BILL REQ. #:  S-2340.3 

READ FIRST TIME 02/28/07.   

     AN ACT Relating to human remains; adding new sections to chapter 68.60 RCW; adding a new section to chapter 27.44 RCW; creating a new section; prescribing penalties; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 68.60 RCW to read as follows:
     (1) Apart from any criminal prosecution, any person with an interest in a grave or cemetery that has been disturbed shall have a civil action to secure an injunction, damages, or other appropriate relief against any person who is alleged to have violated RCW 68.60.050. The action must be brought within two years of the discovery of the violation by the plaintiff. The action may be filed in the superior court of the county in which the grave or cemetery is located, or in the superior court of the county within which the defendant resides.
     (2) Any conviction pursuant to RCW 68.60.050 shall be prima facie evidence in an action brought under this section.
     (3) If the plaintiff prevails:
     (a) The court may award reasonable attorneys' fees to the plaintiff;
     (b) The court may grant injunctive or such other equitable relief as is appropriate, including forfeiture of any human remains or property acquired or equipment used in the violation. The court shall order the disposition of any items forfeited as the court sees fit, including the reinterment of human remains;
     (c) The plaintiff shall recover imputed damages of five hundred dollars or actual damages, whichever is greater. Actual damages include special and general damages, which include damages for emotional distress;
     (d) The plaintiff may recover punitive damages upon proof that the violation was willful. Punitive damages may be recovered without proof of actual damages. All punitive damages shall be paid by the defendant to the department of archaeology and historic preservation for the purposes of preserving non-Indian graves and cemeteries and to cover the cost of reinterment expenses by the department; and
     (e) An award of imputed or punitive damages may be made only once for a particular violation by a particular person, but shall not preclude the award of such damages based on violations by other persons or on other violations.
     (4) If the defendant prevails, the court may award reasonable attorneys' fees to the defendant.

NEW SECTION.  Sec. 2   A new section is added to chapter 27.44 RCW to read as follows:
     (1) Any person who discovers human remains, graves, or a cemetery shall immediately report the discovery to law enforcement officials. This includes inadvertent discovery through any activity, including construction, mining, logging, or agricultural activity.
     (2) The law enforcement officials, medical examiner, or county coroner shall determine if the human remains are evidence of a crime, and whether the discovery contains Indian or non-Indian human remains or graves. Within forty-eight hours of these determinations, the law enforcement officials, medical examiner, or the county coroner shall report the discovery to the department of archaeology and historic preservation.
     (3) If the discovery contains native Indian human remains, graves, or cemeteries, the medical examiner or county coroner shall promptly notify the affected Indian tribes of the discovery.

NEW SECTION.  Sec. 3   A new section is added to chapter 68.60 RCW to read as follows:
     (1) Any person who discovers human remains, graves, or a cemetery shall immediately report the discovery to law enforcement officials. This includes inadvertent discovery through any activity, including construction, mining, logging, or agricultural activity.
     (2) The law enforcement officials, medical examiner, or county coroner shall determine if the human remains are evidence of a crime, and whether the discovery contains Indian or non-Indian human remains or graves. Within forty-eight hours of these determinations, the law enforcement officials, medical examiner, or the county coroner shall report the discovery to the department of archaeology and historic preservation.
     (3) If the discovery contains native Indian human remains, graves, or cemeteries, the medical examiner or county coroner shall promptly notify the affected Indian tribes of the discovery.

NEW SECTION.  Sec. 4   Any person who intentionally fails to report the discovery of human remains, graves, or a cemetery under section 2 or 3 of this act is guilty of a misdemeanor.

NEW SECTION.  Sec. 5   A joint select legislative task force on human remains is established, with members as provided in this section. The task force shall consult with all interested Indian tribes throughout the state.
     (1) The task force shall include four members of the Washington state legislature, one from each caucus in the senate and the house of representatives as designated by each caucus. The task force shall also include the director, or his or her designee, of the department of archaeology and historic preservation, the department of licensing, and the governor's office of Indian affairs.
     (2) The governor shall appoint a chair to the task force who has experience in intergovernmental relations with the Indian tribes of Washington.
     (3) The task force shall study the issues surrounding the discovery of human remains, both Indian and non-Indian. The task force shall examine the legal processes used to dedicate graves and human remains as cemeteries, the legal process of decertifying a cemetery, and the legal process to permit the removal of human remains from property. The task force shall make findings and recommendations on how to ensure that all discoveries of human remains are reported, and how to ensure that all human remains, graves, and cemeteries are treated equally and with the respect due to a finite, irreplaceable cultural resource of the people of Washington.
     (4) Legislative members of the task force must be reimbursed for travel expenses in accordance with RCW 44.04.120. Nonlegislative members shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.
     (5) Staff support for the task force must be provided by senate committee services.
     (6) The task force shall report its findings and recommendations to the legislature by December 2007.
     (7) This section expires December 31, 2007.