BILL REQ. #:  S-4984.1 

READ FIRST TIME 02/07/08.   

     AN ACT Relating to human remains; amending RCW 27.53.030; adding a new section to chapter 68.50 RCW; adding a new section to chapter 27.44 RCW; adding a new section to chapter 68.60 RCW; adding a new section to chapter 43.334 RCW; adding a new section to chapter 27.34 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 68.50 RCW 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 as long as the following criteria are met:
     (i) The finding of the remains was based on an inadvertent discovery;
     (ii) The requirements of this subsection are 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 of affected Indian tribes within two business days of the finding. The determination of what are the 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 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 of affected Indian tribes.
     (d) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are tribes with usual and accustomed areas in the jurisdiction where the remains were found, or those that submit to the department maps that reflect the tribe's geographical area of cultural affiliation.
     (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.

NEW SECTION.  Sec. 2   A new section is added to chapter 27.44 RCW 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 as long as the following criteria are met:
     (i) The finding of the remains was based on an inadvertent discovery;
     (ii) The requirements of this subsection are 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 of affected Indian tribes within two business days of the finding. The determination of what are the 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 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 of affected Indian tribes.
     (d) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are tribes with usual and accustomed areas in the jurisdiction where the remains were found, or those that submit to the department maps that reflect the tribe's geographical area of cultural affiliation.
     (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.

NEW SECTION.  Sec. 3   A new section is added to chapter 68.60 RCW 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 as long as the following criteria are met:
     (i) The finding of the remains was based on an inadvertent discovery;
     (ii) The requirements of this subsection are 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 of affected Indian tribes within two business days of the finding. The determination of what are the 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 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 of affected Indian tribes.
     (d) The affected tribes have five business days to respond via telephone or writing to the department as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are tribes with usual and accustomed areas in the jurisdiction where the remains were found, or those that submit to the department maps that reflect the tribe's geographical area of cultural affiliation.
     (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.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.334 RCW 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.
     (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. 5   RCW 27.53.030 and 2005 c 333 s 20 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Archaeology" means systematic, scientific study of man's past through material remains.
     (2) "Archaeological object" means an object that comprises the physical evidence of an indigenous and subsequent culture including material remains of past human life including monuments, symbols, tools, facilities, and technological by-products.
     (3) "Archaeological site" means a geographic locality in Washington, including but not limited to, submerged and submersible lands and the bed of the sea within the state's jurisdiction, that contains archaeological objects.
     (4) "Department" means the department of archaeology and historic preservation, created in chapter 43.334 RCW.
     (5) "Director" means the director of the department of archaeology and historic preservation, created in chapter 43.334 RCW.
     (6) "Historic" means peoples and cultures who are known through written documents in their own or other languages. As applied to underwater archaeological resources, the term historic shall include only those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.
     (7) "Prehistoric" means peoples and cultures who are unknown through contemporaneous written documents in any language.
     (8) "Professional archaeologist" means a person ((who has met the educational, training, and experience requirements of the society of professional archaeologists.
     (9) "Qualified archaeologist" means a person who has had formal training and/or experience in archaeology over a period of at least three years, and has been certified in writing to be a qualified archaeologist by two professional archaeologists)) with qualifications meeting the federal secretary of the interior's standards for a professional archaeologist. Archaeologists not meeting this standard may be conditionally employed by working under the supervision of a professional archaeologist for a period of four years provided the employee is pursuing qualifications necessary to meet the federal secretary of the interior's standards for a professional archaeologist. During this four-year period, the professional archaeologist is responsible for all findings. The four-year period is not subject to renewal.
     (((10))) (9) "Amateur society" means any organization composed primarily of persons who are not professional archaeologists, whose primary interest is in the archaeological resources of the state, and which has been certified in writing by two professional archaeologists.
     (((11))) (10) "Historic archaeological resources" means those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.

NEW SECTION.  Sec. 6   A new section is added to chapter 27.34 RCW to read as follows:
     The department of archaeology and historic preservation shall develop and maintain a centralized database and geographic information systems spatial layer of all known cemeteries and known sites of burials of human remains in Washington state. The information in the database is subject to public disclosure, except as provided in RCW 42.56.300; exempt information is available by confidentiality agreement to federal, state, and local agencies for purposes of environmental review, and to tribes in order to participate in environmental review, protect their ancestors, and perpetuate their cultures.
     Information provided to state and local agencies under this section is subject to public disclosure, except as provided in RCW 42.56.300.