§ 171. Discovery and disposition of human remains and funerary
objects. 1. Definitions. As used in this section:

(a) "Burial site" means any location in which human remains are
interred, which is not a cemetery subject to provisions of the
not-for-profit corporation law, the religious corporations law, the
general municipal law, the county law, the town law or the village law.

(b) "Committee" means the Native American burial site review committee
created by subdivision three of this section.

(c) "Culturally-affiliated group" means any group, including a Native
American Nation or tribe, whose past or present government, or
traditional culture or religion, was or is affiliated with human remains
or funerary objects which are the subject of this section.

(d) "Forensic anthropologist or bioarchaeologist" means a person
qualified in the medicolegal or osteological investigation/examination
of human skeletal remains.

(e) "Funerary objects" means any item or items reasonably believed to
have been placed with human remains at the time of burial, including but
not limited to burial markers, items of personal adornment, vessels,
beads, tools, implements, ceremonial objects and other artifacts.

(f) "Human remains" means the remains of any part of the body of a
deceased person, excluding teeth.

(g) "Lineal descendant" means a genealogical descendant established by
oral tradition, traditional Indigenous knowledge, or written record.

(h) "Native American Nation or tribe" means any Native American tribe,
nation or group.

(i) "State archaeologist" means the person appointed to such office
pursuant to section two hundred thirty-five of the education law.

2. Applicability. (a) This section shall apply to all lands within the
state except for lands located upon any Native American territory or
reservation located wholly or partly within the state.

(b) Subdivisions three, four, five, six, and seven of this section
shall not apply to any project that has been reviewed pursuant to
section 14.09 of the parks, recreation, and historic preservation law or
to state participation in any review conducted pursuant to section 106
of the National Historic Preservation Act. If any human remains are
discovered during the project, the applicant shall immediately notify
the state archaeologist.

3. Native American burial site review committee. (a) There is hereby
established a Native American burial site review committee consisting of
the following:

(i) one member to be appointed by each of the Native American Nations
or tribes recognized by the state;

(ii) the state archaeologist;

(iii) a forensic anthropologist or bioarchaeologist appointed by the
executive director of the New York state museum;

(iv) the chair of the human remains committee or other designee of the
New York Archaeological Council; and

(v) one member with expertise in the field of historic preservation
appointed by the commissioner of the office of parks, recreation and
historic preservation.

(b) The committee shall elect a chairperson from among its members.
The members who are not public employees shall be reimbursed by the
state for their reasonable, necessary expenses incurred in the
performance of committee functions. Three-fifths of the members of the
committee shall constitute a quorum for the purpose of conducting
business. A majority vote of all members who have been appointed or who
are serving ex-officio shall be necessary for action. Any vacancy shall
be filled in the same manner as the original appointment.

(c) It shall be the function of the committee to determine the lineal
descendants and/or culturally-affiliated groups for Native American
human remains and funerary objects subject to this section, and to
provide notice to such descendants and/or groups as provided in this
section. The state archaeologist shall prepare, and the committee shall
adopt, standard procedures for determining the lineal descendants and
culturally-affiliated groups for human remains as required by this
section, including acceptable types of proof of such descent and
affiliation. Such procedures shall include dispute resolution methods to
resolve disagreements among the committee members.

4. Discovery of burial site; reporting requirements. (a) Any person
who in the course of any ground-disturbing activity discovers a burial
site, human remains or funerary objects shall immediately cease any
further disturbance of such site, remains or objects, and shall
immediately report such discovery to the coroner or medical examiner in
the county in which the remains were discovered. The coroner or medical
examiner shall, within ninety-six hours, determine whether any actions
are required pursuant to the provisions of article seventeen-A of the
county law. If any such remains appear to the coroner or medical
examiner to be more than fifty years old, the coroner or medical
examiner shall immediately provide notice of the discovery of such
remains to the state archaeologist, who shall in turn convey such notice
to the other members of the committee. If no action is required under
article seventeen-A of the county law, or once such actions are
undertaken and no further action is required, the state archaeologist
and the committee may commence their inspection or examination of the
remains or objects. Any inspection or examination shall be made in situ
except as necessary to comply with such article seventeen-A, this
section, or to determine the age of the remains. The state archaeologist
and the committee may use ground penetrating radar or other pertinent
technology or equipment on any portion of the project site that has yet
to be disturbed to determine if any other remains exist within the
project site.

(b) The state archaeologist, or a registered archeologist or
registered professional archeologist as may be designated by the state
archaeologist, shall, upon receiving notice from a coroner or medical
examiner of the discovery of human remains, inspect the site, remains
and/or objects which are the subject of such notice. Within ten days of
receiving such notice, the state archaeologist shall prepare a report
thereon and provide a copy of the report to the committee and to the
property owner. The report shall be based upon physical examination of
the discovered burial site, remains and/or objects, and shall contain
the state archaeologist's conclusion as to whether such site, remains
and/or objects may be of Native American origin. In the event the state
archaeologist determines there is a reasonable possibility the site
contains multiple remains, an additional period of ten days may be
provided for assessment by the state archaeologist in consultation with
the culturally-affiliated group to determine the parameters of the site.
In preparing the report, the state archaeologist may seek and obtain
assistance from any employee of the regents, from the committee, and
from the office of parks, recreation and historic preservation.

(c) The committee may recommend to the office of parks, recreation,
and historic preservation that the site should be designated as a place
of historic interest under section twelve-a of the Indian law.

5. Determination of and notification to lineal descendants or
culturally-affiliated groups. (a) If the state archaeologist, the
forensic anthropologist or bioarchaeologist, and the committee agree
that the burial site does not wholly or partly contain human remains or
funerary objects that are of Native American origin, it shall be the
responsibility of the state archaeologist to determine, as soon as
practicable, whether there are any reasonably ascertainable lineal
descendants or culturally-affiliated groups with respect to such site,
remains or objects and, immediately upon making such determination, to
provide notice to such descendants or groups of the reported discovery.

(b) If the state archaeologist, the forensic anthropologist or
bioarchaeologist, and the committee agree that the burial site wholly or
partly contains human remains or funerary objects that may be of Native
American origin, it shall be the responsibility of the committee to
determine the lineal descendants or culturally-affiliated groups. Such
determination shall be made as soon as practicable after the committee
receives a report from the state archaeologist concerning the burial
site. Immediately upon making such determination, the committee shall
provide notification to such descendants or groups of the reported
discovery.

(c) The committee shall have stewardship of Native American human
remains and funerary objects from the time it receives notification from
the state archaeologist pursuant to subdivision four of this section
until the lineal descendants and/or culturally-affiliated groups receive
notification from the committee pursuant to this subdivision, at which
time such lineal descendants and/or culturally-affiliated groups shall
have the right of possession and stewardship of such remains and
objects. Upon notification to such lineal descendants or
culturally-affiliated groups pursuant to this subdivision, ownership of
and responsibility for the human remains and funerary objects shall vest
exclusively in such descendants or groups, which shall have authority to
determine their disposition subject to the provisions of this section.

(d) The state archaeologist shall have stewardship of non-Native
American human remains and funerary objects from the time he or she
receives notification from the coroner or medical examiner pursuant to
subdivision four of this section until the lineal descendants and/or
culturally-affiliated groups receive notification from the state
archaeologist pursuant to this paragraph, at which time such lineal
descendants and/or culturally-affiliated groups shall have the right of
possession and stewardship of such remains and objects. Upon
notification to such lineal descendants or culturally-affiliated groups
pursuant to this subdivision, ownership of and responsibility for the
human remains and funerary objects shall vest exclusively in such
descendants or groups, which shall have authority to determine their
disposition subject to the provisions of this section.

(e) Where a burial site contains both Native American and non-Native
American human remains or funerary objects, the committee shall be
responsible for the Native American burials at the site, and the state
archaeologist shall be responsible for all other burials at the site.
Once stewardship of each is determined, the procedures established in
paragraphs (c) and (d) of this subdivision shall apply.

6. Disposition of remains and objects. (a) Within ten days after
receiving notification from the state archaeologist to lineal
descendants or a culturally-affiliated group, other than a Native
American Nation or tribe, of the discovery of a burial site, the
descendants or group shall advise the state archaeologist in writing as
to the preferred disposition of the discovered remains or objects, which
may include a request to protect the burial site and keep the remains
interred where they were found. The state archaeologist shall consult
with the property owner to try to facilitate the request of the lineal
descendants or culturally-affiliated group.

(b) Within sixty days after receiving notification from the committee
to a lineal descendant or culturally-affiliated group of the discovery
of a burial site, the descendants or group shall advise the committee in
writing as to the preferred disposition of the discovered remains or
objects, which may include a request to protect the burial site and keep
the remains interred where they were found. The committee shall consult
with the property owner to try to facilitate the request of the lineal
descendants or culturally-affiliated group.

(c) No later than ten days after receiving the report from the state
archaeologist pursuant to subdivision four of this section, the property
owner shall inform the state archaeologist of their decision with
respect to the interment of the remains on their property. The report
from the state archaeologist to the property owner shall clearly include
that the property owner has ten days to notify the state archaeologist
of their decision. If a property owner fails to notify the state
archaeologist of their decision, the state archaeologist or the
committee, as appropriate, shall abide by the decision of the lineal
descendants or culturally-affiliated group.

(d) Only the state archaeologist, a registered archaeologist, or a
registered professional archaeologist may touch or handle any remains or
funerary objects.

7. Disposition of human remains and funerary objects, generally. (a)
The property owner, their agents, assignees, employees, family members,
friends, acquaintances, or any other individuals acting on behalf of
such property owner, other than the state archeologist or a registered
archeologist or a registered professional archaeologist hired by the
property owner and acting pursuant to paragraph (d) of this subdivision,
are strictly prohibited from moving, relocating, transferring, selling,
possessing, touching, handling, or otherwise intentionally disturbing,
in any manner, all human remains and funerary objects that are
discovered on site. Except as necessary to carry out the purposes of
this section, burial sites, human remains and funerary objects shall
remain undisturbed after discovery and during the process established by
this section.

(b) While the disposition of the remains shall be determined by the
lineal descendants or culturally-affiliated group, and the property
owner, the preferred disposition as a matter of policy is to have the
remains stay interred where they are discovered.

(c) (i) If the lineal descendants, or culturally-affiliated group, and
the property owner agree that the remains shall stay interred, the
committee or state archaeologist, as appropriate, shall establish a plan
of action for the preservation and protection of the remains.

(ii) If the lineal descendants or culturally-affiliated group requests
that the remains be excavated and moved to a different location, the
committee or state archaeologist, as appropriate, shall establish and
implement a plan of action for the respectful, dignified excavation and
removal of the remains.

(iii) If the lineal descendants or culturally-affiliated group advise
that the remains stay interred, but the property owner notifies of their
decision, as provided in this section, that the remains should be
removed, the committee or state archaeologist, as appropriate, shall
establish and implement a plan of action for the respectful, dignified
excavation and removal of the remains. Such plan shall not be
inconsistent with the provisions of this section. The committee or state
archaeologist may, prior to the execution of the plan of action, consult
with the property owner in an attempt to realize the request of the
lineal descendants or culturally-affiliated group. The committee or
state archaeologist may use a mediator, at no cost to the property owner
unless mediation is requested by the property owner, as part of this
process.

(d) (i) If the plan of action has not been implemented within ninety
days of the notification to the state archaeologist by the coroner or
medical examiner pursuant to paragraph (a) of subdivision four of this
section, and any additional time provided pursuant to paragraph (b) of
subdivision four of this section, the property owner may decide to
excavate and remove the remains, provided that they shall engage a
registered archeologist or a registered professional archaeologist,
registered with the Register of Professional Archaeologists and who
practices in the field of bioarchaeology or forensic anthropology, to
excavate and remove the remains in a respectful and dignified manner
that is not inconsistent with the provisions of this section, and
provided further that the property owner may request the state
archeologist to perform any such excavation or removal. The
culturally-affiliated group shall have the right to have a cultural
monitor on site prior to and during any excavation and removal of human
remains or funerary objects. Failure of the culturally-affiliated group
to have a monitor on site shall not be grounds to prohibit, prevent, or
pause any excavation, removal, or other conduct as provided in this
section.

(ii) If the plan of action has been substantially implemented but not
completed within the ninety-day period, and any additional time provided
pursuant to paragraph (b) of subdivision four of this section, the
committee or state archaeologist may have one additional ten-day period
to complete the excavation and removal. The state archaeologist, in
consultation with the committee, where appropriate, shall determine
whether the plan of action has been substantially implemented.

(iii) Any excavation and removal caused by the property owner pursuant
to this paragraph shall be done at the expense of the property owner and
shall be performed and supervised by the registered archaeologist, or a
registered professional archaeologist, hired by the property owner
pursuant to this subdivision, provided that the property owner may
request the state archeologist to complete any such excavation or
removal even after the ninety-day implementation period or any
additional time provided in this section has expired. The
culturally-affiliated group may select a cultural monitor to observe the
work. Such archaeologist shall review the established plan of action
with the state archaeologist or the committee, as appropriate, and act
in accordance with that plan. For the purposes of this paragraph, only
the state archaeologist, as provided in this section, or the registered
archaeologist or registered professional archaeologist hired to perform
the excavation pursuant to this subdivision may have physical contact
with or otherwise disturb the remains or burial site.

(iv) The state archaeologist or committee shall make themselves
available to the registered archaeologist or registered professional
archaeologist forthwith for the purposes of discussing the established
plan of action for the site. If the state archaeologist or committee
fails to make themselves available forthwith, the registered
archaeologist or registered professional archaeologist may proceed with
the excavation and removal.

(v) If no plan of action has been established prior to the expiration
of the ninety-day period, and any additional time provided pursuant to
paragraph (b) of subdivision four of this section, the registered
archaeologist or registered professional archaeologist may proceed with
the excavation and removal in a professional, respectful, dignified
manner that is not inconsistent with the provisions of this section.

(vi) Any remains or funerary objects excavated from the site as a
result of the implementation of the process established by this
paragraph shall be deposited with the New York state museum for
disposition.

(vii) Notwithstanding any conflicting provision of this section, the
state archeologist may at any time monitor and observe any excavation
and removal performed pursuant to this section.

(e) If the state archaeologist and the committee have been unable to
identify the lineal descendants or culturally-affiliated group for human
remains or funerary objects, the state archaeologist shall take
stewardship of the remains and shall make the recommendation for their
disposition in accordance with the provisions of this section.

(f) Notwithstanding any conflicting provision of paragraph (d) of this
subdivision, for project sites that contain the remains of six or more
individuals, if the state archaeologist determines that additional time
is necessary for the excavation of such site, an additional thirty-day
period may be added before the remains can be excavated and removed by
the property owner. If the state archeologist continues to find that
additional time is necessary, the period before remains can be excavated
and removed by the property owner may be extended multiple times in
increments of thirty days. The state archaeologist must provide a copy
of each such determination to the property owner in writing. The
property owner may bring an action pursuant to article seventy-eight of
the civil practice law and rules to review the determination of the
state archaeologist pursuant to this paragraph.

8. Penalties. (a) Any person who fails to report the discovery of a
burial site, human remains or funerary objects as required by
subdivision four of this section shall be guilty of a class B
misdemeanor, as defined in the penal law.

(b) Any person other than the state archaeologist, or a person or
group with a right to remove or a right of possession or stewardship
pursuant to this section, or a designee thereof, who intentionally
removes human remains or funerary objects from a burial site shall be
guilty of a class A misdemeanor, as defined in the penal law.

(c) Any person (i) who knowingly defaces or destroys a burial site,
human remains or funerary objects, or (ii) who, knowing that a burial
site, human remains, or funerary objects exist causes another person to
deface or destroy such burial site, human remains, or funerary objects,
or (iii) who possesses human remains or funerary objects with intent to
sell such remains or artifacts, or (iv) who sells or attempts to sell
human remains or funerary objects, except when authorized by law, shall
be guilty of a class E felony, as defined in the penal law.

9. Enforcement. The attorney general or any aggrieved party, including
the committee and any lineal descendant or culturally-affiliated group,
may bring an action in supreme court in the judicial district where the
remains or objects covered by this section are located to enjoin
violations or threatened violations of this section, and to recover such
remains or objects.