The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 70 - Skeletal Remains and Burial Site Preservation*

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*Cross references: Real property, ch. 47; zoning, ch. 61; burial, ch. 90.
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Article I - In General
Article II - Burial Sites Preservation

ARTICLE I. IN GENERAL

Sec. 70-1. Excavation of skeletal remains.

(a) The graves of Cherokee people and their ancestors are sacred and shall not be disturbed or excavated.

(b) In the event skeletal remains of a Cherokee are excavated, such remains shall be reburied, together with all associated grave artifacts as soon as shall be reasonable possible. All such remains disinterred outside Cherokee trust lands shall be reburied in a manner consistent with procedures set forth by the NAGPRA Committee with the procedures being first approved by the Tribal Council of the Eastern Band of Cherokee Indians.

(c) The remains of Cherokee people shall not be subjected to destructive skeletal analysis.

(d) All unassociated funerary objects shall be treated in a manner consistent with procedures set forth by the NAGPRA Committee with the procedures being first approved by the Tribal Council of the Eastern Band of Cherokee Indians.

(Res. No. 92, 1-30-1983; Ord. No. 57, 2-1-1996)

Sec. 70-2. Sanctity of ancestors who are buried throughout the aboriginal Cherokee lands.

The joint policy of the Tribal Council of the Cherokee Nation and the Eastern Band of Cherokee is as follows:

(a) The graves of our ancestors are sacred and we desire that they not be disturbed.

(b) In the event the remains of Cherokee ancestors are excavated, such remains shall be reburied together with all associated grave artifacts, as soon as shall be reasonable.

(c) The remains of Cherokee ancestors should not be subjected to destructive skeletal analysis.

(d) The remains of Cherokee ancestors and associated grave artifacts which have been disinterred and are now in possession of museums, universities, federal agencies or other institutions and persons, should be returned to the proper tribes for reburial.

(e) Such remains should be buried at the original site where possible.

(Res. No. 121, 4-5-1990; Res. No. 301, 5-29-1991)

Sec. 70-3. Historic preservation of skeletal remains.

(a) All persons or institutions who seek to conduct study or research on the people or institutions of the Eastern Band of Cherokee Indians, including but not limited to Tribal members, Tribal organizations, Tribal government and Tribal lands and natural resources shall be required to obtain approval from the Eastern Band of Cherokee Indians prior to conducting such research on Cherokee trust lands.

(b) All persons or institutions seeking to conduct a study or research on Cherokee Indian trust lands shall submit a written request to the Office of the Principal Chief, with the request describing the nature and purpose of the proposed study or research. The written request shall be forwarded by the Office of the Principal Chief to the Tribal Research Committee for review and approval. The Research Committee shall give written authorization only after reviewing the proposal.

(c) As a condition of receiving written authorization from the Committee, all persons or institutions must agree, in writing, to provide to the Tribe, at the conclusion of the study or research, a copy of all collected data, completed reports or publications, including copies of audio or video tapes or recordings obtained in the course of such study or research.

(d) Unless otherwise provided for by the Tribal Council, all such data, reports, publications, video or audio tapes or recordings shall be deposited for permanent storage with the Museum of the Cherokee Indian.

(e) This section shall become effective upon ratification by the Principal Chief.

(Ord. No. 176, 7-9-1992)

Secs. 70-4—70-100. Reserved.

ARTICLE II. BURIAL SITES PRESERVATION

DIVISION 1. GENERALLY

Sec. 70-101. Title.

The title of this article shall be the Burial Sites Preservation Code.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-102. Purpose.

The purpose of this article is to amend this chapter 70, Skeletal Remains, adopted on April 5, 1990, and amended on May 29, 1991, rescind any portions of this chapter which are inconsistent with this article; and to establish a registry providing for the recording and cataloging of burial sites of Tribal members and to preserve and protect such sites from disturbance, disinterment, or other destructive activities.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-103. Authority.

This article is enacted pursuant to section 23 of the Tribe's Charter and Governing Document.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-104. Effective date.

This article shall take effect on the day following adoption by the Cherokee Tribal Council.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-105. Abrogation and greater restriction.

Where this article imposes greater restrictions than those contained in other ordinances, codes, or resolutions of the Tribe, as well as relevant federal laws and regulations, this article shall govern.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-106. Interpretation.

In the interpretation and application of the provisions of this article, said provisions shall be held to the minimum requirements and shall be liberally construed in favor of the Tribe and shall not be deemed a limitation or repeal of any other power or authority of the Tribe.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-107. Nonliability and severability.

If any section, provision, or portion of this article is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this article shall not be affected thereby. The Tribe declares there is no liability on the part of the Tribe, its agencies, or employees that may occur as a result of reliance upon the conformance with this article.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-108. Sovereign immunity.

This article shall not be construed as a waiver, limited or otherwise, of the Tribe's sovereign immunity.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-109. Applicability.

The policies in this article shall apply to all members and employees of the Tribe, all activities on lands owned by the Tribe or held in trust by the United States for the benefit of the Tribe, all individuals occupying Tribal lands, and all lands owned in fee by the Tribe or a member of the Tribe within the boundaries of the Tribe's Reservation.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-110. Definitions.

(1) Agricultural or silvicultural activities means those normal agricultural or silvicultural practices that do not disturb the human remains in a burial site or the surface characteristics of a burial site.

(2) Burial site means any place of interment, by any means, natural or a physically prepared location, whether originally below, on, or above the surface of the earth, where human remains or associated funerary objects are deposited, as part of the death rites or ceremonies of the Tribe.

(3) Cemetery means a burial site in which two or more individuals were interred.

(4) Cultural patrimony is defined as an object having ongoing historical, traditional, or cultural importance central to the Tribe or its culture.

(5) Duly authorized law enforcement official means any law enforcement personnel of the Cherokee Police Department or any law enforcement officer delegated authority to enforce the laws of the Tribe pursuant to chapter 15, section 3, "Cooperative Law Enforcement Arrangements."

(6) Disturb includes defacing, mutilating, injuring, exposing, removing, destroying, desecrating, or molesting in any way.

(7) Grave goods means objects, that as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later.

(8) Human remains means any part of the body or deceased person in any stage of decomposition.

(9) Person means any individual or entity, including a governmental operation or political subdivision of a state or Tribe, or any interstate body and shall include each department, agency, and instrumentality of the United States.

(10) THPO means the Tribal Historic Preservation Officer.

(Ord. No. 345-A, 10-13-1998)

Secs. 70-111—70-200. Reserved.


DIVISION 2. TRIBAL HISTORIC PRESERVATION OFFICE

Sec. 70-201. Generally.

(a) A Tribal Historic Preservation Office shall be established to increase efforts in the location, documentation and evaluation of ancient, cultural, and historic properties. This information will provide a record of the past for future generations of the Tribe and shall be incorporated into the Tribe's planning and development approval process.

(b) A Tribal Historic Preservation Officer shall be appointed to develop a file of identified historic properties within the exterior boundaries of the Eastern Band of Cherokees. This file will also contain a history of areas that have been surveyed and found not to comprise historical or cultural properties. The Tribal Historic Preservation Officer shall be solely responsible for the active collection and cataloging of known historic properties, surveyed areas and the locations of potential archaeological sites.

(c) The Tribal Historic Preservation Officer shall be responsible for the issuance of Permits to Proceed with Ground Disturbing Activities on Tribal Lands (see division 4 of this article).

(Ord. No. 345-A, 10-13-1998)

Sec. 70-202. Registry.

From the file of identified historic properties under section 70-201(b), the Tribal Historic Preservation Office shall establish a Registry for any Tribal member to view. Any information in the Registry related to the location of any burial site, the disclosure of which would be likely to result in a disturbance of the burial site, is not subject to disclosure under this section.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-203. Repository.

The Museum of the Cherokee Indian shall be the permanent repository for any items of cultural patrimony discovered on Tribal lands that the Tribe decides not to reinter. Access to, and the use of, such materials collected for educational and research purposes shall be controlled by the Board of Directors (or whichever body is delegated this responsibility) under policies and procedures it shall develop, subject to the approval of the Cherokee Tribal Council.

(Ord. No. 345-A, 10-13-1998)

Secs. 70-204—70-300. Reserved.

DIVISION 3. BURIAL SITES AND TREATMENT OF HUMAN REMAINS

Sec. 70-301. Nondisturbance of burial sites, cemeteries, human remains, and grave goods.

No person shall knowingly excavate or disturb a burial site, cemetery, human remains, or grave goods. No person may intentionally cause or permit the disturbance of a burial site or cataloged land contiguous to a cataloged burial site. A person shall immediately notify the Historic Preservation Office if the person knows or has reasonable grounds to believe that a burial site or the cataloged land contiguous to a cataloged burial site is being disturbed or may be disturbed contrary to this article. This article does not prohibit agricultural or silvicultural activities.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-302. Permitted removal and disturbance to burial sites, cemeteries, human remains, and grave goods.

(a) Only in the extreme cases of imminent destruction or accidental discovery may burial sites, cemeteries, human remains or grave goods be approved for intentional disturbance. When disturbance is found to be necessary, Tribal spiritual leaders and the Tribal Council and individuals approved to conduct the excavation or exposure will discuss the importance of what is being contemplated and agree to a procedure in writing under which the disturbance shall be carried out.

(b) At all times during the process of disturbing any human remains, a representative of the Tribe shall be available on-site to assist and ensure that the parties employed to remove or expose any human remains or grave goods carry out the procedure along the guidelines set forth in the consultation meeting as required in section 70-302(a).

(Ord. No. 345-A, 10-13-1998)

Sec. 70-303. Burial and scientific analysis.

Reserved for discussion and/or future use.

(Ord. No. 345-A, 10-13-1998)

Secs. 70-304—70-400. Reserved.

DIVISION 4. PERMITS TO PROCEED WITH GROUND DISTURBING ACTIVITIES ON TRIBAL LANDS AND WATERS

Sec. 70-401. Permit requirements.

Prior to beginning any ground disturbing activities on Tribal lands and waters, all Tribal members, Tribal employees, lessees, individuals and organizations contracting with the Tribe, and individuals representing government agencies shall have a signed permit to proceed from the Tribal Historic Preservation Office.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-402. Procedures for obtaining a permit to proceed.

(a) Submission of application for permit to proceed. Prior to beginning any ground disturbing activities on Tribal lands and waters, all Tribal members, Tribal employees, lessees, individuals and organizations contracting with the Tribe, and individuals representing government agencies shall complete and submit an application form for a permit to proceed from the Tribal Historic Preservation Officer. The Tribal Historic Preservation Officer shall review the application, and determine, following a review of the existing Tribal Historic Preservation Office files covering that area, if an archaeological field investigation will be required. The THPO shall notify the applicant within 30 days of a decision to deny such permit.

(b) Archaeological review. All areas on Tribal lands and waters to undergo earth disturbing activities, not specifically excluded below under section 70-404, and not previously investigated for the presence of archaeological, historical, or cultural remains, shall be subject to the archaeological review process to determine the presence of such remains as part of the application for a Permit to Proceed. The THPO shall notify the applicant within 30 days of any decision to deny such a permit. The archaeological review consists of the following:

(1) File search. Prefield investigations--THPO staff check files and atlas recording the locations of identified historic properties and the locations of areas previously investigated.

(2) Field archaeology. The project area presented in the permit application is investigated by a qualified archaeologist to record and describe any identified historic properties.

(c) Permit contingencies. Based on the results of the archaeological review, the Tribal Historic Preservation Officer will determine whether or not a Permit to Proceed will be granted for the commencement of the ground disturbances related to the project being considered. The Tribal Historic Preservation Officer shall determine:

(1) Permit to Proceed granted, no contingencies;

(2) Permit to Proceed granted, with contingencies;

(3) Permit to Proceed not granted, project may not proceed following plans presented to the Tribal Historic Preservation Officer.

The permit applicant may resubmit a new application based upon changes made in consultation with the THPO to remove or minimize any impacts to identified historic properties.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-403. Appeal of denied permits to proceed.

Any denied permits may be appealed by the applicant by requesting a hearing in writing within 14 days to the Tribal Council. Said determination from the Tribal Council shall be final.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-404. Tribal lands and waters that may be excluded from field archaeology investigation.

The Tribal Historic Preservation Officer may permit the following areas to be excluded from field archaeology investigations:

1. Garden construction and gardening in general.

2. Projects less than one square meter in size (i.e., digging postholes, planting trees).

3. Projects that will not disturb the ground (i.e., mowing lawn, winter logging with snow coverage).

4. Swampy areas or areas with mucky soils.

5. Locations directly on slopes which would prohibit construction of dwellings or settlements.

6. Maintenance activities including, but not limited to: basic road maintenance, grading and snowplowing.

7. Areas already disturbed to a depth greater than three feet (i.e., gravel pits).

8. Any area that has previously undergone an archaeological survey the result of which no cultural materials were found.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-405. Payment for field archaeology surveys of Tribal lands leased by Tribal members.

Required Field Archaeological Surveys of individual or business leases held by Tribal members shall be paid for by the developer, to be arranged by the Tribal Historic Preservation Officer. Projects receiving funding from federal agencies are not covered by this Tribal resolution and must provide the cost of required field archaeology surveys independently.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-406. Requirement of qualified archaeologist.

Archaeological surveys shall be completed by an archaeologist meeting the Department of Interior's Standards for Archaeologists, or by a Tribal Archaeology Para-Professional under the supervision of a qualified archaeologist.

(Ord. No. 345-A, 10-13-1998)

Secs. 70-407—70-500. Reserved.

DIVISION 5. PERMITS TO CONDUCT ARCHAEOLOGICAL INVESTIGATIONS

Sec. 70-501. Required.

All individuals intending to conduct archaeological investigations or engaging in the excavation or removal of archeological materials from Tribal lands must have a Permit to Conduct Archaeological Investigations signed by the Tribal Historic Preservation Officer. In addition to requesting and acquiring a Permit to Conduct Archaeological Investigations, the individual(s) must follow the process outlined in division 4 of this article titled,"Permits to Proceed with Ground Disturbing Activities on Tribal Lands and Waters."

(Ord. No. 345-A, 10-13-1998)

Sec. 70-502. ARPA permits for nonTribal members.

Any individual that is not a Tribal member must have a valid ARPA permit signed by the Area Director of the BIA-MAO as required in 25 C.F.R. § 262.4.

(Ord. No. 345-A, 10-13-1998)

Sec. 70-503. Permits to conduct field archaeology on fee land within the exterior boundaries of the Reservation (if applicable).

Any individual wishing to conduct field archaeology on fee land within the boundaries of the Reservation should contact the Office of the State Archaeologist of North Carolina to determine the need for and process of applying for a state permit or license to conduct field archaeology and provide notice to the Eastern Band of Cherokee Tribal Historic Preservation Office of project plans and location of ground disturbing activities.

(Ord. No. 345-A, 10-13-1998)

Secs. 70-504—70-600. Reserved.

DIVISION 6. ENFORCEMENT AND PENALTIES

Secs. 70-601—70-603. Reserved.

Sec. 70-604. Penalties.

(1) Any person who fails to report the disturbance of a burial site or the cataloged land contiguous to a cataloged burial site as required under subsection (3) shall forfeit not less than $100.00 nor more than $1,000.00.

(2) Any person who intentionally disturbs a burial site which is not cataloged without the authorization of the Tribe shall forfeit not less than $500.00 nor more than $2,000.00.

(3) Any owner who intentionally causes or permits any activity which disturbs a burial site after receiving notice from the Tribe without the authorization shall forfeit not less than $1,000.00 nor more than $5,000.00.

(4) Any person who disturbs a burial site for commercial gain not related to the use of the land where a burial site is located or who disturbs a cataloged burial site for commercial gain related to use of the land where a burial site is located in violation of this article may be fined not to exceed two times the gross value gained or two times the gross loss caused by the disturbance, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred.

(Ord. No. 345-A, 10-13-1998)

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