What To Do If You Find Indian Remains During Construction
Jany K. Jacob
(Reprinted from Seattle Daily Journal of Commerce)

        Many contractors at one time or another have been in a situation where tribal human remains or artifacts were unearthed during the course of construction. Some recalcitrant contractors who continued with the construction work in spite of such a discovery have faced criminal charges for gross negligence as a result. The Department of Community Trade and Economic Development (CTED) regulates the preservation of Indian remains in Washington. The State Archaeologist and the State Historic Preservation Officer are located in the CTED. The U.S. Department of Interior regulates these issues on federal or tribal lands.

        Washington’s Indian Graves and Records Act (IGRA), codified at RCW Chapter 27.44, prohibits the removal of materials from Indian graves or cairns. RCW 27.44.040(1) declares that “any person who knowingly removes, mutilates, defaces, injures, or destroys any cairn or grave of any native Indian…is guilty of a class C felony. Persons disturbing native Indian graves through inadvertence, including disturbance through construction, mining, logging…shall reinter the human remains under the supervision of the appropriate Indian tribe.”

        A similar federal law, the Native American Graves Protection and Repatriation Act (NAGPRA), codified at 25 U.S.C. § 3001, et seq., regulates the disturbance of Indian graves on federal or tribal lands. 25 U.S.C. § 3002(d)(1) mandates that “any person who knows, or has reason to know, that such person has discovered Native American cultural items …shall notify, in writing, (the Secretary of the Interior) and the appropriate Indian tribe…if known or readily ascertainable….” The federal statute goes on to state that “if the discovery occurred in connection with…construction, mining, logging…the person shall cease the activity in the area of the discovery, make a reasonable effort to protect the items discovered before resuming such activity, and provide notice.” Construction activities may resume after thirty days of the receipt of certification that the contractor has met the notification requirements of NAGPRA. The regulations promulgated under this federal act impose other specific requirements that may be found at 43 C.F.R. 10.

        Contractors unearthing bones that look like they could be human should stop work immediately, especially if pottery shards or ceremonial objects are discovered in close proximity to the bones. They should then notify the owner and report the discovery to the proper authorities. RCW 27.44.040(4) provides that “it shall be a complete defense in the prosecution…if the defendant can prove…that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains…and that the accidental disturbance was properly reported.” Once reported, the State Historic Preservation Officer must contact indigenous tribes to resolve issues of the appropriateness of further excavation or reburial of the human remains. A permit may then have to be obtained to remove Native human remains from the project site.

        Contractors are also prohibited from disturbing archaeological sites other than burial sites without a permit. RCW 27.53.060 states that “it shall be unlawful for any person, firm, corporation…to knowingly remove, alter, dig into, or excavate by use of any mechanical, hydraulic, or other means, or to damage, deface, or destroy any historic or prehistoric archaeological resource or site, or remove any archaeological object from such site…without having obtained a written permit….” Regulations pertaining to the issuance of archaeological excavation and removal permits may be found at WAC Chapter 25-48. A similar federal law, the Archaeological Resources Protection Act (“ARPA”), codified at 16 U.S.C. Sect. 470 aa-mm, protects archaeological sites older than 100 years on public lands or tribal lands. ARPA allows for the issuance of permits and imposes fines (or imprisonment) for violations of the law.

        All this means that the discovery of Indian graves or artifacts on the project site may result in costly construction delays. However, contractors striving to keep a project on budget and on schedule may be able to work around the discovery so long as the affected work is not on the critical path.

        In addition to state and federal regulators, contractors may have to worry about civil suits brought by tribal governments or individual tribal members. RCW 27.44.050 provides, “[A]n Indian tribe or enrolled member thereof, shall have a civil action to secure an injunction, damages, or other appropriate relief….” Under IGRA, such plaintiffs may additionally be entitled to an award of their attorneys fees and punitive damages for willful violations of the law. Tribal members may also be able to bring a tort action for “emotional distress” damages caused by the desecration of ancestral Indian burial grounds.

        Native American reburial issues are highly charged and contractors should avoid involvement if at all possible. A good way to do this is to consult an archaeologist if it looks like a job is in a sensitive area such as near a known Indian village. Ideally, this should be done before commencing earthwork. A culturally sensitive approach will go a long way in preserving a construction company’s business goodwill with tribal communities. It will also speed up the process of obtaining a permit for the removal of culturally significant materials should they ever be uncovered during construction.