AGO 88-26.

• Case Date: December 13, 1988
• Court: North Dakota

North Dakota Attorney General Opinions 1988. AGO 88-26. 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 - I. No North Dakota cases directly address the issue of whether skeletal remains, whether modern or prehistoric, may be "owned" under state law. 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 may be. 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"). II. 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 land manager. 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...