41-844. Duty to report discoveries; disposition of discoveries; definitions

A. A person in charge of any survey, excavation, construction or other like activity on any lands owned or controlled by this state, by any public agency or institution of the state, or by any county or municipal corporation within the state shall report promptly to the director of the Arizona state museum the existence of any archaeological, paleontological or historical site or object that is at least fifty years old and that is discovered in the course of such survey, excavation, construction or other like activity and, in consultation with the director, shall immediately take all reasonable steps to secure and maintain its preservation. If it is necessary to move the object before completion of the proceedings prescribed by this section to permit the continuation of work on a construction project or similar project, the director shall require that the move be accomplished in the manner that will least disturb and best preserve the object.

B. If the objects discovered are human remains, funerary objects, sacred ceremonial objects or objects of national or tribal patrimony, the director of the Arizona state museum, to the best of the director's ability, shall give notice of the discovery to:

1. All individuals who may have a direct kinship relationship to the human remains.

2. All groups that it is reasonable to believe may have a cultural or religious affinity to the remains or objects.

3. Appropriate members of the curatorial staff of the Arizona state museum.

4. Faculty members of the state universities who have a significant scholarly interest in the remains or objects.

5. The state historic preservation officer.

C. American Indian tribal governments that wish to be notified pursuant to this section shall keep on file with the director lists of the cultural groups and geographical area with which they claim affinity.

D. If American Indian human remains, funerary objects, sacred ceremonial objects or objects of cultural patrimony are involved, the director, in addition to giving notice as required in subsection B of this section, shall give notice to the tribes that occupy or have occupied the land on which the discovery is made and to the governor's office on tribal relations and the intertribal council of Arizona.

E. The director shall respond to every report of a discovery in a timely fashion and within six months after being notified of the discovery, the director shall convene a meeting of notified persons and representatives of notified groups to discuss the most appropriate disposition of the discovered materials. At this meeting, the director shall encourage agreement among all participants regarding the most appropriate disposition and treatment of the materials. An agreement may include a decision to curate or rebury materials subject to conditions or limitations, a decision to engage in scientific analysis before repatriation or reburial or any other appropriate disposition. If an agreement is reached, it shall determine the disposition and treatment of the materials and the director shall oversee its implementation.

F. If no agreement is reached within six months after the meeting required by subsection E of this section, the human remains or funerary objects shall be disposed and treated in accordance with the wishes of the nearest relative with a direct kinship relationship, or with the wishes of the governing body of the group with cultural or religious affinity to the remains or objects if no relative exists. If sacred ceremonial objects or objects of national or tribal patrimony are concerned, disposition and treatment shall be in accordance with the wishes of the governing body of the group with cultural or religious affinity to the objects. The authority to determine the disposition and treatment of remains or objects pursuant to this subsection shall not be exercised in a manner that would prevent timely completion of a construction project or other project.

G. If there is no person with a direct kinship relationship or a group with a cultural or religious affinity to human remains or funerary objects and the remains have no scientific value, the remains or funerary objects shall remain undisturbed. If it is necessary to move them in order to permit completion of a construction or similar project, the remains or funerary objects shall be reburied under the supervision of the director in a place as similar and close as possible to their original burial site. If the remains or funerary objects have scientific value, they may be curated by the Arizona state museum or other authorized repository for a period of one year, after which they shall be reinterred. If remains of American Indians are involved, reburial pursuant to this subsection shall be undertaken with the cooperation of the Indian tribe located nearest to the place where the remains were discovered. Reburial, with that tribe's consent, may take place on that tribe's reservation. The one-year period for scientific curation may be extended with that tribe's consent. If there is no group with a cultural or religious affinity to sacred ceremonial objects or objects of national or tribal patrimony, the director shall decide on the most appropriate disposition and treatment. Where American Indian materials are involved, the determination shall be made in consultation with appropriate tribal representatives.

H. A repository charged with the care or custody of human remains, funerary objects, sacred ceremonial objects or objects of national or tribal patrimony pursuant to this section shall maintain them with appropriate dignity and respect and with consideration for the specific applicable cultural or religious traditions applicable to the remains or objects. When materials are returned to relatives or affiliated groups, the relatives or groups shall accept and undertake responsibility for the protection and security of the materials.

I. The expense of any curation or reburial pursuant to this section that is required as the result of a construction project or similar project shall be borne by that project. Reburials made in order to satisfy the wishes of a relative or affinal group shall be by and at the expense of the relative or group.

J. If a person believes that the provisions of this section have not been properly applied the person shall give written notice of this claim to all other parties entitled to notice under subsections B and C of this section. The parties shall meet within fifteen days after receiving the notice and attempt to agree on the designation of a third party to assist in the resolution of the dispute. If the parties cannot agree within fifteen days on a third party, the state historic preservation officer shall serve in that capacity. The adverse parties shall attempt to reach a resolution with the assistance of the third party. If a resolution cannot be reached within ninety days after the designation of the third party, the third party shall resolve the dispute. Either party may appeal a decision within thirty days to the superior court in the county in which the subject of the dispute is located.

K. If a written request for the reburial or repatriation of human remains, funerary objects, sacred ceremonial objects or objects of national or tribal patrimony in the possession and ownership or control of an agency of this state, as of September 27, 1990, is made by the government of an American Indian tribe, the requirements of this section apply as if the remains or objects had been discovered after September 27, 1990.

L. Whenever two or more groups or tribes have affinity to the same human remains, funerary object, sacred ceremonial object or object of national or tribal patrimony and they do not agree on the disposition or treatment of such remains or object, the question of which group or tribe shall be deemed to have affinity shall be resolved pursuant to subsection J of this section. In making the determination, consideration shall be given to all the relevant evidence of affinity.

M. For the purposes of this section:

1. " Funerary object" means an object discovered in proximity to human remains and intentionally buried or interred with the remains.

2. " Group with a cultural or religious affinity" means any of the following:

(a) In the case of human remains or funerary objects, any tribe that has submitted a written claim of affinity pursuant to subsection C of this section or any other group or tribe that has cultural affinity in light of all the relevant evidence.

(b) In the case of a sacred ceremonial object, a group whose religious observances traditionally have utilized such object.

(c) In the case of an object of national or tribal patrimony, a group whose past or present government or traditional cultural organization was or is associated with the object.

3. " Group" includes American Indian tribes.

4. " Human remains" means any remains of a human being who died more than fifty years before the remains are discovered.

5. " Objects of national or tribal patrimony" means inalienable items of historical or cultural significance to tribal groups.

6. " Sacred ceremonial object" means an object traditionally utilized in religious observances.

7. " Tribe" means any federally recognized tribal government.