Committee Substitute
House Bill 2671 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 2671
(By Mr. Speaker, Mr. Chambers, and Delegate Burk)
[By Request of the Executive]
(Originating in the House Committee on Finance)
[April 2, 1993]
A BILL to amend and reenact sections one, five and eight-a,
article one, chapter twenty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the division of culture and history and the
commissioner of the division of culture and history.
Be it enacted by the Legislature of West Virginia:
That sections one, five and eight-a, article one, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-1. Division of culture and history continued; sections
and commissions; purposes; definitions; effective
date.
(a) The division of culture and history and the office of
commissioner of culture and history heretofore created are hereby
continued. The governor shall nominate, and by and with the
advice and consent of the Senate, appoint the commissioner, whoshall be the chief executive officer of the division and shall be
paid an annual salary and be governed by the provisions of
section two-a, article seven, chapter six of this code. The
commissioner so appointed shall have: (1) A bachelor's degree in
one of the fine arts, social sciences, library science or a
related field; or (2) four years' experience in the
administration of museum management, public administration, arts,
history or a related field.
(b) The division shall consist of five sections and two
citizen's commissions as follows:
(1) The arts and humanities section; and a commission on the
arts
(2) The archives and history section; and a commission on
archives and history
(3) The museums section;
(4) The historic preservation section; and
(5) The administrative section;.
(c) The division shall also consist of two citizens
commissions as follows:
(1) A commission on the arts; and
(2) A commission on archives and history.
(c) The commissioner shall exercise control and supervision
of the division and shall be responsible for the projects,
programs and actions of each of its sections. The commissioner
shall serve as the chairman of the capitol building commission,
as set forth in section one of article eight, chapter four of
this code. The purpose and duty of the division is to advance,
foster and promote the creative and performing arts and crafts,including both indoor and outdoor exhibits and performances; to
advance, foster, promote, identify, register, acquire, mark and
care for historical, prehistorical, archaeological and
significant architectural sites, structures and objects in the
state; to encourage the promotion, preservation and development
of significant sites, structures and objects through the use of
economic development activities such as loans, subsidies, grants
and other incentives; to coordinate all cultural, historical and
artistic activities in state government and at state-owned
facilities; to acquire, preserve and classify books, documents,
records and memorabilia of historical interest or importance;
and, in general, to do all things necessary or convenient to
preserve and advance the culture of the state.
(d) The division shall have jurisdiction and control and may
set and collect fees for the use of all space in the building
presently known as the West Virginia science and culture center,
including the deck and courtyards forming an integral part
thereof; the building presently known as West Virginia
Independence Hall in Wheeling, including all the grounds and
appurtenances thereof; "Camp Washington Carver" in Fayette
County, as provided for in section fourteen of this article; and
any other sites as may be transferred to or acquired by the
division. Notwithstanding any provision of this code to the
contrary, including the provisions of article one of chapter
five-b of this code, beginning on and after the first day of
July, one thousand nine hundred ninety-three, the division shall
have responsibility for, and control of, all visitor touring and
visitor tour guide activities within the state capitol buildingat Charleston.
(e) For the purposes of this article "commissioner" means
the commissioner of culture and history, and "division" means the
division of culture and history.
§29-1-5. Archives and history commission.
The archives and history commission which is hereby created
shall be composed of thirteen appointed members, two ex officio
voting members and five six ex officio nonvoting members as
provided in this section.
The governor shall nominate, and by and with the advice and
consent of the Senate, appoint the members of the commission for
staggered terms of three years. A person appointed to fill a
vacancy shall be appointed only for the remainder of that term.
No more than seven of the appointed members may be of the
same political party. Members of the commission shall be
appointed so as to fairly represent both sexes, the ethnic and
cultural diversity of the state and the geographic regions of the
state. The archives and history commission shall contain the
required professional representation necessary to carry out the
provisions of the National Historic Preservation Act of 1966, as
amended, and shall serve as the "state review board" and shall
follow all rules and regulations as specified therein. This
representation shall include the following professions:
Historian, architectural historian, historical architect,
archaeologist specializing in historic and prehistoric
archaeology, archivist, librarian and museum specialist.
The commission shall elect one of its members chair. It
shall meet at such time as shall be specified by the chair.Notice of each meeting shall be given to each member by the chair
in compliance with the open meetings law. A majority of the
voting members shall constitute a quorum for the transaction of
business.
In addition to the thirteen appointed members, the president
of the state historical society and the president of the state
historical association shall serve as ex officio voting members
of the archives and history commission. The director of the
state geological and economic survey, the president of the West
Virginia preservation alliance, inc., and the state historic
preservation officer shall serve as ex officio nonvoting members
of the archives and history commission.
The directors of the archives and history section, the
historic preservation section and the museums section shall be
ex officio nonvoting members of the commission. The director of
the archives and history section shall serve as secretary of the
commission. The secretary, or a majority of the members, may
also call a meeting upon such notice as provided in this section.
Each member or ex officio member of the commission shall
serve without compensation, but shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of the duties of the commission; except that in the
event the expenses are paid, or are to be paid, by a third party,
the member or ex officio member, as the case may be, shall not be
reimbursed by the state.
The commission shall have the following powers:
(a) To advise the commissioner and the directors of the
archives and history section, the historic preservation sectionand the museums section concerning the accomplishment of the
purposes of those sections and to establish a state plan with
respect thereto;
(b) To approve and distribute grants-in-aid and awards from
federal and state funds relating to the purposes of the archives
and history section, the historic preservation section and the
museums section;
(c) To request, accept or expend federal funds to accomplish
the purposes of the archives and history section, the historic
preservation section and the museums section when federal law or
regulations would prohibit the same by the commissioner or
section director, but would permit the same to be done by the
archives and history commission;
(d) To otherwise encourage and promote the purposes of the
archives and history section, the historic preservation section
and the museums section;
(e) To approve rules and regulations concerning the
professional policies and functions of the archives and history
section, the historic preservation section and the museums
section as promulgated by the directors of those sections;
(f) To advise and consent to the appointment of the section
directors by the commissioner; and
(g) To review and approve nominations to the state and
national registers of historic places.
§29-1-8a. Protection of human skeletal remains, grave artifacts
and grave markers; permits for excavation and
removal; penalties.
(a)
Legislative findings and purpose.
The Legislature finds that there is a real and growing
threat to the safety and sanctity of unmarked human graves in
West Virginia and the existing laws of the state do not provide
equal or adequate protection for all such graves. As evident by
the numerous incidents in West Virginia which have resulted in
the desecration of human remains and vandalism to grave markers,
there is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is to assure that all human burials be accorded equal
treatment and respect for human dignity without reference to
ethnic origins, cultural backgrounds, or religious affiliations.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been
acquired in accordance with the law are engaged in legitimate and
worthy scientific and educational activities. Therefore, this
legislation is intended to permit the appropriate pursuit of
those lawful activities.
Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers, or
those engaged in the development, mining or improvement of real
property.
(b)
Definitions.
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth, hair or
tissue of a deceased human body;
(2) "Unmarked grave" means any grave or location where a
human body or bodies have been buried or deposited for at least
fifty years and the grave or location is not in a publicly orprivately maintained cemetery or in the care of a cemetery
association, or is located within such cemetery or in such care
and is not commonly marked;
(3) "Grave artifact" means any items of human manufacture or
use that are associated with the human skeletal remains in a
grave;
(4) "Grave marker" means any tomb, monument, stone,
ornament, mound, or other item of human manufacture that is
associated with a grave;
(5) "Person" includes the federal and state governments and
any political subdivision of this state; and
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting, or desecrating in
any way of human skeletal remains, unmarked graves, grave
artifacts or grave markers;
(7) "Native American tribe" means any Indian tribe, band,
nation, or organized group or community which is recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians;
(8) "Cultural affiliation" means the relationship of shared
group identity which can be reasonably traced historically or
prehistorically between a present day group and an identifiable
earlier group; and
(9) "Lineal descendants" means any individuals tracing his
or her ancestry directly and without interruption by means of the
traditional kinship system.
(c)
Acts prohibited; penalties.
(1) No person may excavate, remove, destroy, or otherwisedisturb any historic or prehistoric ruins, burial grounds,
archaeological site, or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance unless
such person has a valid permit issued to him or her by the
director of the historic preservation section:
Provided,
That
the supervising archaeologist of an archaeological investigation
being undertaken in compliance with the federal Archaeological
Resources Protection Act (Public Law 96-95 at 16 USC 470(aa)) and
regulations promulgated thereunder shall not be required to
obtain such permit, but shall notify the director of the historic
preservation section that such investigation is being undertaken
and file reports as are required of persons issued a permit under
this section:
Provided, however,
That projects being undertaken
in compliance with section 106 of the National Historic
Preservation Act of 1966, as amended, or subsection (a), section
five of this article shall not be required to obtain such permit
for excavation, removal, destruction or disturbance of historic
or prehistoric ruins or archaeological sites.
A person who, either by himself or through an agent,
intentionally excavates, removes, destroys or otherwise disturbs
any historic or prehistoric ruins, burial grounds or
archaeological site, or unmarked grave, grave artifact or grave
marker of historical significance without first having been
issued a valid permit by the director of the historic
preservation section, or who fails to comply with the terms and
conditions of such permit, is guilty of a misdemeanor, and, upon
conviction, shall be fined not less than one hundred dollars nor
more than five hundred dollars, and may be imprisoned in thecounty jail for not less than ten days nor more than six months
or both fined and imprisoned.
A person who, either by himself or through an agent,
intentionally excavates, removes, destroys or otherwise disturbs
human skeletal remains of historical significance without first
having been issued a valid permit by the director of the historic
preservation section, or who fails to comply with the terms and
conditions relating to disinterment or displacement of human
skeletal remains of such permit, is guilty of the felony of
disinterment or displacement of a dead human body or parts
thereof under section fourteen, article eight, chapter sixty-one
of this code and, upon conviction, shall be confined in the state
penitentiary not less than two nor more than five years.
A person who intentionally withholds information about the
excavation, removal, destruction, or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological
site, or human skeletal remains, unmarked grave, grave artifact
or grave marker of historical significance is guilty of a
misdemeanor and, upon conviction, shall be fined not more than
one hundred dollars, and may be imprisoned in the county jail not
more than ten days.
(2) No person may offer for sale or exchange any human
skeletal remains, grave artifact or grave marker obtained in
violation of this section.
A person who, either by himself or through an agent, offers
for sale or exchange any human skeletal remains, grave artifact
or grave marker obtained in violation of this section is guilty
of a misdemeanor and, upon conviction, shall be fined not lessthan one thousand dollars nor more than five thousand dollars,
and may be imprisoned in the county jail not less than six months
nor more than one year.
(3) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under (1) and (2) of
this subsection shall constitute a separate offense.
(d)
Notification of discovery of human skeletal remains in
unmarked locations.
Within forty-eight hours of the discovery of human skeletal
remains, grave artifact or grave marker in an unmarked grave on
any publicly or privately owned property the person making such
discovery shall notify the county sheriff of the discovery and
its location. If the human remains, grave artifact or grave
marker appear to be from an unmarked grave, the sheriff shall
promptly, and prior to any further disturbance or removal of the
remains, notify the director of the historic preservation
section. The director shall cause an on-site inspection of the
disturbance to be made to determine the potential for
archaeological significance of the site:
Provided,
That when the
discovery is made by an archaeological investigation permitted
under state or federal law, the supervising archaeologist shall
notify the director of the historic preservation section
directly.
If the director of the historic preservation section
determines that the site has no archaeological significance, the
removal, transfer and disposition of the remains shall be subject
to the provisions of article thirteen, chapter thirty-seven of
this code, and the director shall notify the circuit court of thecounty wherein the site is located.
If the director of historic preservation determines that the
site has a potential for archaeological significance, the
director shall take such action as is reasonable, necessary and
prudent, including consultation with appropriate private or
public organizations, to preserve and advance the culture of the
state in accordance with the powers and duties granted to the
director, including the issuance of a permit for the
archaeological excavation or removal of the remains. If the
director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.
(e)
Issuance of permits.
Prior to the issuance of a permit for the disturbance of
human skeletal remains, grave artifacts, or grave markers, the
director of historic preservation shall convene and chair an ad
hoc committee to develop permit conditions. The committee shall
be comprised of the chair and 6 or 8 members representing known
or presumed lineal descendants, private and public organizations
which have cultural affiliation to the presumed contents of the
site, the Council for West Virginia Archaeology and the West
Virginia Archaeological Society. In the case of Native American
sites, the membership of the committee shall be comprised of the
chair and 6 or 8 members representing the Council for West
Virginia Archaeology, the West Virginia Archaeological Society,
and known or presumed lineal descendants, if any, but if none are
apparent then recognized tribal members of Native American tribespreferably with cultural affiliation to tribes that existed at
contact in the geographic area that is now West Virginia.
All such permit permits issued by the director of the
historic preservation section for the disturbance of human
skeletal remains, grave artifacts, or grave markers shall at a
minimum address the following conditions: (1) The methods by
which descendents of proven kinship to lineal descendents of the
deceased are notified prior to the disturbance; (2) the
respectful manner in which the remains, artifacts or markers are
to be removed and handled; (3) the need for any scientific
analysis of the remains, artifacts or markers and the duration of
those studies; (4) the way in which the remains may be reburied
in consultation with any descendents of proven kinship lineal
descendents, when available; (5) methods for the respectful
curation of recovered items; and (6) such other conditions as the
director may deem necessary. Expenses accrued in meeting the
permit conditions shall be borne by the permit applicant, except
in cases where the deceased descendents or sponsors are willing
to share or assume the costs. A permit to disturb human skeletal
remains, grave artifacts or grave markers will be issued only
after alternatives to disturbance and other mitigative measures
have been considered.
In addition, a person applying for a permit to excavate or
remove human skeletal remains, grave artifacts, grave markers, or
any historic or prehistoric features of archaeological
significance must may provide to the ad hoc committee information
he or she deems appropriate and shall:
(1) Provide a detailed statement to the director of thehistoric preservation section giving the reasons and objectives
for excavation or removal and the benefits expected to be
obtained from the contemplated work;
(2) Provide data and results of any excavation, study or
collection in annual reports to the director of the historic
preservation section and submit a final report to the director
upon completion of the excavation; and
(3) Obtain the prior written permission of the owner if the
site of such proposed excavation is on privately owned land; and
(4) Provide any additional information the ad hoc committee
deems necessary in developing the permit conditions.
Such permits shall be issued for a period of two years and
may be renewed at expiration. The permits are not transferable
but other persons who have not been issued a permit may work
under the direct supervision of the person holding the permit.
The person or persons to whom a permit was issued must carry the
permit while exercising the privileges granted and must be
present at the site whenever work is being done.
Notwithstanding any other penalties to which a person may be
subject under this section for failing to comply with the terms
and conditions of a permit, the permit of a person who violates
any of the provisions of this subsection shall be revoked.
As permits are issued, the director of the historic
preservation section shall maintain a catalogue of unmarked grave
locations throughout the state.
(f)
Property tax exemption for unmarked grave sites.
To serve as an incentive for the protection of unmarked
graves, the owner, having evidence of the presence of unmarkedgraves on his or her property, may apply to the director of the
historic preservation section for a determination as to whether
such is the case. Upon making such a determination in the
affirmative, the director of the historic preservation section
shall provide written certification to the land owner that the
site containing the graves is a cemetery and as such is exempt
from property taxation upon presentation of the certification to
the county assessor. The area of the site to receive property
tax exempt status shall be determined by the director of the
historic preservation section. Additionally, a property owner
may establish protective easements for the location of unmarked
graves.
(g)
Additional provisions for enforcement; civil penalties;
rewards for information.
(1) The prosecuting attorney of the county in which a
violation of any provision of this section is alleged to have
occurred may be requested by the director of the historic
preservation section to initiate criminal prosecutions or to seek
civil damages, injunctive relief and any other appropriate
relief. The director of the historic preservation section shall
cooperate with the prosecuting attorney in resolving such
allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for
sale or exchange of historic or prehistoric ruins, burial
grounds, archaeological site, human skeletal remains, unmarked
grave, grave artifact or grave marker under the provisions of
subdivisions (1) and (2), subsection (c) of this section shallalso be liable for civil damages to be assessed by the
prosecuting attorney in consultation with the director of the
historic preservation section.
Civil damages may include:
(i) Forfeiture of any and all equipment used in disturbing
the protected unmarked graves or grave markers;
(ii) any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii) any and all costs associated with recovery of data,
and analyzing, publishing, accessioning and curating materials
when the prohibited activity is so extensive as to preclude the
restoration of the unmarked burials or grave markers;
(iv) any and all costs associated with restoring the land to
its original contour or the grave marker to its original
condition;
(v) any and all costs associated with reinterment of the
human skeletal remains; and
(vi) any and all costs associated with the determination and
collection of the civil damages.
When civil damages are recovered, the proceeds, less the
costs of the prosecuting attorney associated with the
determination and collection of such damages, shall be deposited
into the endangered historic properties fund and may be expended
by the commissioner of culture and history for archaeological
programs at the state level, including the payment of rewards for
information leading to the arrest and conviction of persons
violating the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(3) The commissioner of culture and history is authorized to
offer and pay rewards of up to one thousand dollars from funds on
deposit in the endangered historic properties fund for
information leading to the arrest and conviction of persons who
violate the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(h)
Disposition of remains and artifacts not subject to
reburial.
All human skeletal remains and grave artifacts found in
unmarked graves on public or private land, and not subject to
reburial, under the provisions of subsection (e) of this section,
are held in trust for the people of West Virginia by the state
and are under the jurisdiction of the director of historic
preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect for the
people of the state under the care of the West Virginia state
museum.