North Dakota Attorney General Opinions
STATE OF NORTH
DAKOTA ATTORNEY GENERAL'S
OPINION 88-26Date issued: December 13, 1988Requested by: James E. Sperry, Superintendent- QUESTIONS PRESENTED - Whether state law recognizes ownership interests in
prehistoric skeletal remains. Whether it is necessary to determine ownership of
skeletal remains in the State Historical Society collection before the State
Historical Board may authorize reburial of the skeletal remains. Whether
knowledge of provenience (time and space) data may have a bearing on ownership
of the skeletal remains. Whether the religious rights of Native Americans are
violated by the State Historical Board's storage, analysis, and reburial of
skeletal remains of Native Americans. Whether the terms "artifacts" and "grave
goods" have the same legal meaning. Whether the terms "cultural resources" and
"collections" include human remains. VII. Whether state law requirements concerning burial transit
and registered cemeteries apply to the reburial of prehistoric skeletal
remains. - ATTORNEY GENERAL'S OPINIONS -
It is my opinion that state law recognizes ownership interests in
prehistoric skeletal remains.
It is my further opinion that it is necessary to determine
ownership of human remains in the State Historical Society collection before
the State Historical Board may authorize reburial of the skeletal remains.
It is my further opinion that provenience (time and space) data
may have a bearing on ownership of the skeletal remains.
It is my further opinion that although it is unlikely that a
court would find that the religious rights of Native Americans are violated by
the State Historical Board's storage, analysis, and reburial of skeletal
remains of Native Americans, that question cannot be answered in this opinion
because it involves factual questions. There is no specific case or statute
that provides a definite answer.
It is my further opinion that the terms "artifacts" and "grave
goods" do not have the same legal meaning.
It is my further opinion that while the term "cultural resources"
includes human remains, the term "collections" may not, in all circumstances,
include human remains.
It is my further opinion that state law requirements relating to
burial transit and registered cemeteries apply to the reburial of prehistoric
skeletal remains only where reburial occurs on non-reservation land.
- ANALYSES -
No North Dakota cases directly address the issue of whether
skeletal remains, whether modern or prehistoric, may be "owned" under state
Several statutory provisions, however, explicitly or implicitly
recognize ownership of prehistoric remains.
State law generally provides that all property has an owner.
N.D.C.C. § 47-01-09. State law defines "land" as "the solid material of
the earth, whatever may be the ingredients of which it is composed, whether
soil, rock or other substance." N.D.C.C. § 47-01-04. State law further
provides that "the owner of land in fee has the right to the surface and to
everything permanently situated beneath or above it." N.D.C.C. § 47-01-12.
The Legislature has also explicitly recognized that title to
archeological materials may be held by the state. N.D.C.C. § 55-03-06
provides as follows:
55-03-06. Upon sale of land by state or municipality
archaeological or paleontological materials retained. Where land is
sold, conveyed, transferred, or leased by the state of North Dakota, or by any
department or agency thereof, or by any municipal subdivision thereof, the
title to any and all archaeological or paleontological materials, whether such
materials are found upon the surface or below the surface of such land, shall
be retained by the state or by the municipal subdivision thereof, as the case
The statutory predecessor to N.D.C.C. ch. 55-03 indicates that
the Legislature included material contained within burial mounds, which
obviously would include skeletal remains, within the archeological materials
covered by the statute. See 1939 N.D. Sess. Laws ch. 223. The 1939 statute
included a section which concerned the ownership of archeological materials and
which is, in significant part, identical to section 55-03-06. See 1939 N.D.
Sess. Laws ch. 223, § 6. By adopting this law, the Legislature apparently
intended that the state retain title to archeological materials in burial
mounds as well as other archeological material.
In conclusion, state law appears to recognize that skeletal
remains may be "owned." Such ownership, however, is not unfettered. Pursuant to
its police power, the state has imposed numerous duties and obligations with
respect to treatment of human remains. See, e.g., N.D.C.C. ch. 23-21.1
(cemetery organ izations); N.D.C.C. § 23-06-30 (care of abandoned
cemeteries by counties);
N.D.C.C. §§ 23-06-01 to 23-06-30 (duty of burial);
N.D.C.C. § 23-06-27 (crime to open grave without authority); N.D.C.C. ch.
42-01 (abatement of common nuisance that may offend "common decency").
The skeletal remains in the State Historical Board's collection
are not necessarily the property of the state, nor are they necessarily subject
to the unfettered disposal authority of the State Historical Board. Some
remains may be owned by the federal government, some by private persons, and
some by the state. A different legal regime for disposition applies to each
category, which will now be examined.
Skeletal Remains Found on Federal Lands
Skeletal remains which belong to the federal government or one of
its agencies and which are simply being held by the State Historical Society as
curator are subject to federal law.
Among the State Historical Society's collection are skeletal
remains found on federal land (e.g., Park Service or Corps of Engineers land).
Since 1906 federal law has provided that no one may excavate on federally owned
land without a permit under the Antiquities Act of 1906 (16 U.S.C.A. § 432
(West 1974)). Any archeological items excavated pursuant to permits are
required to be "for the benefit of reputable museums, universities, colleges,
or other recognized scientific or educational institutions, with a view to
increasing the knowledge of such objects, and that the gatherings
shall be made for permanent preservation in public museums." Id.
(emphasis supplied). The requirement of the "permanent preservation" of
skeletal remains prohibits an entity holding the remains from disposing of them
by reburial. This duty is made clearer in regulations implementing this law and
in more recent federal legislation.
Uniform regulations to implement this Act were issued by the
Secretaries of the Interior, Agriculture, and War in 1906. With minor
modifications, these regulations are now printed at 43 C.F.R. pt. 3 (1987). 43
C.F.R. § 3.17 (1987) states in relevant part:
[E]very collection made under the authority of the act and of
this part shall be preserved in the public museum designated in the permit and
shall be accessible to the public. No such collection shall be removed from
such public museum without the written authority of the Secretary of the
Smithsonian Institution and then only to another public museum, where it shall
be accessible to the public.
Without repealing the Antiquities Act, Congress adopted the
Archeological Resources Protection Act of 1979 (16 U.S.C.A. §§
470aa-ll (West 1985)) (hereinafter referred to as ARPA). It specifically
includes graves and human skeletal remains within the term "archeological
resources." 16 U.S.C.A. § 470bb (West 1985). It allows the Secretary of
the Interior to promulgate regulations providing for exchanges of collections
among scientific institutions and to promulgate regulations providing for "the
ultimate disposition of such resources" collected pursuant to the Antiquities
Act of 1906 as well as other laws. Regulations implementing ARPA are found at
43 C.F.R. pt. 7 (1987).
The Secretary of the Interior's regulations govern
exchanges of archeological 1 resources
among museums with consent of the appropriate federal
43 C.F.R. pt. 7 (1987). These regulations, however, do not make
any explicit provision for reinterment of federal collections. Cf. 43 C.F.R.
§ 7.13 (1987). Proposed revisions to the regulations of the Department of
Interior have been published for comment. The proposed regulations allow
discretionary reinterment of archeological human remains that are not part of
an existing collection. Curation of Federally-Owned and Administered
Archeological Collections, 52 Fed. Reg. 32,740 (1987) (to be codified at 36
C.F.R. pt. 79.)
However, the proposed regulation continues to prohibit any
federal agency official from selling or discarding all or part of any
archeological collec tion which was gathered pursuant to several federal laws.
52 Fed. Reg. 32,748 (1987) (to be codified at 36 C.F.R. § 79.8(e)). Final
regulations have not been issued.
In conclusion, it is my opinion that federal law prohibits the
reinterment of any federally owned skeletal remains within the
State Historical Society's collection. Thus, the State Historical
Board does not have the legal authority to reinter skeletons that belong to the
federal government. The State Historical Board may request the transfer of such
skeletons to some other depository so that the Society is no longer responsi
ble for curation. It is necessary to have the written permission of the
Secretary of the Smithsonian Museum, pursuant to 43 C.F.R. § 3.17 (1987),
and the authorization of the...