Minnesota Legislature
SF 2226
2nd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am
Current Version - 2nd Engrossment
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A bill for an act
relating to state government; clarifying private cemeteries; amending Minnesota
Statutes 2006, section 307.08.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2006, section 307.08, is amended to read:
307.08 DAMAGES; ILLEGAL MOLESTATION OF HUMAN REMAINS;
BURIALS; CEMETERIES; PENALTYnew text begin ; AUTHENTICATIONnew text end .
Subdivision 1.
Legislative intent; scope.
It is a declaration and statement of
legislative intent that all human burials deleted text begin anddeleted text end new text begin ,new text end human deleted text begin skeletaldeleted text end remainsnew text begin , and human burial
groundsnew 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 deleted text begin ordeleted text end new text begin ,new text end human deleted text begin skeletaldeleted text end remainsnew text begin , or human burial
groundsnew text end found on or in all public or private lands or waters in Minnesota.
Subd. 2.
Felony; gross misdemeanor.
new text begin (a) new text end A person who intentionally, willfully,
and knowingly new text begin does any of the following is guilty of a felony:
new text end
new text begin (1) new text end destroys, mutilates,new text begin ornew text end injuresnew text begin human burials or human burial grounds; or
new text end
new text begin (2) without the consent of the appropriate authoritynew text end , disturbsdeleted text begin ,deleted text end new text begin human burial groundsnew text end
or removes human deleted text begin skeletaldeleted text end remains deleted text begin or human burial grounds, is guilty of a felonydeleted text end .
new text begin (b)new text end A person whonew text begin , without the consent of the appropriate authority and the
landowner, new text end intentionally, willfully, deleted text begin ordeleted text end new text begin andnew text end knowinglynew text begin does any of the following is guilty
of a gross misdemeanor:
new text end
new text begin (1)new text end removes any tombstone, monument, or structure placed in any public or private
cemetery or deleted text begin unmarkeddeleted text end new text begin authenticatednew text end human burial grounddeleted text begin ,deleted text end new text begin ;new text end or
new text begin (2) removesnew text end 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 deleted text begin thedeleted text end new text begin a public
or privatenew text end cemetery ornew text begin authenticated humannew text end burial grounddeleted text begin , and a person who, without
authority from the trustees, state archaeologist, or Indian affairs council,deleted text end new text begin ; or
new text end
new text begin (3)new text end discharges any firearms upon or over the grounds of any public or private
cemetery or authenticated deleted text begin and identified Indiandeleted text end burial grounddeleted text begin , is guilty of a gross
misdemeanordeleted text end .
Subd. 3.
Protective posting.
deleted text begin Everydeleted text end new text begin Upon the agreement of the appropriate authority
and the landowner, annew text end authenticated deleted text begin and identifieddeleted text end new text begin or recorded humannew text end burial ground 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 of Indian burials or at the discretion
of the state archaeologist in the case of non-Indian burials.new text begin This subdivision does not
require posting of a burial ground. The size, description, location, and information on
the signs used for protective posting must be approved by the appropriate authority and
the landowner.
new text end
Subd. 3a.
Authentication.
The state archaeologist shall authenticate all burial
deleted text begin sitesdeleted text end new text begin groundsnew text end for purposes of this section deleted text begin and may enter on property for the purpose of
authenticating burial sites. Only after obtaining written permission from the property
owner or lessee, descendants of persons buried in burial sites covered by this section may
enter the burial sites for the purpose of conducting religious ceremonies. This right of
entry must not unreasonably burden property owners or unnecessarily restrict their use of
the propertydeleted text end .new text begin 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.
new text end
deleted text begin Subd. 4. deleted text end
deleted text begin State archaeologist. deleted text end
deleted text begin
The state shall retain the services of a qualified
professional archaeologist, approved by the state archaeologist and the Indian Affairs
Council, for the purpose of gathering information to authenticate or identify Indian burial
grounds when requested by a concerned scientific or contemporary Indian ethnic group,
when Indian burials are known or suspected to exist on public lands or waters controlled
by the state or political subdivision.
deleted text end
Subd. 5.
Cost; use of data.
The cost of authentication,new text begin recording, surveying, and
marking burial grounds and the cost ofnew text end identification, deleted text begin marking, anddeleted text end new text begin analysis,new text end rescue
deleted text begin of unmarked or unidentified burial grounds or burialsdeleted text end new text begin , and reburial of human remains
on public lands or watersnew text end shall be the responsibility of the statenew text begin or political subdivision
controlling the lands or watersnew text end . new text begin 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.new text end The
data collected by this activity that has common value for deleted text begin naturaldeleted text end resource planning must
be provided and integrated into the Minnesota land management information system's
geographic and summary databases according to published data compatibility guidelines.
Costs associated with this data delivery must be borne by the state.
deleted text begin Subd. 6. deleted text end
deleted text begin Approval of signs. deleted text end
deleted text begin
The size, description and information on the signs must
be approved by the Minnesota State Historical Society.
deleted text end
Subd. 7.
Remains found outside ofnew text begin recordednew text end cemeteries.
All unidentified
human remains or burials found outside of deleted text begin platted,deleted text end recordeddeleted text begin , or identifieddeleted text end cemeteriesnew text begin
or unplatted graves or burials found within recorded cemeteriesnew text end and in contexts which
indicate antiquity greater than 50 years shall be dealt with according to the provisions of
this section. If such burials are not 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 archaeologistnew text begin and other appropriate authoritynew text end . If such
burials are Indian, as determined by the state archaeologist, efforts shall be made by the
state archaeologist and the Indian Affairs Council to ascertain their tribal identity. If their
probable tribal identity can be determinednew text begin and the remains have been removed from their
original contextnew text end , such remains shall deleted text begin at the discretion of the state archaeologist and Indian
Affairs Council,deleted text end be turned over to contemporary tribal leaders for disposition. deleted text begin If it is
deemed desirable by the state archaeologist or the Indian Affairs Council, such remains
shall be studied by a qualified professional archaeologist before being delivered to the
tribal leaders.deleted text end If tribal identity cannot be determined, the Indian remains must be dealt
with in accordance with provisions established by the state archaeologist and the Indian
Affairs Councilnew text begin if they are from public land. If removed Indian remains are from private
land they shall be dealt with in accordance with provisions established by the Indian
Affairs Council. 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. Application by a landowner for permission to
develop or disturb nonburial areas within authenticated or recorded burial grounds shall be
made to the state archaeologist and other appropriate authority in the case of non-Indian
burials and to the Indian Affairs Council and other appropriate authority in the case of
Indian burials. Landowners with authenticated or suspected human burial grounds on their
property are obligated to inform prospective buyers of the burial groundnew text end .
Subd. 8.
Burial ground relocation.
new text begin No non-Indian burial ground may be relocated
without the consent of the appropriate authority. new text end No deleted text begin authenticated and identifieddeleted text end Indian
burial ground may be relocated unless the request to relocate is approved by the Indian
Affairs Council. When deleted text begin the Indiandeleted text end new text begin anew text end burial ground is located on public lands or waters,new text begin any
burial relocations must be duly licensed under section 138.36 andnew text end 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 large Indiandeleted text end burial grounds are deleted text begin involveddeleted text end new text begin authenticated on private landsnew text end ,
efforts deleted text begin shalldeleted text end new text begin maynew text end be made by the state to purchase and protect them instead of removing
them to another location.
Subd. 9.
Interagency cooperation.
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 Indiandeleted text end new text begin humannew text end
burials are known or suspected to exist, on public lands or waters, the state or political
subdivision controlling the lands or watersnew text begin or, in the case of private lands, the landowner
or developer,new text end shall submit construction and development plans to the state archaeologist
deleted text begin and the Indian Affairs Councildeleted text end for review prior to the time bids are advertisednew text begin and prior to
any disturbance within the burial area. If the known or suspected burials are thought to be
Indian, plans shall also be submitted to the Indian Affairs Councilnew text end . The state archaeologist
and the Indian Affairs Council shall deleted text begin promptlydeleted text end review the plansnew text begin within 30 days of receiptnew text end
and make recommendations for the preservationnew text begin in placenew text end or removal of the human burials
or remains, which may be endangered by construction or development activities.
Subd. 11.
Burial sites data.
Burial sites locational and related data maintained
by the Office of the State Archaeologist and accessible through the office's "Unplatted
Burial Sites and Earthworks in Minnesota" Web site are security information for purposes
of section 13.37. Persons who gain access to the data maintained on the site 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 Subd. 12. new text end
new text begin Right of entry. new text end
new text begin
The state archaeologist may enter on property for the
purpose of authenticating burial sites. Only after obtaining permission from the property
owner or lessee, descendants of persons buried in burial grounds covered by this section
may enter the burial grounds 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 end
new text begin Subd. 13. new text end
new text begin Definitions. new text end
new text begin
As used in this section, the following terms have the
meanings given.
new text end
new text begin
(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.
new text end
new text begin
(b) "Appropriate authority" means:
new text end
new text begin
(1) the trustees when the trustees have been legally defined to administer burial
grounds;
new text end
new text begin
(2) the Indian Affairs Council in the case of Indian burial grounds lacking trustees;
new text end
new text begin
(3) the county board in the case of abandoned cemeteries under section 306.243; and
new text end
new text begin
(4) the state archaeologist in the case of non-Indian burial grounds lacking trustees
or not officially defined as abandoned.
new text end
new text begin
(c) "Artifacts" means natural or artificial articles, objects, implements, or other
items of archaeological interest.
new text end
new text begin
(d) "Authenticate" means to establish the presence of or high potential of human
burials or human skeletal remains being located in a discrete area, delimit the boundaries
of human burial grounds or graves, and attempt to determine the ethnic, cultural, or
religious affiliation of individuals interred.
new text end
new text begin
(e) "Burial" means the organic remnants of the human body that were intentionally
interred as part of a mortuary process.
new text end
new 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.
new text end
new text begin
(g) "Cemetery" means a discrete location that is known to contain or intended to be
used for the internment of human remains.
new text end
new text begin
(h) "Disturb" means any activity that significantly harms the physical integrity or
setting of a human burial or human burial ground.
new text end
new text begin
(i) "Grave goods" means objects or artifacts directly associated with human burials
or human burial grounds that were placed as part of a mortuary ritual at the time of
internment.
new text end
new text begin
(j) "Human remains" means the calcified portion of the human body, not including
isolated teeth, or cremated remains deposited in a container or discrete feature.
new text end
new text begin
(k) "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 end
new text begin
(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 burial ground or cemetery.
new text end
new text begin
(m) "Qualified physical anthropologist" means a specialist in identifying human
remains who holds an advanced degree in anthropology or a closely related field.
new text end
new text begin
(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.
new text end
new text begin
(o) "Recorded cemetery" means a cemetery that has a surveyed plat filed in a
county recorder's office.
new text end
new text begin
(p) "State" or "the state" means the state of Minnesota or an agency or official of the
state acting in an official capacity.
new text end
new text begin
(q) "Trustees" means the recognized representatives of the original incorporators,
board of directors, or cemetery association.
new text end