Heritage and Arts, History

Rule R455-4

Ancient Human Remains

Notice of Proposed Rule

(Amendment)

DAR File No.: 36762
Filed: 09/13/2012 04:35:45 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The media has a high level of interest in publishing photographs of human remains when they are discovered (usually as part of a development project). However, Native Americans view this practice as highly disrespectful. Police have statutory authority to set a perimeter around a recovery site because the site is critical to an "ongoing investigation". However, once the remains are determined to be of ancient origin, the police are frequently called away to more immediate priorities. The Department doesn't currently have specific statutory authority to establish a formal perimeter.

Summary of the rule or change:

The majority of ancient human remains that are discovered are located in areas that are inconvenient to the media, but when they are found in more urban areas, departmental staff involved in the recovery find themselves struggling to conduct their work because of the time they have to invest in trying to maintain cultural sensitivity. The purpose of this rule amendment is to clarify the process by which department personnel conduct their excavations.

State statutory or constitutional authorization for this rule:

• Section 9-8-403
• Section 9-8-309
• Section 76-9-704

Anticipated cost or savings to:

the state budget:

The existing recovery process is funded as part of the department's regular operating expenses. Other than a one-time cost for the screening material (which has already been purchased), there will be no new cost or savings to the state budget. This rule will result in greater cultural sensitivity, as well as greater efficiency for the excavation process.

local governments:

Local governments don't participate in the cost of remains recovery and repatriation. It is anticipated that there will be no additional costs to local government with the proposed rule.

small businesses:

Small businesses don't participate in the cost of remains recovery and repatriation. It is anticipated that there will be no additional costs to local government with the proposed rule.

persons other than small businesses, businesses, or local governmental entities:

The existing recovery process is funded as part of the department's regular operating expenses. It is anticipated that there will be no additional costs resulting from this rule amendment to any public or private entity.

Compliance costs for affected persons:

None--The screening equipment has already been purchased by the Division of History.

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

This rule doesn't restrict the media from photographing excavation sites, but is intended only to restrict photos of culturally sensitive items (human remains).

Julie Fisher, Executive Director

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

Heritage and Arts
History
300 RIO GRANDE ST
SALT LAKE CITY, UT 84101-1182

Direct questions regarding this rule to:

• Michael Hansen at the above address, by phone at 801-245-7204, by FAX at 801-521-4727, or by Internet E-mail at mhansen1@utah.gov

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:

10/31/2012

This rule may become effective on:

11/09/2012

Authorized by:

Michael Hansen, Deputy Director

R455. Heritage and Arts, History.

R455-4. Ancient Human Remains.

R455-4-1. General Authority.

Section 9-8-309 defines the Antiquities Section's duties with respect to recovery, disposition, and determination of ownership of ancient human remains found on nonfederal lands that are not state lands in the State of Utah.

 

R455-4-2. Purpose.

The primary purpose of the 9-8-309 and this rule is to assure that ancient human remains are given respectful, lawful, and scientifically-sound treatment, that landowners are not harmed or burdened by a discovery of ancient human remains on their property, and to ensure that steps are taken to determine lawful ownership of recovered remains.

 

R455-4-3. Definitions.

A. "Antiquities Section" means the Antiquities Section of the Division of State History.

B. "ancient" means one-hundred years of age or older.

C. "Native American" means of or relating to a tribe, people, or culture that is indigenous to the United States.

D. "human remains" means all or part of a physical individual, in any stage of decomposition, and objects on or in association with the physical individual that were placed there as part of the death rite or ceremony of a culture.

E. "nonfederal land" includes land owned or controlled by the state, a county, city, or town, an Indian tribe, if the land is not held in trust by the United States for the Indian tribe or the Indian tribe's members, a person other than the federal government; or school and institutional trust lands as defined in Section 53C-1-103.

F. "state land" means any land owned by the state including the state's legislative and judicial branches, departments, divisions, agencies, boards, commissions, councils, and committees, institutions of higher education as defined under Section 53B-3-102. "State land" does not include land owned by a political subdivision of the state, land owned by a school district; private land, school and institutional trust lands as defined in Section 53C-1-103.

G. "excavate" means the scientific disturbance or removal of surface or subsurface archaeological resources by qualified archaeologists in compliance with Title 9, Chapter 8, Part 3, Antiquities.

H. "Director" means the Director of the Utah Division of State History.

I. "local law enforcement agency" means the police department, sheriff's office, or other agency having jurisdiction.

 

R455-4-4. Response to Notification of a Discovery of Ancient Human Remains.

Human remains that are discovered in conjunction with a project or undertaking subject to Chapter 8, part 4 Historic Sites, or Section 106 of the National Historic Preservation Act, are the responsibility of the project proponents, not the Antiquities Section. The Antiquities Section may however advise, assist and cooperate with responsible agencies in meeting their obligations regarding ancient human remains. For ancient human remains recovered as part of a compliance project from lands covered by 9-8-309, the Antiquities Section will, following appropriate analyses, and if asked, assume the role of the landowner for purposes of determination of ownership as per 9-9-403(8).

Upon notification that ancient human remains have been discovered, the Antiquities Section will gather information and consult as necessary with affected agencies and individuals and within two business days determine a course of action with approval of the landowner(leave remains in place or excavate and remove remains) and notify the affected agencies and individuals of the decision.

 

R455-4-5. Excavation and Removal of Ancient Human Remains.

If the landowner grants permission for excavation and removal, the Antiquities Section or its agent will conduct respectful and scientifically-sound investigations of the remains and will remove from the site the remains within five days of receiving permission to excavate. The Antiquities Section may establish a perimeter around the area of the remains for the protection of staff and the remains. Only Antiquities Section personnel and those individuals with permission from the Antiquities Section will be allowed into the area surrounding the remains until the excavation is completed. If agreed to by the landowner, an alternative agreement may be reached (as provided for in 9-8-309(3)). If extraordinary circumstances (as defined in 9-8-309(1)(c)(i) exist or arise requiring a time extension, the Antiquities Section will notify the landowner immediately.

If the landowner does not grant permission to excavate and remove the ancient human remains, the Antiquities Section will inform the landowner of the legal restrictions regarding human remains as specified in UCA 76-9-704.

Excavated human remains will be examined. Those determined to be Native American will be subject to Chapter 9, Part 4, Native American Grave Protection and Repatriation Act. For the purposes of determining ownership under the act, for all remains excavated under the provisions of this part by the Antiquities Section, the Section will serve in the capacity of the landowner and will make lineal descent and cultural affiliation ownership determinations in consultation with the Division of Indian Affairs and allowing interested individuals and tribes to assert claims of ownership.

 

KEY: ancient human remains, archaeology

Date of Enactment or Last Substantive Amendment: [June 25, 2008]2012

Notice of Continuation: July 13, 2011

Authorizing, and Implemented or Interpreted Law: 9-8-309; 9-8-403; 76-9-704