S.B. 235

1

HUMAN REMAINS RELATED AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Kevin T. VanTassell
5 House Sponsor: Douglas C. Aagard
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Native American Grave Protection and Repatriation Act.
10 Highlighted Provisions:
11 This bill:
12 . defines terms;
13 . provides for administrative resolution of claims for Native American remains before
14 an action may be filed in court;
15 . exempts certain actions from the Administrative Procedures Act; and
16 . makes technical and conforming amendments.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 9-9-402, as last amended by Laws of Utah 2007, Chapter 231
24 9-9-403, as last amended by Laws of Utah 2007, Chapter 231
25 9-9-405, as last amended by Laws of Utah 1997, Chapter 35
26 9-9-406, as enacted by Laws of Utah 1992, Chapter 286
27 63-38f-415, as renumbered and amended by Laws of Utah 2005, Chapter 148

28
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 9-9-402 is amended to read:
31 9-9-402. Definitions.
32 As used in this part:
33 (1) "Antiquities Section" means the Antiquities Section of the Division of History.
34 (2) "Burial site" means [any] a natural or prepared physical location, whether originally
35 below, on, or above the surface of the earth, into which as a part of the death rite or ceremony
36 of a culture individual human remains are deposited.
37 (3) "Cultural affiliation" means that there is a relationship of shared group identity that
38 can be reasonably traced historically or prehistorically between a present day Indian tribe and
39 an identifiable earlier group.
40 (4) "Director" means the director of the Division of Indian Affairs.
41 [(4)] (5) "Division" means the Division of Indian Affairs.
42 [(5)] (6) "Indian tribe" means [any] a tribe, band, nation, or other organized group or
43 community of Indians that is recognized as eligible for the special programs and services
44 provided by the United States to Indians because of their status as Indians.
45 [(6)] (7) "Lineal descendant" means the genealogical descendant established by oral or
46 written record.
47 [(7)] (8) "Native American" means of or relating to a tribe, people, or culture that is
48 indigenous to the United States.
49 [(8)] (9) "Native American remains" means remains that are Native American.
50 [(9)] (10) (a) "Nonfederal land" means land in the state that is not owned, controlled, or
51 held in trust by the federal government.
52 (b) "Nonfederal land" includes:
53 (i) land owned or controlled by:
54 (A) the state;
55 (B) a county, city, or town;
56 (C) an Indian tribe, if the land is not held in trust by the United States for the Indian
57 tribe or the Indian tribe's members; or
58 (D) a person other than the federal government; or

59 (ii) school and institutional trust lands as defined in Section 53C-1-103 .
60 [(10)] (11) "Remains" means all or part of a physical individual and objects on or
61 attached to the physical individual that are placed there as part of the death rite or ceremony of
62 a culture.
63 (12) "Review committee" means the Native American Remains Review Committee
64 created by Section 9-9-405 .
65 [(11)] (13) (a) "State land" means [any] land owned by the state including the state's:
66 (i) legislative and judicial branches;
67 (ii) departments, divisions, agencies, boards, commissions, councils, and committees;
68 and
69 (iii) institutions of higher education as defined under Section 53B-3-102 .
70 (b) "State land" does not include:
71 (i) land owned by a political subdivision of the state;
72 (ii) land owned by a school district;
73 (iii) private land; or
74 (iv) school and institutional trust lands as defined in Section 53C-1-103 .
75 Section 2. Section 9-9-403 is amended to read:
76 9-9-403. Ownership and disposition of Native American remains.
77 (1) If Native American remains are discovered on nonfederal lands on or after April 30,
78 2007, the ownership or control of the Native American remains shall be determined in the
79 following priority:
80 (a) first, in the lineal descendants of the Native American;
81 (b) second, if the lineal descendants cannot be ascertained, in the Indian tribe that:
82 (i) has the closest cultural affiliation with the Native American remains; and [that]
83 (ii) states a claim for the Native American remains; or
84 (c) third[, if cultural affiliation of the Native American remains cannot be reasonably
85 ascertained and the land is recognized either by a final judgment of the Indian Claims
86 Commission or through other evidence as the exclusive or joint aboriginal land of some Indian
87 tribe,]:
88 (i) in the Indian tribe that is recognized as aboriginally occupying the area in which the
89 Native American remains are discovered, if:

90 (A) cultural affiliation of the Native American remains cannot be reasonably
91 ascertained;
92 (B) the land is recognized either by a final judgment of the Indian Claims Commission
93 or through other evidence as the exclusive or joint aboriginal land of some Indian tribe; and
94 (C) that tribe states a claim for the Native American remains[,]; or
95 (ii) in a different tribe if:
96 (A) it can be shown by a preponderance of the evidence that that different tribe has a
97 stronger genetic or cultural relationship with the Native American remains; and
98 (B) that different tribe states a claim for the Native American remains.
99 (2) Subject to Subsection (7), Native American remains discovered on nonfederal lands
100 that are not claimed under Subsection (1) shall be disposed of in accordance with rules made
101 by the division:
102 (a) consistent with Chapter 8, Part 3, Antiquities[,]; and
103 (b) in consultation with Native American groups, representatives of repositories, and
104 the review committee established under Section 9-9-405 .
105 (3) The intentional removal or excavation of Native American remains from state lands
106 may be permitted only if:
107 (a) the Native American remains are excavated or removed pursuant to a permit issued
108 under Section 9-8-305 ;
109 (b) the Native American remains are excavated or removed after consultation with and
110 written consent of the owner of the state land; and
111 (c) the ownership or right of control of the disposition of the Native American remains
112 is determined as provided in Subsections (1) and (2).
113 (4) (a) [Any] A person who knows or has reason to know that the person has
114 discovered Native American remains on state lands after March 17, 1992 shall notify, in
115 writing, the appropriate state agency having primary management authority over the lands as
116 provided in Chapter 8, Part 3, Antiquities.
117 (b) If the discovery occurs in connection with construction, mining, logging,
118 agriculture, or a related activity, the person shall:
119 (i) cease the activity in the area of the discovery[,];
120 (ii) make a reasonable effort to protect the Native American remains discovered before

121 resuming the activity[,]; and
122 (iii) provide notice of discovery to the appropriate state agency under Subsection
123 (4)(a).
124 (c) Following notification under Subsections (4)(a) and (b) and upon certification by
125 the head of the appropriate state agency that notification [has been] is received, the activity may
126 resume after compliance with Section 76-9-704 .
127 (5) (a) Scientific study of Native American remains may be carried out only with
128 approval of the owner of the Native American remains as established in Subsections (1) and
129 (2).
130 (b) (i) If ownership is unknown, [prior study shall be] study before identifying
131 ownership is restricted to those sufficient to identify ownership. [This study]
132 (ii) Study to identify ownership shall be approved only in accordance with rules made
133 by the division in consultation with the review committee [established under Section 9-9-405 ].
134 (c) The Native American remains may not be retained longer than 90 days after the
135 date of establishing ownership.
136 (6) (a) Ownership of Native American remains shall be determined in accordance with
137 this Subsection (6) if:
138 [(6) If] (i) there are multiple claims of ownership under Subsection (1) of [any] Native
139 American remains; and
140 (ii) the division cannot clearly determine which [party making a claim] claimant is the
141 most appropriate claimant[,].
142 (b) If the conditions of Subsection (6)(a) are met, the appropriate state agency having
143 primary authority over the lands as provided in Chapter 8, Part 3, Antiquities, may retain the
144 remains until [the parties that make a claim]:
145 (i) the multiple claimants for the Native American remains enter into an agreement
146 concerning the disposition of the Native American remains [or];
147 (ii) the dispute is [otherwise] resolved through an administrative process:
148 (A) established by rules made by the division in accordance with Title 63, Chapter 46a,
149 Utah Administrative Rulemaking Act; and
150 (B) that is exempt from Title 63, Chapter 46b, Administrative Procedures Act; or
151 (iii) after the administrative process described in Subsection (6)(b)(ii) is complete, the

152 dispute is resolved by a court of competent jurisdiction.
153 (7) The division may not make rules that impose any requirement on a person who
154 discovers Native American remains or owns or controls nonfederal land that is not state land
155 on which Native American remains are discovered that is not expressly provided for in Section
156 9-8-309 .
157 (8) For purposes of this part, if Native American remains are discovered on nonfederal
158 land that is not state land, the Antiquities Section [shall be] is considered the state agency
159 having primary authority over the nonfederal land.
160 (9) This part does not modify any property rights of a person that owns or controls
161 nonfederal land except as to the ownership of Native American remains.
162 Section 3. Section 9-9-405 is amended to read:
163 9-9-405. Review committee.
164 (1) There is created a Native American Remains Review Committee.
165 (2) (a) The review committee shall be composed of seven members as follows:
166 (i) four shall be appointed by the [division] director from nominations submitted by
167 Indian tribes; and
168 (ii) three shall be appointed by the [division] director from nominations submitted by
169 representatives of repositories.
170 (b) Except as required by Subsection (2)(c), as terms of current committee members
171 expire, the [division] director shall appoint each new member or reappointed member to a
172 four-year term.
173 (c) Notwithstanding the requirements of Subsection (2)(b), the [division] director shall,
174 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms
175 of committee members are staggered so that approximately half of the review committee is
176 appointed every two years.
177 (d) When a vacancy occurs in the membership for any reason, the [replacement shall be
178 appointed] director shall appoint a replacement for the unexpired term.
179 (e) (i) A member [shall] may not receive [no] compensation or benefits for the
180 member's services, but may receive per diem and expenses incurred in the performance of the
181 member's official duties at the rates established by the Division of Finance under Sections
182 63A-3-106 and 63A-3-107 .

183 (ii) A member may decline to receive per diem and expenses for the member's service.
184 (f) The review committee shall designate one of its members as chair.
185 (3) The review committee shall:
186 (a) monitor the identification process conducted under Section 9-9-403 to ensure a fair
187 and objective consideration and assessment of all available relevant information and evidence;
188 (b) review[, upon the request of any affected party, any] a finding relating to the
189 following, subject to the rules made by the division under Subsection 9-9-403 (6):
190 (i) the identity or cultural affiliation of Native American remains; or
191 (ii) the return of [these] Native American remains;
192 (c) facilitate the resolution of [any disputes] a dispute among Indian tribes or lineal
193 descendants and state agencies relating to the return of Native American remains, including
194 convening the parties to the dispute if [deemed] considered desirable;
195 (d) consult with Indian tribes on matters within the scope of the work of the review
196 committee affecting these tribes;
197 (e) consult with the division in the development of rules to carry out this part;
198 (f) perform other related functions as the division may assign to the review committee;
199 and
200 (g) make recommendations, if appropriate, regarding [future] care of Native American
201 remains that are to be repatriated.
202 (4) [Any records and findings] A record or finding made by the review committee
203 relating to the identity of or cultural affiliation of [any] Native American remains and the return
204 of [any] Native American remains may be admissible in any action brought under this part.
205 (5) The appropriate state agency having primary authority over the lands as provided in
206 Chapter 8, Part 3, Antiquities, shall ensure that the review committee [have] has reasonable
207 access to:
208 (a) Native American remains under review; and [to]
209 (b) associated scientific and historical documents.
210 (6) The division shall provide reasonable administrative and staff support necessary for
211 the deliberations of the review committee.
212 (7) The review committee shall submit an annual report to the Native American
213 Legislative Liaison Committee, created in Section 36-22-1 , on the progress made, and any

214 barriers encountered, in implementing this section during the previous year.
215 Section 4. Section 9-9-406 is amended to read:
216 9-9-406. Savings provision.
217 Nothing in this part may be construed to:
218 (1) limit the authority of [any] a state agency to:
219 (a) return or repatriate Native American remains to Indian tribes or individuals; or
220 (b) enter into [any other] another agreement with the consent of the lineal descendant
221 or culturally affiliated tribe as to the disposition or control over Native American remains;
222 (2) delay actions on repatriation requests that are pending [on the effective date of this
223 part] March 17, 1992;
224 (3) deny or otherwise affect access to any court, except as provided in Subsection
225 9-9-403 (6);
226 (4) limit any procedural or substantive rights [which] that may otherwise be secured to
227 individuals or Indian tribes; or
228 (5) limit the application of any state or federal law pertaining to theft or stolen
229 property.
230 Section 5. Section 63-38f-415 is amended to read:
231 63-38f-415. Indian tribes -- Application.
232 (1) For purposes of this section:
233 (a) "Indian reservation" is as defined in Section 9-9-210 .
234 (b) "Indian tribe" is as defined in Subsection 9-9-402 [(4)] (6).
235 (c) "Tribal applicant" means the governing authority of a tribe that meets the
236 requirements for designation as an enterprise zone under Subsection [(3)](2).
237 (2) Indian tribes may apply for designation of an area within an Indian reservation as an
238 enterprise zone.
239 (3) The tribal applicant shall follow the application procedure for a municipal applicant
240 in this part except for the population requirement in Subsections 63-38f-404 (2)(a) and (b).

Legislative Review Note
as of 2-12-08 7:22 AM

Office of Legislative Research and General Counsel