BILL REQ. #:  S-1282.3 

Read first time 02/07/2007.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to human remains; amending RCW 27.44.030, 27.44.020, 68.60.050, 27.44.050, 27.44.901, 68.60.010, 68.60.020, and 68.60.030; adding new sections to chapter 27.44 RCW; recodifying RCW 68.60.010, 68.60.020, 68.60.030, 68.60.040, 68.60.050, and 68.60.060; repealing RCW 27.44.040; and prescribing penalties.

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

Sec. 1   RCW 27.44.030 and 1989 c 44 s 1 are each amended to read as follows:
     The legislature hereby declares that:
     (1) Native Indian ((burial grounds)) and ((historic)) other human graves are acknowledged to be a finite, irreplaceable, and nonrenewable cultural resource, and are an intrinsic part of the cultural heritage of the people of Washington. The legislature recognizes the value and importance of respecting all graves, and the spiritual significance of such sites to the people of this state;
     (2) The preservation of human remains that are discovered in the course of development activities, including home building, home improvement, road building, and urban infill, is a priority of the state. However, in those instances where removal of any grave or cemetery is necessary, removal shall be accomplished in a respectful manner in accordance with the procedures of this chapter. All graves and historical cemeteries are irreplaceable symbols of our heritage and therefore should be treated respectfully during relocation;
     (3) There have been reports and incidents of deliberate interference with native Indian and historic graves for profit-making motives;
     (((3))) (4) There has been careless indifference in cases of accidental disturbance of sites, graves, and burial grounds;
     (((4) Indian burial)) (5) All burial and grave sites, cairns, glyptic markings, and ((historic)) graves located on public and private land are to be protected and it is therefore the legislature's intent to encourage voluntary reporting and respectful handling in cases of accidental disturbance and provide enhanced penalties for deliberate desecration.

Sec. 2   RCW 27.44.020 and 1985 c 64 s 1 are each amended to read as follows:
     Any archaeologist or interested person may copy and examine ((such)) glyptic or painted records of any tribe or peoples or examine the surface of any ((such)) cairn or grave of any tribe or peoples, but no ((such)) record ((or)), archaeological material, or human remains from any such cairn or grave may be removed unless the same shall be destined for reburial or perpetual preservation in a duly recognized archaeological repository and permission for scientific research and removal of specimens of such records and material has been granted by the state historic preservation officer. Whenever a request for permission to remove records or material is received, the ((state historic preservation officer)) department of archeology and historic preservation shall notify the affected Indian tribe or tribes or other descendants, as applicable.

Sec. 3   RCW 68.60.050 and 1999 c 67 s 1 are each amended to read as follows:
     (1) Any person who knowingly removes, mutilates, defaces, injures, or destroys any ((historic)) cairn, glyptic, or painted record of any tribe or peoples, or any grave shall be guilty of a class C felony punishable under chapter 9A.20 RCW. ((Persons disturbing historic graves through inadvertence, including disturbance through construction, shall reinter the human remains under the supervision of the office of archaeology and historic preservation. Expenses to reinter such human remains are to be provided by the office of archaeology and historic preservation to the extent that funds for this purpose are appropriated by the legislature.))
     (2) Any person who sells any human remains that are known to have been taken from any cairn or grave, or any cemetery or grave, is guilty of a class C felony punishable under chapter 9A.20 RCW.
     (3) Any person who intentionally fails to report the disturbance of human remains under section 4 of this act is guilty of a misdemeanor.
     (4) This section does not apply to:
     (a) Actions permitted under chapter 27.53 RCW; or
     (b) Actions taken in the performance of official law enforcement duties.
     (((3))) (5) It shall be a complete defense ((in a prosecution)) under subsection (1) of this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains, glyptic, painted records, or artifacts, accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported under section 4 of this act.

NEW SECTION.  Sec. 4   A new section is added to chapter 27.44 RCW to read as follows:
     (1) Persons disturbing native Indian graves or any other graves through inadvertence, including disturbance through construction, mining, logging, agricultural activity, or any other activity, shall immediately report this disturbance to law enforcement officials.
     (2) Within forty-eight hours of the determination by law enforcement officials that the human remains are not evidence that a crime has been committed, of which the human remains are evidence, the law enforcement officials, medical examiner, or the county coroner shall report the disturbance to the department of archaeology and historic preservation.
     (3) The department of archaeology and historic preservation shall report the disturbance to the cemetery board or to the appropriate Indian tribe or other appropriate descendants.
     (4) The removal of the remains shall be by permit from and under the supervision of the department of archaeology and historic preservation.
     (5) Reinterment of the human remains shall be under the supervision of the appropriate Indian tribe or other descendants, as applicable, and the department of archaeology and historic preservation. Expenses to reinter such human remains shall be provided by the department of archaeology and historic preservation to the extent that funds for this purpose are appropriated by the legislature.

Sec. 5   RCW 27.44.050 and 1989 c 44 s 3 are each amended to read as follows:
     (1) Apart from any criminal prosecution, any person, including an Indian tribe or enrolled member thereof, shall have a civil action to secure an injunction, damages, or other appropriate relief against any person who is alleged to have violated RCW ((27.44.040)) 68.60.050 (as recodified by this act). 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 or tribal court of the county in which the grave, cairn, remains, or artifacts are located, or in the superior court of the county within which the defendant resides.
     (2) Any conviction pursuant to RCW ((27.44.040)) 68.60.050 (as recodified by this act) shall be prima ((facia)) 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 artifacts or remains 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 ((office)) department of archaeology and historic preservation for the purposes of ((Indian historic)) grave preservation, as appropriate to the remains or artifacts, and to cover the cost of reinterment expenses by the ((office)) 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.

Sec. 6   RCW 27.44.901 and 1989 c 44 s 11 are each amended to read as follows:
     This ((act)) chapter is to be liberally construed to achieve the legislature's intent.

Sec. 7   RCW 68.60.010 and 1990 c 92 s 1 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) (("Abandoned cemetery" means a burial ground of the human dead in [for] which the county assessor can find no record of an owner; or where the last known owner is deceased and lawful conveyance of the title has not been made; or in which a cemetery company, cemetery association, corporation, or other organization formed for the purposes of burying the human dead has either disbanded, been administratively dissolved by the secretary of state, or otherwise ceased to exist, and for which title has not been conveyed)) "Cemetery" means a parcel of land recorded within the records of the county assessor that is identifiable and unique as a location of human remains and that is intentionally set aside for the exclusive purpose of interring human remains.
     (2) "Grave" means a burial site or ground, located outside a cemetery, that contains human remains.
     (3) "Historical cemetery" means ((any burial site or grounds which contain within them human remains buried prior to November 11, 1889; except that)) (a) cemeteries holding a valid certificate of authority to operate granted under RCW 68.05.115 and 68.05.215, (b) cemeteries owned or operated by any recognized religious denomination that qualifies for an exemption from real estate taxation under RCW 84.36.020 on any of its churches or the ground upon which any of its churches are or will be built, and (c) cemeteries controlled or operated by a coroner, county, city, town, or cemetery district shall not be considered historical cemeteries.
     (((3) "Historic grave" means a grave or graves that were placed outside a cemetery dedicated pursuant to this chapter and to chapter 68.24 RCW, prior to June 7, 1990, except Indian graves and burial cairns protected under chapter 27.44 RCW.))
     (4) (("Cemetery" has the meaning provided in RCW 68.04.040(2))) "Human remains" means a set of one human's remains or intermingled sets of more than one human's remains, whether or not the set or sets are complete human skeletons, together with all man-made things attached to or found in the immediate vicinity of the remains.

Sec. 8   RCW 68.60.020 and 1999 c 367 s 3 are each amended to read as follows:
     Any ((cemetery, abandoned cemetery,)) historical cemetery((,)) or ((historic)) grave that has not been dedicated pursuant to RCW 68.24.030 and 68.24.040 ((shall)) may be ((considered permanently)) dedicated ((and subject to RCW 68.24.070)) pursuant to RCW 68.24.030 and 68.24.040 with the consent of the landowner. Removal of dedication may only be made pursuant to RCW 68.24.090 and 68.24.100.

Sec. 9   RCW 68.60.030 and 2005 c 365 s 150 are each amended to read as follows:
     (1)(a) The ((archaeological and historical division of the department of community, trade, and economic development)) department of archaeology and historic preservation may grant by nontransferable certificate authority to maintain and protect ((an abandoned cemetery)) a grave or graves upon application made by a preservation organization which has been incorporated for the purpose of restoring, maintaining, and protecting ((an abandoned cemetery)) graves. Such authority shall be limited to the care, maintenance, restoration, protection, and historical preservation of the ((abandoned cemetery)) grave, and shall not include authority to make burials. In order to activate a historical cemetery for burials, an applicant must apply for a certificate of authority to operate a cemetery from the state cemetery board.
     (b) Those preservation and maintenance corporations that are granted authority to maintain and protect ((an abandoned cemetery)) graves shall be entitled to hold and possess burial records, maps, and other historical documents as may exist. Maintenance and preservation corporations that are granted authority to maintain and protect ((an abandoned cemetery)) graves shall not be liable to those claiming burial rights, ancestral ownership, or to any other person or organization alleging to have control by any form of conveyance not previously recorded at the county auditor's office within the county in which the ((abandoned cemetery)) grave exists. Such organizations shall not be liable for any reasonable alterations made during restoration work on memorials, roadways, walkways, features, plantings, or any other detail of the ((abandoned cemetery)) grave.
     (c) Should the maintenance and preservation corporation be dissolved, the ((archaeological and historical division of the department of community, trade, and economic development)) department of archaeology and historic preservation shall revoke the certificate of authority.
     (d) Maintenance and preservation corporations that are granted authority to maintain and protect ((an abandoned cemetery)) graves may establish care funds.
     (2) Except as provided in subsection (1) of this section, the department of ((community, trade, and economic development)) archaeology and historic preservation may, in its sole discretion, authorize any Washington nonprofit corporation that is not expressly incorporated for the purpose of restoring, maintaining, and protecting ((an abandoned cemetery)) graves, to restore, maintain, and protect one or more ((abandoned cemeteries)) graves. The authorization may include the right of access to any burial records, maps, and other historical documents, but shall not include the right to be the permanent custodian of original records, maps, or documents. This authorization shall be granted by a nontransferable certificate of authority. Any nonprofit corporation authorized and acting under this subsection is immune from liability to the same extent as if it were a preservation organization holding a certificate of authority under subsection (1) of this section.
     (3) The department of ((community, trade, and economic development)) archaeology and historic preservation shall establish standards and guidelines for granting certificates of authority under subsections (1) and (2) of this section to assure that any restoration, maintenance, and protection activities authorized under this subsection are conducted and supervised in an appropriate manner.

NEW SECTION.  Sec. 10   RCW 27.44.040 (Protection of Indian graves -- Penalty) and 1989 c 44 s 2 are each repealed.

NEW SECTION.  Sec. 11   The following sections are each recodified as sections in chapter 27.44 RCW:
     RCW 68.60.010
     RCW 68.60.020
     RCW 68.60.030
     RCW 68.60.040
     RCW 68.60.050
     RCW 68.60.060