BILL REQ. #:  H-0171.3 

Prefiled 01/08/09. Read first time 01/12/09.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to human remains; amending RCW 68.50.645, 27.44.055, 43.334.075, and 68.60.055; adding a new section to chapter 27.44 RCW; adding a new section to chapter 68.60 RCW; adding new sections to chapter 43.334 RCW; and providing expiration dates.

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

Sec. 1   RCW 68.50.645 and 2008 c 275 s 1 are each amended to read as follows:
     (1) It is the duty of every person who knows of the existence and location of skeletal human remains to notify the coroner and local law enforcement in the most expeditious manner possible, unless such person has good reason to believe that such notice has already been given. Any person knowing of the existence of skeletal human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice to the coroner and local law enforcement, is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination of whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such human remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the department of archaeology and historic preservation within two business days. The department will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the department must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the department. A notification to tribes of a finding of such nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of nonforensic remains. If the state anthropologist cannot determine if the remains are Indian, the anthropologist must make a determination whether the nonforensic skeletal human remains are ancient. If the remains are determined to be ancient, the remains will be presumed to be Indian.
     (d) If the remains are determined to be Indian, the department must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff. Early notification to Indian tribes is encouraged and nothing in this section is intended to preclude the coroner, the department, or other parties from directly providing affected tribes with immediate notification of the discovery of nonforensic skeletal human remains.
     (((d))) (e) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (f) If the nonforensic skeletal human remains are determined to be Indian, the remains will be reinterred at the site of discovery unless the tribe of origin indicates otherwise.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the department maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section ((constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe)) precludes individuals who establish that they are lineal descendants of the person whose remains have been discovered from making a claim to the remains.

Sec. 2   RCW 27.44.055 and 2008 c 275 s 2 are each amended to read as follows:
     (1) Any person who discovers skeletal human remains must notify the coroner and local law enforcement in the most expeditious manner possible. Any person knowing of the existence of human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice thereof is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the department of archaeology and historic preservation within two business days. The department will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the department must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the department. A notification to tribes of a finding of nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of such nonforensic remains. If the state anthropologist cannot determine if the remains are Indian, the anthropologist must make a determination whether the nonforensic skeletal human remains are ancient. If the remains are determined to be ancient, the remains will be presumed to be Indian.
     (d) If the remains are determined to be Indian, the department must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff. Early notification to Indian tribes is encouraged and nothing in this section is intended to preclude the coroner, the department, or other parties from directly providing affected tribes with immediate notification of the discovery of nonforensic skeletal human remains.
     (((d))) (e) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (f) If the nonforensic skeletal human remains are determined to be Indian, the remains will be reinterred at the site of discovery unless the tribe of origin indicates otherwise.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the department maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section ((constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe)) precludes individuals who establish that they are lineal descendants of the person whose remains have been discovered from making a claim to the remains.

Sec. 3   RCW 43.334.075 and 2008 c 275 s 4 are each amended to read as follows:
     (1) The director shall appoint a state physical anthropologist. At a minimum, the state physical anthropologist must have a doctorate in either archaeology or anthropology and have experience in forensic osteology or other relevant aspects of physical anthropology and must have at least one year of experience in laboratory reconstruction and analysis. A medical degree with archaeological experience in addition to the experience required may substitute for a doctorate in archaeology or anthropology.
     (2) The state physical anthropologist has the primary responsibility of investigating, preserving, and, when necessary, removing and reinterring discoveries of nonforensic skeletal human remains. The state physical anthropologist is available to any local governments or any federally recognized tribal government within the boundaries of Washington to assist in determining whether discovered skeletal human remains are forensic or nonforensic. Any removal or reinterring of human remains that are determined to be Indian shall be carried out under the control and supervision of the tribe of origin pursuant to chapters 27.44, 68.50, and 68.60 RCW.
     (3) The director shall hire staff as necessary to support the state physical anthropologist to meet the objectives of this section.
     (4) For the purposes of this section, "forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.

Sec. 4   RCW 68.60.055 and 2008 c 275 s 3 are each amended to read as follows:
     (1) Any person who discovers skeletal human remains shall notify the coroner and local law enforcement in the most expeditious manner possible. Any person knowing of the existence of skeletal human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice thereof is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the department of archaeology and historic preservation within two business days. The department will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the department must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the department. A notification to tribes of a finding of such nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of such nonforensic remains. If the state anthropologist cannot determine if the remains are Indian, the anthropologist must make a determination whether the nonforensic skeletal human remains are ancient. If the remains are determined to be ancient, the remains will be presumed to be Indian.
     (d) If the remains are determined to be Indian, the department must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff. Early notification to Indian tribes is encouraged and nothing in this section is intended to preclude the coroner, the department, or other parties from directly providing affected tribes with immediate notification of the discovery of nonforensic skeletal human remains.
     (((d))) (e) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (f) If the nonforensic skeletal human remains are determined to be Indian, the remains will be reinterred at the site of discovery unless the tribe of origin indicates otherwise.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the department maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section ((constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe)) precludes individuals who establish that they are lineal descendants of the person whose remains have been discovered from making a claim to the remains.

NEW SECTION.  Sec. 5   A new section is added to chapter 27.44 RCW to read as follows:
     (1) Persons in possession of nonforensic skeletal human remains who relinquish the remains to local law enforcement or the coroner by January 1, 2010, are exempt from liability under RCW 68.50.645.
     (2) This section does not apply to persons in possession of nonforensic skeletal human remains who are involved in criminal prosecution or civil litigation regarding the remains as of the effective date of this act.
     (3) This section expires January 1, 2010.

NEW SECTION.  Sec. 6   A new section is added to chapter 68.60 RCW to read as follows:
     (1) Persons in possession of nonforensic skeletal human remains who relinquish the remains to local law enforcement or the coroner by January 1, 2010, are exempt from liability under RCW 68.50.645.
     (2) This section does not apply to persons in possession of nonforensic skeletal human remains who are involved in criminal prosecution or civil litigation regarding the remains as of the effective date of this act.
     (3) This section expires January 1, 2010.

NEW SECTION.  Sec. 7   The director shall develop an incentive program to encourage landowners to allow the reinterrment of Indian skeletal human remains and to allow the tribal members access to the reinterrment site for ceremonial and religious purposes.

NEW SECTION.  Sec. 8   The director shall adopt the necessary rules to implement this act and chapter 275, Laws of 2008.

NEW SECTION.  Sec. 9   Sections 7 and 8 of this act are each added to chapter 43.334 RCW.