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F I S C A L I M P A C T R E P O R T

SPONSOR Tsosie

DATE TYPED 2/21/05

HB

SHORT TITLE State Property for Reburial of Human Remains

SB 948

ANALYST Hadwiger

APPROPRIATION

(in $000s)

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$100.0

See discussion

below.

Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB949.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department Cultural Affairs (DCA)

Department of Indian Affairs (DIA)

SUMMARY

Synopsis of Bill

Senate Bill 948 would enact the Reburial Cemetery Act. In particular, SB948 would require that,

unless otherwise designated by the DCA, human remains including funerary objects associated

with the remains, shall be reburied in a federal or state reburial cemetery unless a descendant

group requests otherwise.

DCA would be required to facilitate designation of state and federal land for reburial of un-

marked remains not claimed by a descendant group including organizing a working group by

September 1, 2005 including representatives from DCA, DIA, and the tribal-state working group

to recommend rules for acquisition of remains and maintenance of the reburial ceremony, distin-

guish remains that can be reburied and those that cannot, and establish procedures and priorities

for reburying remains in state and private collections. DCA would also promulgate rules by De-

cember 30, 2006 for platting remains placed in a reburial cemetery and ensuring information is

Senate Bill 948 -- Page 2

confidential, accepting and acquiring remains and coordinating activities with the state historic

preservation officer, maintaining and securing the reburial cemetery, and working with descen-

dant groups to provide access to the reburial cemetery for ceremonies. By July1, 2007, DCA

would be required to accept the first remains for reburial with priority given to remains currently

at MIAC, begin platting the reburial cemetery, and provide security.

Senate Bill 948 appropriates $100,000 from the general fund to DCA in FY06 and FY07 for es-

tablishing, staffing, securing and maintaining the reburial cemetery and reburying remains.

Significant Issues

DIA indicated that SB 948 addresses a very important and sensitive issue related to the reburial

of Native American ancestral remains. Currently, many of the unclaimed or unidentified human

remains are stored in cardboard and metal boxes at several New Mexico museums, including

DCA facilities. The need for a secure and appropriate resting place for the ancestral remains is

paramount and is the reason why the Tribal State Workgroup on Repatriation and Scared Places

Protection (TSWG) was established. Since January 2004, representatives on the TSWG have

worked on various aspects of the proposed bill to provide for the respectful treatment of Native

American ancestral remains and to ensure tribal participation in establishing rules for acquisition

of remains and maintenance and preservation of a reburial proposed cemetery. DIA noted that a

majority of New Mexico’s twenty-two tribes are represented on the TSWG and support SB948

and that the Museum of Indian Arts and Culture Advisory Panel also supports the bill.

DCA noted that SB948 does not have jurisdiction over federal property or collections pertaining

to the federal Native American Grave Protection and Repatriation Act (NAGPRA). NAGPRA

regulations deal specifically with federal lands,

and collections contained in museums at least

partially funded through federal support. Human remains not currently in such a museum or

found in chance discoveries on private or state lands are not covered by NAGPRA. Furthermore,

NAGPRA does not currently have a simple mechanism to rebury remains of unknown geo-

graphic provenance. This bill would allow those remains and objects to be reburied in a proper,

secure cemetery.

FISCAL IMPLICATIONS

The appropriation of $100,000 contained in this bill is a recurring expense to the general fund.

Any unexpended or unencumbered balance remaining at the end of FY07 would revert to the

general fund. DCA notes that the ongoing maintenance and recordation of new reinterments will

require future appropriations to ensure the reburials are protected from vandalism or discovery.

It is not clear if the appropriation in this bill will be sufficient for a single fiscal year, particularly

if funds are required to purchase land and/or develop infrastructure at the cemetery site.

ADMINISTRATIVE IMPLICATIONS

DCA indicated that SB948 will help department staff administer the law under the Cultural

Properties Act. Two DCA divisions—Historic Preservation Division and the Museum of Indian

Arts & Culture—would request a small percentage of overall funding for administrative costs

such as travel, tribal education, and consultation.

Senate Bill 948 -- Page 3

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to SB949 which appropriates funds to inventory human physical remains in the state ar-

chaeological repository collections for the purpose of repatriation and reburial and for conserva-

tion and collection preservation of the Native American collections belonging to DCA.

TECHNICAL ISSUES

DIA recommended the following amendments:

On Page 2, Section 2, Subsection E, Lines 13-14, strike ‘for remains not claimed by a descendent

group’.

On Page 3, Section 4, Line 3, strike ‘and’ and replace with ‘or’.

On Page 3, Section 4, Line 4-5, strike ‘not claimed by a descendent group’.

DCA identified one technical issue in that language in Section 4-A(3) mentions reburying re-

mains held in private collections. It is the department’s understanding that existing statutes do

not provide for the attachment of collections in private ownership.

OTHER SUBSTANTIVE ISSUES

DIA provided the following background information on the TSWG: In January 2004, the TSWG

was established for the following purposes:

•

To review current state and federal statutes regarding repatriation;

•

To recommend amendments to current regulations;

•

To gather tribal recommendations to the repatriation process based on tribal needs, em-

phasizing tribal consultation and cultural sensitivity;

•

To improve enforcement;

•

To educate the general public on repatriation and sacred places protection;

and

•

To draft legislation for a state cemetery for unclaimed or culturally unidentified human

remains.

DIA indicates that SB948 is the legislation that members of the TSWG had anticipated would

arise from their meetings. The TSWG has met since January 2004 and has sponsored two con-

ferences, the “Protecting the Spirits of Our Ancestors: Repatriation and Sacred Places Protection

Issues in the State of New Mexico” and the “Protecting the Spirits of the Ancestors Conference

II.” Conference attendees included tribal leaders, tribal historic preservation officers, NAGPRA

coordinators, tribal archaeologists, cultural preservationists, tribal museum staff, IAIA Museum

Studies students, state agency staff, culturally affiliated tribes, and others committed to improv-

ing the repatriation process and protecting the multitude of sacred places in the State of New

Mexico. The outcome of these meetings was the recognition of the need for a state reburial

cemetery that is secure and available to the tribes for ceremonies as an alternative to the painful

legacy of human remains stored in cardboard and metal boxes that has been occurring for over

100 years. Further, the TSWG felt it was necessary to let the ancestors rest in peace in a secure

place where they will not be harmed or ever disturbed again.

Another related issue requiring attention, according to DIA, is the reburial of human remains dis-

Senate Bill 948 -- Page 4

covered during undercover NAGPRA and Bureau of Indian Affairs (BIA) operations. In some

of these cases, the tribes are unable to accept the remains or funerary objects, but would like

them to be reburied. Consideration should be made to allow the proposed reburial cemetery to

accept the remains in these cases.

DH/yr