the subject of this section.
(d)  "Forensic  anthropologist  or  bioarchaeologist"  means  a person
qualified in the medicolegal or  osteological  investigation/examination
of human skeletal remains.
(e)  "Funerary objects" means any item or items reasonably believed to
have been placed with human remains at the time of burial, including but
not limited to burial markers, items  of  personal  adornment,  vessels,
beads, tools, implements, ceremonial objects and other artifacts.
(f)  "Human  remains"  means  the remains of any part of the body of a
deceased person, excluding teeth.
(g) "Lineal descendant" means a genealogical descendant established by
oral tradition, traditional Indigenous knowledge, or written record.
(h) "Native American Nation or tribe" means any Native American tribe,
nation or group.
(i) "State archaeologist" means the person appointed  to  such  office
pursuant to section two hundred thirty-five of the education law.
2. Applicability. (a) This section shall apply to all lands within the
state  except  for  lands  located upon any Native American territory or
reservation located wholly or partly within the state.
(b) Subdivisions three, four, five, six, and  seven  of  this  section
shall  not  apply  to  any  project  that  has been reviewed pursuant to
section 14.09 of the parks, recreation, and historic preservation law or
to state participation in any review conducted pursuant to  section  106
of  the  National  Historic  Preservation  Act. If any human remains are
discovered during the project, the applicant  shall  immediately  notify
the state archaeologist.
3.  Native  American burial site review committee. (a) There is hereby
established a Native American burial site review committee consisting of
the following:
(i) one member to be appointed by each of the Native American  Nations
or tribes recognized by the state;
(ii) the state archaeologist;
(iii)  a  forensic anthropologist or bioarchaeologist appointed by the
executive director of the New York state museum;
(iv) the chair of the human remains committee or other designee of the
New York Archaeological Council; and
(v) one member with expertise in the field  of  historic  preservation
appointed  by  the  commissioner  of the office of parks, recreation and
historic preservation.
(b) The committee shall elect a chairperson from  among  its  members.
The  members  who  are  not  public employees shall be reimbursed by the
state  for  their  reasonable,  necessary  expenses  incurred   in   the
performance  of  committee functions. Three-fifths of the members of the
committee shall constitute  a  quorum  for  the  purpose  of  conducting
business.  A majority vote of all members who have been appointed or who
are serving ex-officio shall be necessary for action. Any vacancy  shall
be filled in the same manner as the original appointment.
(c)  It shall be the function of the committee to determine the lineal
descendants and/or  culturally-affiliated  groups  for  Native  American
human  remains  and  funerary  objects  subject  to this section, and to
provide notice to such descendants and/or groups  as  provided  in  this
section.  The state archaeologist shall prepare, and the committee shall
adopt, standard procedures for determining the  lineal  descendants  and
culturally-affiliated  groups  for  human  remains  as  required by this
section, including  acceptable  types  of  proof  of  such  descent  and
affiliation. Such procedures shall include dispute resolution methods to
resolve disagreements among the committee members.
4.  Discovery  of  burial site; reporting requirements. (a) Any person
who in the course of any ground-disturbing activity discovers  a  burial
site,  human  remains  or  funerary  objects shall immediately cease any
further  disturbance  of  such  site,  remains  or  objects,  and  shall
immediately  report such discovery to the coroner or medical examiner in
the county in which the remains were discovered. The coroner or  medical
examiner  shall,  within ninety-six hours, determine whether any actions
are required pursuant to the provisions of article  seventeen-A  of  the
county  law.  If  any  such  remains  appear  to  the coroner or medical
examiner to be more  than  fifty  years  old,  the  coroner  or  medical
examiner  shall  immediately  provide  notice  of  the discovery of such
remains to the state archaeologist, who shall in turn convey such notice
to the other members of the committee. If no action  is  required  under
article  seventeen-A  of  the  county  law,  or  once  such  actions are
undertaken and no further action is required,  the  state  archaeologist
and  the  committee  may commence their inspection or examination of the
remains or objects. Any inspection or examination shall be made in  situ
except  as  necessary  to  comply  with  such  article seventeen-A, this
section, or to determine the age of the remains. The state archaeologist
and the committee may use ground penetrating radar  or  other  pertinent
technology  or equipment on any portion of the project site that has yet
to be disturbed to determine if  any  other  remains  exist  within  the
project site.
(b)   The   state  archaeologist,  or  a  registered  archeologist  or
registered professional archeologist as may be designated by  the  state
archaeologist,  shall,  upon  receiving notice from a coroner or medical
examiner of the discovery of human remains, inspect  the  site,  remains
and/or  objects which are the subject of such notice. Within ten days of
receiving such notice, the state archaeologist shall  prepare  a  report
thereon  and  provide  a  copy of the report to the committee and to the
property owner. The report shall be based upon physical  examination  of
the  discovered  burial  site, remains and/or objects, and shall contain
the state archaeologist's conclusion as to whether  such  site,  remains
and/or  objects may be of Native American origin. In the event the state
archaeologist determines there is  a  reasonable  possibility  the  site
contains  multiple  remains,  an  additional  period  of ten days may be
provided for assessment by the state archaeologist in consultation  with
the culturally-affiliated group to determine the parameters of the site.
In  preparing  the  report,  the state archaeologist may seek and obtain
assistance from any employee of the regents,  from  the  committee,  and
from the office of parks, recreation and historic preservation.
(c)  The  committee  may recommend to the office of parks, recreation,
and historic preservation that the site should be designated as a  place
of historic interest under section twelve-a of the Indian law.
5.   Determination  of  and  notification  to  lineal  descendants  or
culturally-affiliated  groups.  (a)  If  the  state  archaeologist,  the
forensic  anthropologist  or  bioarchaeologist,  and the committee agree
that the burial site does not wholly or partly contain human remains  or

funerary  objects  that  are  of Native American origin, it shall be the
responsibility of the state  archaeologist  to  determine,  as  soon  as
practicable,  whether  there  are  any  reasonably  ascertainable lineal
descendants  or  culturally-affiliated groups with respect to such site,
remains or objects and, immediately upon making such  determination,  to
provide notice to such descendants or groups of the reported discovery.
(b)  If  the  state  archaeologist,  the  forensic  anthropologist  or
bioarchaeologist, and the committee agree that the burial site wholly or
partly contains human remains or funerary objects that may be of  Native
American  origin,  it  shall  be  the responsibility of the committee to
determine the lineal descendants or culturally-affiliated  groups.  Such
determination  shall  be made as soon as practicable after the committee
receives a report from the state  archaeologist  concerning  the  burial
site.  Immediately  upon  making such determination, the committee shall
provide notification to such  descendants  or  groups  of  the  reported
discovery.
(c)  The  committee  shall  have  stewardship of Native American human
remains and funerary objects from the time it receives notification from
the state archaeologist pursuant to subdivision  four  of  this  section
until the lineal descendants and/or culturally-affiliated groups receive
notification  from  the committee pursuant to this subdivision, at which
time such lineal descendants and/or culturally-affiliated  groups  shall
have  the  right  of  possession  and  stewardship  of  such remains and
objects.   Upon   notification   to   such   lineal    descendants    or
culturally-affiliated  groups pursuant to this subdivision, ownership of
and responsibility for the human remains and funerary objects shall vest
exclusively in such descendants or groups, which shall have authority to
determine their disposition subject to the provisions of this section.
(d) The state  archaeologist  shall  have  stewardship  of  non-Native
American  human  remains  and  funerary  objects from the time he or she
receives notification from the coroner or medical examiner  pursuant  to
subdivision  four  of  this  section until the lineal descendants and/or
culturally-affiliated  groups  receive  notification  from   the   state
archaeologist  pursuant  to  this  paragraph,  at which time such lineal
descendants and/or culturally-affiliated groups shall have the right  of
possession   and   stewardship   of   such  remains  and  objects.  Upon
notification to such lineal descendants or culturally-affiliated  groups
pursuant  to  this  subdivision, ownership of and responsibility for the
human remains and  funerary  objects  shall  vest  exclusively  in  such
descendants  or  groups,  which  shall have authority to determine their
disposition subject to the provisions of this section.
(e) Where a burial site contains both Native American  and  non-Native
American  human  remains  or  funerary  objects,  the committee shall be
responsible for the Native American burials at the site, and  the  state
archaeologist  shall  be  responsible for all other burials at the site.
Once stewardship of each is determined, the  procedures  established  in
paragraphs (c) and (d) of this subdivision shall apply.
6.  Disposition  of  remains  and  objects.  (a) Within ten days after
receiving  notification  from  the   state   archaeologist   to   lineal
descendants  or  a  culturally-affiliated  group,  other  than  a Native
American Nation or tribe,  of  the  discovery  of  a  burial  site,  the
descendants  or group shall advise the state archaeologist in writing as
to the preferred disposition of the discovered remains or objects, which
may include a request to protect the burial site and  keep  the  remains
interred  where  they  were found. The state archaeologist shall consult
with the property owner to try to facilitate the request of  the  lineal
descendants or culturally-affiliated group.
(b)  Within sixty days after receiving notification from the committee
to a lineal descendant or culturally-affiliated group of  the  discovery
of a burial site, the descendants or group shall advise the committee in
writing  as  to  the  preferred disposition of the discovered remains or
objects, which may include a request to protect the burial site and keep
the  remains interred where they were found. The committee shall consult
with the property owner to try to facilitate the request of  the  lineal
descendants or culturally-affiliated group.
(c)  No  later than ten days after receiving the report from the state
archaeologist pursuant to subdivision four of this section, the property
owner shall inform  the  state  archaeologist  of  their  decision  with
respect  to  the  interment of the remains on their property. The report
from the state archaeologist to the property owner shall clearly include
that the property owner has ten days to notify the  state  archaeologist
of  their  decision.  If  a  property  owner  fails  to notify the state
archaeologist  of  their  decision,  the  state  archaeologist  or   the
committee,  as  appropriate,  shall  abide by the decision of the lineal
descendants or culturally-affiliated group.
(d) Only the state archaeologist, a  registered  archaeologist,  or  a
registered professional archaeologist may touch or handle any remains or
funerary objects.
7.  Disposition  of human remains and funerary objects, generally. (a)
The property owner, their agents, assignees, employees, family  members,
friends,  acquaintances,  or  any  other individuals acting on behalf of
such property owner, other than the state archeologist or  a  registered
archeologist  or  a  registered  professional archaeologist hired by the
property owner and acting pursuant to paragraph (d) of this subdivision,
are strictly prohibited from moving, relocating, transferring,  selling,
possessing,  touching,  handling, or otherwise intentionally disturbing,
in  any  manner,  all  human  remains  and  funerary  objects  that  are
discovered  on  site.  Except  as necessary to carry out the purposes of
this section, burial sites, human remains  and  funerary  objects  shall
remain undisturbed after discovery and during the process established by
this section.
(b)  While  the  disposition of the remains shall be determined by the
lineal descendants or  culturally-affiliated  group,  and  the  property
owner,  the  preferred  disposition as a matter of policy is to have the
remains stay interred where they are discovered.
(c) (i) If the lineal descendants, or culturally-affiliated group, and
the property owner agree that  the  remains  shall  stay  interred,  the
committee or state archaeologist, as appropriate, shall establish a plan
of action for the preservation and protection of the remains.
(ii) If the lineal descendants or culturally-affiliated group requests
that  the  remains  be  excavated and moved to a different location, the
committee or state archaeologist, as appropriate,  shall  establish  and
implement  a plan of action for the respectful, dignified excavation and
removal of the remains.
(iii) If the lineal descendants or culturally-affiliated group  advise
that the remains stay interred, but the property owner notifies of their
decision,  as  provided  in  this  section,  that  the remains should be
removed, the committee or state  archaeologist,  as  appropriate,  shall
establish  and  implement a plan of action for the respectful, dignified
excavation  and  removal  of  the  remains.  Such  plan  shall  not   be
inconsistent with the provisions of this section. The committee or state
archaeologist may, prior to the execution of the plan of action, consult
with  the  property  owner  in  an attempt to realize the request of the
lineal descendants or  culturally-affiliated  group.  The  committee  or
state archaeologist may use a mediator, at no cost to the property owner

unless  mediation  is  requested  by the property owner, as part of this
process.
(d)  (i)  If the plan of action has not been implemented within ninety
days of the notification to the state archaeologist by  the  coroner  or
medical  examiner  pursuant to paragraph (a) of subdivision four of this
section, and any additional time provided pursuant to paragraph  (b)  of
subdivision  four  of  this  section,  the  property owner may decide to
excavate and remove the remains,  provided  that  they  shall  engage  a
registered  archeologist  or  a  registered  professional archaeologist,
registered with the Register  of  Professional  Archaeologists  and  who
practices  in  the  field of bioarchaeology or forensic anthropology, to
excavate and remove the remains in a  respectful  and  dignified  manner
that  is  not  inconsistent  with  the  provisions  of this section, and
provided  further  that  the  property  owner  may  request  the   state
archeologist   to   perform   any   such   excavation  or  removal.  The
culturally-affiliated group shall have the  right  to  have  a  cultural
monitor  on site prior to and during any excavation and removal of human
remains or funerary objects. Failure of the culturally-affiliated  group
to  have a monitor on site shall not be grounds to prohibit, prevent, or
pause any excavation, removal, or other  conduct  as  provided  in  this
section.
(ii)  If the plan of action has been substantially implemented but not
completed within the ninety-day period, and any additional time provided
pursuant to paragraph (b) of  subdivision  four  of  this  section,  the
committee  or state archaeologist may have one additional ten-day period
to complete the excavation and  removal.  The  state  archaeologist,  in
consultation  with  the  committee,  where  appropriate, shall determine
whether the plan of action has been substantially implemented.
(iii) Any excavation and removal caused by the property owner pursuant
to this paragraph shall be done at the expense of the property owner and
shall be performed and supervised by the registered archaeologist, or  a
registered  professional  archaeologist,  hired  by  the  property owner
pursuant to this subdivision,  provided  that  the  property  owner  may
request  the  state  archeologist  to  complete  any  such excavation or
removal  even  after  the  ninety-day  implementation  period   or   any
additional   time   provided   in   this   section   has   expired.  The
culturally-affiliated group may select a cultural monitor to observe the
work. Such archaeologist shall review the  established  plan  of  action
with  the  state archaeologist or the committee, as appropriate, and act
in accordance with that plan. For the purposes of this  paragraph,  only
the  state archaeologist, as provided in this section, or the registered
archaeologist or registered professional archaeologist hired to  perform
the  excavation  pursuant  to this subdivision may have physical contact
with or otherwise disturb the remains or burial site.
(iv) The  state  archaeologist  or  committee  shall  make  themselves
available  to  the  registered  archaeologist or registered professional
archaeologist forthwith for the purposes of discussing  the  established
plan  of  action  for  the site. If the state archaeologist or committee
fails  to  make   themselves   available   forthwith,   the   registered
archaeologist  or registered professional archaeologist may proceed with
the excavation and removal.
(v) If no plan of action has been established prior to the  expiration
of  the  ninety-day period, and any additional time provided pursuant to
paragraph (b) of  subdivision  four  of  this  section,  the  registered
archaeologist  or registered professional archaeologist may proceed with
the excavation and removal  in  a  professional,  respectful,  dignified
manner that is not inconsistent with the provisions of this section.
(vi)  Any  remains  or  funerary  objects excavated from the site as a
result  of  the  implementation  of  the  process  established  by  this
paragraph  shall  be  deposited  with  the  New  York  state  museum for
disposition.
(vii)  Notwithstanding  any conflicting provision of this section, the
state archeologist may at any time monitor and  observe  any  excavation
and removal performed pursuant to this section.
(e)  If  the state archaeologist and the committee have been unable to
identify the lineal descendants or culturally-affiliated group for human
remains  or  funerary  objects,  the  state  archaeologist  shall   take
stewardship  of  the remains and shall make the recommendation for their
disposition in accordance with the provisions of this section.
(f) Notwithstanding any conflicting provision of paragraph (d) of this
subdivision, for project sites that contain the remains of six  or  more
individuals,  if the state archaeologist determines that additional time
is necessary for the excavation of such site, an  additional  thirty-day
period  may  be added before the remains can be excavated and removed by
the property owner. If the state archeologist  continues  to  find  that
additional time is necessary, the period before remains can be excavated
and  removed  by  the  property  owner may be extended multiple times in
increments of thirty days. The state archaeologist must provide  a  copy
of  each  such  determination  to  the  property  owner  in writing. The
property owner may bring an action pursuant to article seventy-eight  of
the  civil  practice  law  and  rules to review the determination of the
state archaeologist pursuant to this paragraph.
8. Penalties. (a) Any person who fails to report the  discovery  of  a
burial   site,   human  remains  or  funerary  objects  as  required  by
subdivision  four  of  this  section  shall  be  guilty  of  a  class  B
misdemeanor, as defined in the penal law.
(b)  Any  person  other  than  the state archaeologist, or a person or
group with a right to remove or a right  of  possession  or  stewardship
pursuant  to  this  section,  or  a  designee thereof, who intentionally
removes human remains or funerary objects from a burial  site  shall  be
guilty of a class A misdemeanor, as defined in the penal law.
(c)  Any  person  (i) who knowingly defaces or destroys a burial site,
human remains or funerary objects, or (ii) who, knowing  that  a  burial
site,  human remains, or funerary objects exist causes another person to
deface or destroy such burial site, human remains, or funerary  objects,
or  (iii) who possesses human remains or funerary objects with intent to
sell such remains or artifacts, or (iv) who sells or  attempts  to  sell
human  remains or funerary objects, except when authorized by law, shall
be guilty of a class E felony, as defined in the penal law.
9. Enforcement. The attorney general or any aggrieved party, including
the committee and any lineal descendant or culturally-affiliated  group,
may  bring an action in supreme court in the judicial district where the
remains or objects  covered  by  this  section  are  located  to  enjoin
violations or threatened violations of this section, and to recover such
remains or objects.