Minnesota Legislature
HF 3374
as introduced - 91st Legislature (2019 - 2020) Posted on 02/18/2020 11:27am
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A bill for an act
relating to state government; changing provisions governing human burials,
remains, and cemeteries; amending Minnesota Statutes 2018, section 307.08.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2018, section 307.08, is amended to read:
307.08 DAMAGES; ILLEGAL MOLESTATION OF HUMAN REMAINS;
BURIALS; CEMETERIES; PENALTY; deleted text begin AUTHENTICATIONdeleted text end new text begin ASSESSMENTnew text end .
Subdivision 1.
Legislative intent; scope.
It is a declaration and statement of legislative
intent that all human burials, human remains, and deleted text begin human burial groundsdeleted text end new text begin cemeteriesnew text end shall
be accorded equal treatment and respect for human dignity without reference to their ethnic
origins, cultural backgrounds, or religious affiliations. The provisions of this section shall
apply to all human burials, human remains, or deleted text begin human burial groundsdeleted text end new text begin cemeteriesnew text end found on
or in all public or private lands or waters in Minnesota.
Subd. 2.
Felony; gross misdemeanor.
(a) A person who intentionally, willfully, and
knowingly does any of the following is guilty of a felony:
(1) destroys, mutilates, or injures human burials or deleted text begin human burial groundsdeleted text end new text begin cemetery, or
associated grave goodsnew text end ; or
(2) without the consent of the appropriate authority, disturbs deleted text begin human burial groundsdeleted text end new text begin a
cemeterynew text end or removes human remainsnew text begin or associated grave goodsnew text end .
(b) A person who, without the consent of the appropriate authority and the landowner,
intentionally, willfully, and knowingly does any of the following is guilty of a gross
misdemeanor:
(1) removes any tombstone, monument, or structure placed in any public or private
cemetery or deleted text begin authenticated human burial grounddeleted text end new text begin assessed cemeterynew text end ; or
(2) removes any fence, railing, or other work erected for protection or ornament, or any
tree, shrub, or plant or grave goods and artifacts within the limits of a deleted text begin public or privatedeleted text end
cemetery deleted text begin or authenticated human burial grounddeleted text end ; or
(3) discharges any firearms upon or over the grounds of any deleted text begin public or privatedeleted text end cemetery
deleted text begin or authenticated burial grounddeleted text end .
Subd. 3.
Protective posting.
Upon the agreement of the appropriate authority and the
landowner, deleted text begin an authenticated or recorded human burial grounddeleted text end new text begin a cemeterynew text end may be posted
for protective purposes every 75 feet around its perimeter with signs listing the activities
prohibited by subdivision 2 and the penalty for violation of it. Posting is at the discretion
of the Indian affairs council in the case ofnew text begin Americannew text end Indian deleted text begin burialsdeleted text end new text begin cemeteriesnew text end or at the
discretion of the state archaeologist in the case of deleted text begin non-Indian burialsdeleted text end new text begin non-American Indian
cemeteriesnew text end . This subdivision does not require posting of a deleted text begin burial grounddeleted text end new text begin cemeterynew text end . The size,
description, location, and information on the signs used for protective posting must be
approved by the appropriate authority and the landowner.
Subd. 3a.
deleted text begin Authenticationdeleted text end new text begin Cemeteries; records and condition assessmentsnew text end .
deleted text begin
The state
archaeologist shall authenticate all burial grounds for purposes of this section. The state
archaeologist may retain the services of a qualified professional archaeologist, a qualified
physical anthropologist, or other appropriate experts for the purpose of gathering information
that the state archaeologist can use to authenticate or identify burial grounds. If probable
Indian burial grounds are to be disturbed or probable Indian remains analyzed, the Indian
Affairs Council must approve the professional archaeologist, qualified anthropologist, or
other appropriate expert. Authentication is at the discretion of the state archaeologist based
on the needs identified in this section or upon request by an agency, a landowner, or other
appropriate authority.
deleted text end
new text begin
(a) Cemeteries shall be assessed according to this subdivision.
new text end
new text begin
(b) The state archaeologist shall implement and maintain a system of records identifying
the location of known, recorded, or suspected cemeteries. The state archaeologist shall
provide access to the records as provided in subdivision 11.
new text end
new text begin
(c) The cemetery condition assessment of non-American Indian cemeteries is at the
discretion of the state archaeologist based on the needs identified in this section or upon
request by an agency, a landowner, or other appropriate authority.
new text end
new text begin
(d) The cemetery condition assessment of American Indian cemeteries is at the discretion
of the Indian Affairs Council based on the needs identified in this section or upon request
by an agency, a landowner, or other appropriate authority.
new text end
new text begin
(e) The cemetery condition assessment of cemeteries that include American Indian and
non-American Indian remains or include remains whose ancestry cannot be determined
shall be assessed at the discretion of the state archaeologist in collaboration with the Indian
Affairs Council based on the needs identified in this section or upon request by an agency,
a landowner, or other appropriate authority.
new text end
new text begin
(f) The state archaeologist and the Indian Affairs Council shall have 90 days from the
date a request is received to conduct a cemetery condition assessment or provide notice to
the requester whether or not a condition assessment of a cemetery is needed.
new text end
new text begin
(g) The state archaeologist and the Indian Affairs Council may retain the services of a
qualified professional archaeologist, a qualified forensic anthropologist, or other appropriate
experts for the purpose of gathering information that the state archaeologist or the Indian
Affairs Council can use to assess or identify cemeteries.
new text end
Subd. 5.
Costdeleted text begin ; use of datadeleted text end .
The cost of deleted text begin authenticationdeleted text end new text begin condition assessmentnew text end , recording,
surveying, and marking deleted text begin burial groundsdeleted text end new text begin cemeteriesnew text end and the cost of identification, analysis,
rescue, and reburial of human remains on public lands or waters shall be the responsibility
of the state or political subdivision controlling the lands or waters. On private lands or waters
these costs shall be borne by the state, but may be borne by the landowner upon mutual
agreement with the state. deleted text begin The state archaeologist must make the data collected for this
activity available using standards adopted by the Office of MN.IT Services and geospatial
technology standards and guidelines published by the Minnesota Geospatial Information
Office. Costs associated with this data delivery must be borne by the state.
deleted text end
Subd. 7.
Remains found outside of recorded cemeteries.
new text begin (a) new text end All unidentified human
remains or burials found outside of deleted text begin recordeddeleted text end cemeteries or unplatted graves or burials found
within recorded cemeteries and in contexts which indicate antiquity greater than 50 years
shall be new text begin treated with utmost respect for all human dignity and new text end dealt with according to the
provisions of this section.
new text begin
(b) If deemed necessary for identification purposes by the Indian Affairs Council,
removed remains shall be studied in a timely and respectful manner by appropriate experts
designated by the Indian Affairs Council.
new text end
new text begin (c) new text end If deleted text begin suchdeleted text end new text begin thenew text end burials are not new text begin American new text end Indian or their ethnic identity cannot be
ascertained, as determined by the state archaeologist, they shall be dealt with in accordance
with provisions established by the state archaeologist and other appropriate authoritynew text begin , as
specified in subdivision 3a, paragraph (e)new text end .
new text begin (d)new text end If deleted text begin suchdeleted text end new text begin thenew text end burials deleted text begin aredeleted text end new text begin include Americannew text end Indiannew text begin remainsnew text end , as determined by the state
archaeologist, deleted text begin efforts shall be made bydeleted text end new text begin they must be dealt with as provided by the provisions
of subdivision 3a, paragraph (d).new text end The state archaeologist and the Indian Affairs Council deleted text begin todeleted text end new text begin
shallnew text end ascertain deleted text begin theirdeleted text end tribal identitydeleted text begin . If their probable tribal identity can be determined and
the remains have been removed from their original context, such remains shall be turned
over to contemporary tribal leaders for disposition.deleted text end new text begin of the remains in consultation with
appropriate experts designated by the Indian Affairs Council.
new text end
new text begin (e)new text end If tribal identity new text begin of the remains new text end cannot be determined, the new text begin American new text end Indian remains
must be dealt with in accordance with provisions established by deleted text begin the state archaeologist anddeleted text end
the Indian Affairs Council deleted text begin if they are from public landdeleted text end . deleted text begin If removed Indian remains are from
private land they shall be dealt with in accordance with provisions established by the Indian
Affairs Councildeleted text end .
deleted text begin
If it is deemed desirable by the state archaeologist or the Indian Affairs Council, removed
remains shall be studied in a timely and respectful manner by a qualified professional
archaeologist or a qualified physical anthropologist before being delivered to tribal leaders
or before being reburied.
deleted text end
new text begin Subd. 7a. new text end
new text begin Landowner responsibilities. new text end
new text begin (a) new text end Application by a landowner for permission
to develop or disturb nonburial areas within deleted text begin authenticateddeleted text end new text begin an assessednew text end or recorded deleted text begin burial
groundsdeleted text end new text begin cemeterynew text end shall be made new text begin to the:
new text end
new text begin (1) new text end deleted text begin to thedeleted text end state archaeologist and other appropriate authority in the case of deleted text begin non-Indiandeleted text end new text begin
non-American Indiannew text end burialsnew text begin ;new text end and
new text begin (2) new text end deleted text begin to thedeleted text end Indian Affairs Council and other appropriate authority in the case of new text begin American
new text end Indian burials.
new text begin (b) new text end Landowners with deleted text begin authenticateddeleted text end new text begin knownnew text end or suspected human deleted text begin burial groundsdeleted text end new text begin cemeteriesnew text end
on their property are obligated to inform prospective buyers of the deleted text begin burial grounddeleted text end new text begin cemeterynew text end .
Subd. 8.
deleted text begin Burial grounddeleted text end new text begin Cemeterynew text end relocation.
No deleted text begin non-Indian burial grounddeleted text end new text begin
non-American Indian cemeterynew text end may be relocated without the consent of the appropriate
authority. No new text begin American new text end Indian deleted text begin burial grounddeleted text end new text begin cemeterynew text end may be relocated unless the request
to relocate is approved by the Indian Affairs Council. When a deleted text begin burial grounddeleted text end new text begin cemeterynew text end is
located on public lands or waters, any burial relocations must be duly licensed under section
138.36 and the cost of removal is the responsibility of and shall be paid by the state or
political subdivision controlling the lands or waters. If deleted text begin burial groundsdeleted text end new text begin cemeteriesnew text end are
deleted text begin authenticateddeleted text end new text begin assessednew text end on private lands, efforts may be made by the state to purchase and
protect them instead of removing them to another location.
Subd. 9.
Interagency cooperation.
new text begin
(a) The state archaeologist and the Indian Affairs
Council shall enter into a memorandum of understanding to coordinate their responsibilities
under this section.
new text end
new text begin (b) new text end The Department of Natural Resources, the Department of Transportation, and all
other state agencies and local governmental units whose activities may be affected, shall
cooperate with the state archaeologist and the Indian Affairs Council to carry out the
provisions of this section.
Subd. 10.
Construction and development plan review.
When deleted text begin human burials are known
or suspected todeleted text end new text begin cemeteriesnew text end existdeleted text begin ,deleted text end on public lands or waters, the state or political subdivision
controlling the lands or waters or, in the case of private lands, the landowner or developer,
shall submit construction and development plans to the state archaeologist for review prior
to the time bids are advertised and prior to any disturbance within the deleted text begin burial areadeleted text end new text begin cemeterynew text end .
If deleted text begin the known or suspected burials aredeleted text end new text begin the cemetery isnew text end thought to be deleted text begin Indiandeleted text end new text begin American Indian,
or the project is within 300 feet of American Indian cemeteries, American Indian burial
features, historic American Indian villages, or historic American Indian cultural featuresnew text end ,
plans shall also be submitted to the Indian Affairs Council. The state archaeologist and the
Indian Affairs Council shall review the plans within deleted text begin 30deleted text end new text begin 45new text end days of receipt and make
recommendations for the preservation in place or removal of the deleted text begin human burialsdeleted text end new text begin cemeterynew text end
or remains, which may be endangered by construction or development activities.
Subd. 11.
Burial sites data.
new text begin (a) new text end Burial sites deleted text begin locational and related data maintained bydeleted text end new text begin
data under the authority ofnew text end the Office of the State Archaeologist deleted text begin and accessible through the
office's "Unplatted Burial Sites and Earthworks in Minnesota" websitedeleted text end new text begin or Indian Affairs
Councilnew text end are security information for purposes of section 13.37. Persons who gain access to
deleted text begin the data maintained on the sitedeleted text end new text begin this datanew text end are subject to liability under section 13.08 and the
penalty established by section 13.09 if they improperly use or further disseminate the data.
new text begin
(b) The Indian Affairs Council or state archaeologist may bring legal action to prosecute
any violation of this subdivision. A violation may be prosecuted by the city or county
attorney or by the attorney general.
new text end
Subd. 12.
Right of entry.
The state archaeologistnew text begin or designeenew text end may enter on property for
the purpose of deleted text begin authenticating burial sites.deleted text end new text begin identifying or assessing cemetery sites. A
designated representative of the Indian Affairs Council may enter on property, in
collaboration with the state archaeologist, for the purpose of identifying or assessing
American Indian cemeteries.new text end Only after obtaining permission from the property owner or
lessee, descendants of persons buried in deleted text begin burial groundsdeleted text end new text begin cemeteriesnew text end covered by this section
may enter the deleted text begin burial groundsdeleted text end new text begin cemeterynew text end for the purpose of conducting religious or
commemorative ceremonies. This right of entry must not unreasonably burden property
owners or unnecessarily restrict their use of the property. new text begin The right of entry cannot be denied
unless an unreasonable burden can be shown by the property owners.
new text end
Subd. 13.
Definitions.
As used in this section, the following terms have the meanings
given.
(a) "Abandoned cemetery" means a cemetery where the cemetery association has
disbanded or the cemetery is neglected and contains marked graves older than 50 years.
(b) "Appropriate authority" means:
(1) the trustees when the trustees have been legally defined to administer deleted text begin burial groundsdeleted text end new text begin
cemetery sitesnew text end ;
(2) the Indian Affairs Council in the case of new text begin American new text end Indian deleted text begin burial groundsdeleted text end new text begin cemetery
sitesnew text end lacking trustees;
(3) the county board in the case of abandoned cemeteries under section 306.243; and
(4) the state archaeologist in the case of deleted text begin non-Indian burial groundsdeleted text end new text begin non-American Indian
cemetery sitesnew text end lacking trustees or not officially defined as abandoned.
(c) "Artifacts" means natural or artificial articles, objects, implements, or other items of
archaeological interest.
(d) deleted text begin "Authenticate"deleted text end new text begin "Assess"new text end means to establish the presence of or high potential deleted text begin of human
burialsdeleted text end new text begin for a cemeterynew text end or human deleted text begin skeletaldeleted text end remains deleted text begin beingdeleted text end located in a discrete area, delimit
the boundaries of deleted text begin human burial groundsdeleted text end new text begin the cemeterynew text end or graves, and attempt to determine
the ethnic, cultural, or religious affiliation of individuals interred.
(e) "Burial" means the organic remnants of the human body that were intentionally
interred as part of a mortuary process.
deleted text begin
(f) "Burial ground" means a discrete location that is known to contain or has high potential
to contain human remains based on physical evidence, historical records, or reliable informant
accounts.
deleted text end
deleted text begin (g)deleted text end new text begin (f)new text end "Cemetery" means a discrete location that is known to contain or intended to be
used for the interment of human remainsnew text begin , or has high potential to contain human remains
based on physical evidence, historical records, or reliable informant accountsnew text end .
deleted text begin (h)deleted text end new text begin (g)new text end "Disturb" means any activity that deleted text begin significantlydeleted text end harms the physical integrity or
setting of a deleted text begin human burial or human burial grounddeleted text end new text begin cemeterynew text end .
deleted text begin (i)deleted text end new text begin (h)new text end "Grave goods" means objects or artifacts directly associated with human burials
or deleted text begin human burial groundsdeleted text end new text begin cemeteriesnew text end that were placed as part of a mortuary ritual at the time
of interment.
deleted text begin (j)deleted text end new text begin (i)new text end "Human remains" means deleted text begin the calcified portion of the human bodydeleted text end new text begin the body of a
deceased person in whole or in parts, regardless of the state of decompositionnew text end , not including
isolated teethdeleted text begin , or cremated remains deposited in a container or discrete featuredeleted text end .
deleted text begin (k)deleted text end new text begin (j)new text end "Identification" means to analyze organic materials to attempt to determine if they
represent human remains and to attempt to establish the ethnic, cultural, or religious
affiliations of such remains.
new text begin
(k) "American Indian cemetery" means a discrete location that is known to contain or
has a high potential to contain American Indian human remains based on physical evidence,
historical records, or reliable informant accounts.
new text end
(l) "Marked" means a burial that has a recognizable tombstone or obvious grave marker
in place or a legible sign identifying an area as a deleted text begin burial ground ordeleted text end cemetery.
(m) "Qualified deleted text begin physicaldeleted text end new text begin forensicnew text end anthropologist" means a specialist in identifying human
remains who holds an advanced degree in new text begin forensic new text end anthropology or a closely related field.
(n) "Qualified professional archaeologist" means an archaeologist who meets the United
States Secretary of the Interior's professional qualification standards in Code of Federal
Regulations, title 36, part 61, appendix A, or subsequent revisions.
(o) "Recorded cemetery" means a cemetery that has a surveyed plat filed in a county
recorder's office.
(p) "State" or "the state" means the state of Minnesota or an agency or official of the
state acting in an official capacity.
(q) "Trustees" means the recognized representatives of the original incorporators, board
of directors, or cemetery association.