Action Alert - Montana
Dear Friends and Colleagues:
Please consider writing a letter to the Lorents Grossfield, Chair of the 2nd House Committee of the Senate Judiciary Committee and request that the proposed Montana Repatriation Bill HB 165 be tabled. Also, please copy your letters to Governor Judy Martz. This is an unbalanced bill that that does not reflect the interest of all communities interested in Americas past. The bill has already passed the House. If HB 165 become law, it seems probably that we will lose the Anzick Clovis materials and other significant remains from Montana important to understanding the peopling of the Americas and Montana prehistory.
Please act now. The bill will be sent to the Senate within the next few days. I am enclosing my letter and a copy of the proposed bill to be used as background information in preparing your letter.
It is urgent that you communicate now. Please fax or e-mail
your letter to:
Dear Senator Grosfield:
I am writing in respect to HB 165, the Montana Repatriation Act, which will rectify shortcoming of the Human Skeletal Remains and Burial Site Protection Act passed in 1991. The authors claim that the bill gives interest of tribal, kinship, cultural, or religious groups a fair balance with the interests of scientists, agencies, law enforcement, and private landowners. My contention is that the proposed legislation is seriously flawed and should be tabled.
I am writing as a private citizen, and in my capacity as a scientist who has conducted archaeological research in the state of Montana for many years. I have grave concerns for the future of archaeological research and the preservation of significant early human remains in the state of Montana, if HB 165 is passed.
HB 165 apparently assumes that all-human remains, funerary objects, and items of cultural patrimony can be affiliated with modern recognized tribal groups. This assumption is wrong. The majority of human remains that have been and are likely to be found in the state of Montana constitute what are known as unidentified and unaffiliated human remains. After more than 10 years of dealing with NAGPRA, the federal Department of Interior has yet to develop meaningful and consistent regulation for dealing with unidentifiable and unaffiliated early human remains. The DOI's failure to deal with threshold definitional issues, such as "what is a Native American" and "how can cultural affiliation be reliably determined," are the focus of the four-year-old Kennewick Man lawsuit, which goes to court next June.
Archaeological, skeletal, and genetic evidence published by experts in the field of First American Studies suggest that the Americas were peopled at least several different times by different groups from Asia. Some of these groups may have gone extinct, others may have moved out of the state of Montana, and others may have merged with members from previous colonizing groups. Attempts to relate ancient human remains to modern populations are time consuming, expensive, and oftentimes impossible to accomplish.
The Anzick discovery is a case in point. The skeletal remains of two children and over 100 objects is the only known occurrence of a Clovis burial site in the Americas. These remains have been radiocarbon dated as greater than 11,000 radiocarbon years old, which is equivalent to 13,000 calendar years before present. The national and international significance of this unique discovery can not be over estimated. I fail to see how HB 165 will serve the interest of science or the public, which is keenly interested, in knowing about Americas' past. How many scientists, avocational archaeologists, and museum personnel are members on the review board that will make decisions about ancient human remains? Will school children have an opportunity to learn of the achievements of the Clovis people, or will the Anzick remains be placed in the ground in deference to the wishes of a modern group that may have no connection to the Anzick people?
How will landowner interests be protected under HB 165? Will the landowner be expected to set aside productive land with no compensation from the state, if a prehistoric burial is found on his or her land? What limits will be placed on the expenses that a landowner must pay if it becomes necessary to relocate and rebury ancient remains?
If HB 165 is passed as proposed, there is a high probability that state will be faced with expensive lawsuits. The interests of all concerned constituencies need to be served.
I would be happy to discuss any of the issues raised above. I can be reached at (541) 752-5503.
Cc: Governor Judy Martz
2001 Montana Legislature
About Bill -- Links
HOUSE BILL NO. 165
INTRODUCED BY G. GUTSCHE, C. JUNEAU, J. JAYNE, N. BIXBY, F. SMITH, B. EGGERS,
S. DOHERTY, L. GROSFIELD, M. HALLIGAN, J. COBB
BY REQUEST OF THE LAW, JUSTICE, AND INDIAN AFFAIRS INTERIM COMMITTEE
A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING THE MONTANA REPATRIATION ACT; PROVIDING A MECHANISM FOR THE RETURN OF HUMAN SKELETAL REMAINS OR FUNERARY OBJECTS TAKEN FROM BURIAL SITES ON STATE OR PRIVATE LAND PRIOR TO JULY 1, 1991, TO A TRIBAL GROUP, NEXT OF KIN, OR DESCENDANT ABLE TO ESTABLISH CULTURAL AFFILIATION; REQUIRING A HEARING PURSUANT TO THE MONTANA ADMINISTRATIVE PROCEDURE ACT; PROVIDING FOR AN APPEAL OF ANY BURIAL PRESERVATION BOARD DECISION TO DISTRICT COURT; STAYING A BOARD DECISION REGARDING REPATRIATION OR STUDY DURING AN APPEAL; PROVIDING FOR PAYMENT OF TESTING AND REIMBURSEMENT OF COURT COSTS AND REASONABLE ATTORNEY FEES; PROVIDING PROCEDURAL RULEMAKING AUTHORITY TO THE BOARD; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Short title. [Sections 1 through 6] may be cited as the "Montana Repatriation Act".
NEW SECTION. Section 2. Legislative findings and intent. (1) The legislature of the state of Montana finds that:
(a) since July 1, 1991, and passage of the Human Skeletal Remains and Burial Site Protection Act, Montana law has provided a mechanism to protect marked, unmarked, unrecorded, registered, or unregistered graves or burial grounds discovered on state and private land from pilferage, disturbance, and destruction in an effort to provide equal protection and respect for all burial sites, human skeletal remains, and funerary objects;
(b) despite the state's success in balancing the interests of those persons who have tribal, kinship, cultural, or religious affiliation with a burial site with the interests of scientists, agencies, law enforcement, and private landowners, the 1991 Human Skeletal Remains and Burial Site Protection Act failed to provide adequate funding to fully implement the purpose of the act and did not provide a mechanism to repatriate or return human skeletal remains or funerary objects that were taken from burial sites on state or private land prior to July 1, 1991;
(c) both common law and legal decisions have consistently recognized that human skeletal remains ARE NOT PROPERTY and THAT funerary objects interred with those human skeletal remains are not property ABANDONED WHEN INTERRED. DISCOVERERS, THEREFORE, HAVE NO RIGHT OF OWNERSHIP, AND THEY CANNOT CONFER A RIGHT OF OWNERSHIP TO ANOTHER. Neither a private nor public person, OTHER THAN A DESCENDANT OR CULTURALLY AFFILIATED GROUP, can legally claim ownership of human skeletal remains or funerary objects for purposes of a constitutional taking of private property for public use without just compensation BECAUSE THE PERSON WHO BURIED THE DECEASED AND INTERRED FUNERARY OBJECTS WITH THE DECEASED DID NOT THROUGH INTERMENT ABANDON A PROPERTY INTEREST IN THE OBJECTS, BUT INTENDED FOR THOSE OBJECTS TO REMAIN WITH THE DECEASED.
(d) the state of Montana has an obligation to avoid infringing upon the right to religious beliefs and practices guaranteed to all citizens under the free exercise clause of the first amendment of the United States constitution and under Article II, section 4, of the Montana constitution and to preserve the cultural integrity of American Indian citizens recognized by the state under Article X, section 1(2), of the Montana constitution;
(e) the state of Montana acknowledges the paramount privacy right of a tribe, group, lineal descendant, or museum to protect sensitive and sacred information that may be required to be disclosed to demonstrate cultural affiliation or lineal descent and therefore authorizes the protection of that information to the full extent allowed by the Montana constitution; and
(f) the state of Montana acknowledges the right of a museum to maintain control of human skeletal remains or funerary objects that are currently under scientific study prior to the effective date of the board's determination regarding repatriation.
(2) It is the intent of the legislature to:
(a) provide a seamless and consistent state policy to ensure that all human skeletal remains and funerary objects interred with those human skeletal remains be treated with dignity and respect;
(b) apply the state's repatriation policy consistently with the provisions of the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 through 3013, which was enacted by congress in 1990;
(c) encourage voluntary disclosure and return of human skeletal remains and funerary objects by an agency, museum, or private individual;
(d) provide a mechanism to provide for repatriation of human skeletal remains and funerary objects to tribal groups, a lineal descendant, or other person establishing cultural affiliation with those human skeletal remains or funerary objects that were taken from unprotected burial sites prior to July 1, 1991, and that are currently in the possession or control of an agency, museum, or private individual in this state; and
(e) protect the right of privacy guaranteed to tribal groups, next of kin, descendants, or museums regarding the disclosure of sacred or religious information to the full extent allowed by the Montana constitution.
NEW SECTION. Section 3. Definitions. As used in [sections 1 through 6], the following definitions apply:
(1) "Agency" means any department, bureau, commission, board, council, or political subdivision of the state of Montana.
(2) "Board" means the burial preservation board established in 22-3-804.
(3) "Burial site" has the meaning provided in 22-3-803.
(4) "Control" means having a legal interest in human skeletal remains or funerary objects sufficient to lawfully permit a museum to treat the object as part of its collection for purposes of [sections 1 through 6] whether or not the human skeletal remains or funerary objects are in the physical custody of the museum.
(5) "Cultural affiliation" means the existence of a shared group identity that can reasonably be traced historically or anthropologically or by pre-European contact between a federally recognized or state-recognized Indian tribe, tribally recognized Indian group, or other individual or group and an identifiable earlier tribe, group, or individual lineal descendant.
(6) "Funerary objects" means objects that, as part of a death rite or ceremony, are reasonably believed to have been placed with human skeletal remains AT A BURIAL SITE either at the time of death or later and that are currently in the possession or control of an agency, museum, or private individual.
(7) "Human skeletal remains" has the meaning provided in 22-3-803.
(8) "Inventory" means an itemized list that summarizes the collection of human skeletal remains and funerary objects in the possession or control of an agency or museum.
(9) "Marked, unmarked, unrecorded, registered, or unregistered grave or burial ground" has the meaning provided in 22-3-803.
(10) "Museum" means an entity or state or local government agency, including an educational institution, that receives state funding.
(11) (a) "Possession" means having physical custody of human skeletal remains or funerary objects with a sufficient legal interest to lawfully treat the human skeletal remains or funerary objects as part of a collection.
(b) The term does not include human skeletal remains or funerary objects on loan to an agency or museum.
(12) "Preponderance of the evidence" means that the claimant's evidence on a fact indicates that it is more likely than not that the fact is as the claimant alleges it to be.
(13) "Right of possession" means possession obtained with the voluntary consent of a group or individual that had authority of alienation over the object. The acquisition of a funerary object from a tribe, group, or private individual with the voluntary consent of the tribe, group, or private individual with authority to alienate the object constitutes the right of possession over that object. Divestiture of human skeletal remains or funerary objects from a person without a right of possession does not constitute a fifth amendment taking, pursuant to the United States constitution.
NEW SECTION. Section 4. Agency and museum inventory of human skeletal remains and funerary objects -- repatriation claims and standard -- procedure for competing claims -- appeal -- court costs and attorney fees -- rulemaking. (1) An agency or museum that on or after [the effective date of this act] has possession or control over collections of human skeletal remains or funerary objects shall within 6 months complete an inventory of all human skeletal remains and funerary objects and, to the extent possible based on all information possessed by or available to the agency or museum:
(a) identify the geographical and cultural affiliation of the human skeletal remains or funerary objects or the circumstances surrounding their acquisition;
(b) list in the inventory the human skeletal remains or funerary objects that are clearly identifiable as to cultural affiliation; and
(c) list the human skeletal remains or funerary objects that are not clearly identifiable by cultural affiliation but that, given the totality of circumstances surrounding the acquisition of the human skeletal remains or funerary objects, are determined by a reasonable belief to be human skeletal remains or funerary objects with a particular cultural affiliation.
(2) Within 3 months of completing the inventory, the agency or museum shall provide a copy of the inventory to:
(a) the board;
(b) the state historical preservation office; and
(c) each tribal government located in Montana.
(3) The agency, museum, board, or state historical preservation office shall provide a copy of an inventory list to a requesting party only after the agency, museum, board, or office, pursuant to Article II, section 9, of the Montana constitution, has balanced the public's right to the information and the individual privacy interest associated with the information and has determined that the right of individual privacy does not clearly exceed the merits of public disclosure.
(4) If the agency or museum determines that it does not have in its possession or control any human skeletal remains or any artifacts that might be funerary objects, the agency or museum shall, in lieu of an inventory, state that finding in a letter to each of the entities listed in subsection (2).
(5) Following completion of the initial inventory, each agency or museum shall update its inventory list whenever the agency or museum receives new human skeletal remains or funerary objects through a loan or donation. Upon completion, the agency or museum shall provide a copy of its updated inventory to the entities listed in subsection (2).
(6) A person claiming cultural affiliation and requesting the return of human skeletal remains or funerary objects listed in the inventory of an agency or museum or who requests the return of human skeletal remains or funerary objects that are not listed in the inventory but are believed to be in the possession or control of the agency, the museum, or a private individual in the state shall:
(a) file a written claim for the human skeletal remains or funerary objects with the board and the person or entity believed to have possession or control; and
(b) provide evidence that would establish cultural affiliation and support a finding that the agency, museum, or private individual does not have the right of possession.
(7) The board shall appoint a hearings examiner who has legal training to hold a hearing pursuant to Title 2, chapter 4, part 6, on the evidence presented by each party. A museum may also present evidence supporting its request for a temporary delay in repatriation because of:
(a) scientific study occurring on human skeletal remains or funerary objects in its possession or control on or before [the effective date of this act]; or
(b) good faith efforts to proceed with a scientific study of human skeletal remains or funerary objects in its possession or control on or before [the effective date of this act].
(8) If a hearings examiner determines that a museum has provided evidence supporting a good faith effort regarding scientific study, the hearings examiner shall provide a reasonable period of delay to allow completion of the study prior to ordering repatriation.
(9) If, based on a preponderance of the evidence, the evidence presented supports the claimant's claim of cultural affiliation with the human skeletal remains or funerary object and the agency, museum, or private individual cannot show a right of possession or provide evidence of the need to temporarily delay repatriation based on an ongoing scientific study or a good faith effort toward scientific study on or before [the effective date of this act], the hearings examiner shall issue an order requiring the agency, museum, or private individual to consult with the claimant and arrange for the expeditious repatriation of the human skeletal remains or funerary objects to the claimant. Either party or an intervenor may request and is responsible for the cost of genetic or other testing necessary to determine cultural affiliation. The hearings examiner may order any testing necessary and may require a surety bond to ensure protection of human skeletal remains or funerary objects. The hearings examiner may grant or deny any testing requested.
(10) At the conclusion of the hearing, the board shall:
(a) issue findings of facts and conclusions related to any decision regarding its determination supporting or denying a claimant's written request for the repatriation of human skeletal remains or funerary objects;
(b) issue findings of facts and conclusions related to any decision regarding a museum's request for a temporary delay in repatriation pending completion of its ongoing scientific study; and
(c) provide the claimant, respondent, or museum with a written copy of its findings and conclusions regarding the specific repatriation request.
(11) If multiple requests for repatriation of human skeletal remains or funerary objects occur and the appropriate claimant cannot be determined, the board shall provide for the appropriate care and handling of the human skeletal remains or funerary objects until the requesting parties agree upon the disposition, the dispute is resolved by the board pursuant to this section, or the issue is resolved in a court of competent jurisdiction.
(12) An agency, museum, or person who repatriates human skeletal remains or funerary objects in good faith pursuant to this section is not liable for claims by an aggrieved party or for claims of breach of a fiduciary duty or the public trust or of violation of state law that are inconsistent with [sections 1 through 6].
(13) Within 30 days of a board decision regarding human skeletal remains or a funerary object located within the jurisdiction of the state, either party may file an appeal in the district court in the county in which the subject of the dispute is located. The losing party is responsible for all court costs and for reimbursement of reasonable attorney fees to the prevailing party.
(14) The board shall adopt rules necessary to provide procedures for the hearing authorized under this section.
(15) This section does not prevent the governing body of an Indian tribe or group from expressly relinquishing control over any human skeletal remains or control or title to any funerary object.
NEW SECTION. Section 5. Closure of board hearings. To the extent allowed by Montana law, the board shall, upon the request of either party or an intervenor, close part of a hearing of the board to the public if the board finds that information required at the hearing may include identification of the specific location of a burial site, human skeletal remains, or funerary objects or that information necessary for a determination regarding repatriation may compromise or interfere with any religious practice or custom.
NEW SECTION. Section 6. Stay of order pending appeal. (1) The filing of an appeal by either party automatically stays a board order on repatriation of human skeletal remains or funerary objects.
(2) A protection order issued by the board remains in effect until a final decision is issued by the court.
NEW SECTION. Section 7. Codification instruction. [Sections 1 through 6] are intended to be codified as an integral part of Title 22, chapter 3, and the provisions of Title 22, chapter 3, apply to [sections 1 through 6].
NEW SECTION. Section 8. Effective date. [This act] is effective on passage and approval.
- END -
Latest Version of HB 165 (HB0165.02)
New language in a bill appears underlined, deleted material appears stricken.
Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of this bill for the bill's primary sponsor.
Status of this Bill | 2001 Legislature | Leg. Branch Home
Prepared by Montana Legislative Services
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