SENATE BILL REPORT

SB 5807

BYSenators Pullen, Talmadge, Rasmussen, Fleming, Warnke, Metcalf, Newhouse, Niemi and Kreidler

Protecting Indian and historic graves.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 26, 1989; February 14, 1989

Majority Report:  That Substitute Senate Bill No. 5807 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Nelson, Newhouse, Niemi, Rasmussen, Rinehart, Talmadge, Thorsness.

Senate Staff:Cliff Petersen (786-7457)

                  February 16, 1989

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 14, 1989

BACKGROUND:

Washington State recognizes the cultural and spiritual value of burial sites to the native Indian population.  It further recognizes that native Indian burial grounds and other historic grave sites are an intrinsic part of the cultural heritage of the people of Washington.

Recently, there have been reported cases involving the accidental disturbance of Indian and historic graves where careless indifference was displayed towards the graves.  There is also growing apprehension regarding the intentional desecration of native Indian graves and concern that artifacts are being taken and sold for profit.

It is suggested that these cases are difficult to prosecute and that the current criminal classification does not reflect the seriousness of these offenses.  It is also recommended that a civil remedy be provided which would allow tribes to bring actions for an injunction, damages, or other appropriate relief.

SUMMARY:

Civil remedies and criminal penalties are created with respect to the desecration of native American graves or remains.

Any person who knowingly removes, damages, or destroys any native Indian grave, cairn, glyptic marking or any other historic grave is guilty of a class C felony.  A person who inadvertently disturbs a native American grave must reinter the human remains under the supervision of the appropriate Indian tribe.  Persons disturbing a historic grave through inadvertence must reinter the human remains at their own expense under the supervision of the Cemetery Board.

Any person who sells or is in unauthorized possession of any native Indian artifacts or human remains taken from an Indian grave or cairn or from any other historic grave is guilty of a class C felony.

A defense is established if the defendant committed the alleged acts accidentally or inadvertently, and made reasonable efforts to preserve and properly report the remains or artifacts.

An Indian tribe or enrolled member of the tribe may bring a civil action to secure an injunction, damages or other appropriate relief, including attorney's fees, against any person who removes, damages, destroys, sells or is in unauthorized possession of native Indian artifacts or human remains.  The action must be brought within two years of the discovery of the violation by the plaintiff.

Any person, firm, corporation or any agency or institution of the state which knowingly removes, alters, excavates, damages, or destroys any historic or prehistoric archeological resource or site or removes any archaeological object from such site without a written permit from the Director of Community Development is guilty of a misdemeanor.  Prior to issuance of the permit, the director must obtain the consent of the private or public property owner or agency responsible for management.  The director, in consultation with the affected tribes, is required to develop guidelines for the issuance and processing of permits.

EFFECT OF PROPOSED SUBSTITUTE:

The emergency clause is removed.

Appropriation:    none

Revenue:    none

Fiscal Note:      requested January 24, 1989

Senate Committee - Testified: Andy Joseph, Colville Tribe (pro); Harold Plaster, Lummi Tribe (pro); Bill Yallip, Yakima Nation (pro); Bob Kavanaugh (pro); Jewell R.W. James, Lummi Tribe and Tah x ume Intertribal Cultural Committee (pro); William Jones, Lummi Tribe and Tah x ume Intertribal Cultural Committee (pro)