Chapter 27.44 RCW

INDIAN GRAVES AND RECORDS

Sections

27.44.020Examination permittedRemoval to archaeological repository.
27.44.030Intent.
27.44.040Protection of Indian gravesPenalty.
27.44.050Civil action by Indian tribe or memberTime for commencing actionVenueDamagesAttorneys' fees.
27.44.055Skeletal human remainsDuty to notifyGround disturbing activitiesCoroner determinationDefinitions.
27.44.901Liberal construction1989 c 44.


27.44.020
Examination permitted—Removal to archaeological repository.

Any archaeologist or interested person may copy and examine such glyptic or painted records or examine the surface of any such cairn or grave, but no such record or archaeological material from any such cairn or grave may be removed unless the same shall be destined for reburial or perpetual preservation in a duly recognized archaeological repository and permission for scientific research and removal of specimens of such records and material has been granted by the state historic preservation officer. Whenever a request for permission to remove records or material is received, the state historic preservation officer shall notify the affected Indian tribe or tribes.

NOTES:

SeverabilityNomenclatureSavings1977 ex.s. c 169: See notes following RCW 28B.10.016.



27.44.030
Intent.

The legislature hereby declares that:
(1) Native Indian burial grounds and historic graves are acknowledged to be a finite, irreplaceable, and nonrenewable cultural resource, and are an intrinsic part of the cultural heritage of the people of Washington. The legislature recognizes the value and importance of respecting all graves, and the spiritual significance of such sites to the people of this state;
(2) There have been reports and incidents of deliberate interference with native Indian and historic graves for profit-making motives;
(3) There has been careless indifference in cases of accidental disturbance of sites, graves, and burial grounds;
(4) Indian burial sites, cairns, glyptic markings, and historic graves located on public and private land are to be protected and it is therefore the legislature's intent to encourage voluntary reporting and respectful handling in cases of accidental disturbance and provide enhanced penalties for deliberate desecration.



27.44.040
Protection of Indian graves—Penalty.

(1) Any person who knowingly removes, mutilates, defaces, injures, or destroys any cairn or grave of any native Indian, or any glyptic or painted record of any tribe or peoples is guilty of a class C felony punishable under chapter 9A.20 RCW. Persons disturbing native Indian graves through inadvertence, including disturbance through construction, mining, logging, agricultural activity, or any other activity, shall reinter the human remains under the supervision of the appropriate Indian tribe. The expenses of reinterment are to be paid by the *office of archaeology and historic preservation pursuant to RCW 27.34.220.
(2) Any person who sells any native Indian artifacts or any human remains that are known to have been taken from an Indian cairn or grave, is guilty of a class C felony punishable under chapter 9A.20 RCW.
(3) This section does not apply to:
(a) The possession or sale of native Indian artifacts discovered in or taken from locations other than native Indian cairns or graves, or artifacts that were removed from cairns or graves as may be authorized by RCW 27.53.060 or by other than human action; or
(b) Actions taken in the performance of official law enforcement duties.
(4) It shall be a complete defense in the prosecution under this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains, glyptic, or painted records, or artifacts accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

NOTES:

*Reviser's note: Powers, duties, and functions of the office of archaeology and historic preservation were transferred to the department of archaeology and historic preservation pursuant to 2005 c 333 § 12.



27.44.050
Civil action by Indian tribe or member—Time for commencing action—Venue—Damages—Attorneys' fees.

(1) Apart from any criminal prosecution, an Indian tribe or enrolled member thereof, shall have a civil action to secure an injunction, damages, or other appropriate relief against any person who is alleged to have violated RCW 27.44.040. The action must be brought within two years of the discovery of the violation by the plaintiff. The action may be filed in the superior or tribal court of the county in which the grave, cairn, remains, or artifacts are located, or in the superior court of the county within which the defendant resides.
(2) Any conviction pursuant to RCW 27.44.040 shall be prima facie evidence in an action brought under this section.
(3) If the plaintiff prevails:
(a) The court may award reasonable attorneys' fees to the plaintiff;
(b) The court may grant injunctive or such other equitable relief as is appropriate, including forfeiture of any artifacts or remains acquired or equipment used in the violation. The court shall order the disposition of any items forfeited as the court sees fit, including the reinterment of human remains;
(c) The plaintiff shall recover imputed damages of five hundred dollars or actual damages, whichever is greater. Actual damages include special and general damages, which include damages for emotional distress;
(d) The plaintiff may recover punitive damages upon proof that the violation was willful. Punitive damages may be recovered without proof of actual damages. All punitive damages shall be paid by the defendant to the *office of archaeology and historic preservation for the purposes of Indian historic preservation and to cover the cost of reinterment expenses by the office; and
(e) An award of imputed or punitive damages may be made only once for a particular violation by a particular person, but shall not preclude the award of such damages based on violations by other persons or on other violations.
(4) If the defendant prevails, the court may award reasonable attorneys' fees to the defendant.

NOTES:

*Reviser's note: Powers, duties, and functions of the office of archaeology and historic preservation were transferred to the department of archaeology and historic preservation pursuant to 2005 c 333 § 12.



27.44.055
Skeletal human remains—Duty to notify—Ground disturbing activities—Coroner determination—Definitions.

(1) Any person who discovers skeletal human remains must notify the coroner and local law enforcement in the most expeditious manner possible. Any person knowing of the existence of human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice thereof is guilty of a misdemeanor.
(2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
(a) Immediately cease any activity which may cause further disturbance;
(b) Make a reasonable effort to protect the area from further disturbance;
(c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
(d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
(i) The finding of the remains was based on inadvertent discovery;
(ii) The requirements of the subsection are otherwise met; and
(iii) The person is otherwise in compliance with applicable law.
(3) The coroner must make a determination whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
(a) Upon determination that the remains are nonforensic, the coroner must notify the department of archaeology and historic preservation within two business days. The department will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
(b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the department must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the department. A notification to tribes of a finding of nonforensic skeletal human remains does not create a presumption that the remains are Indian.
(c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of such nonforensic remains. If the remains are determined to be Indian, the department must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff.
(d) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
(4) For the purposes of this section:
(a) "Affected tribes" are:
(i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
(ii) Those federally recognized tribes that submit to the department maps that reflect the tribe's geographical area of cultural affiliation; and
(iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
(b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
(c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
(5) Nothing in this section constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe.

NOTES:

Reporting requirements2008 c 275: See note following RCW 68.50.645.



27.44.901
Liberal construction—1989 c 44.

This act is to be liberally construed to achieve the legislature's intent.