16 Miss. Code. R. 3-11.4

Current through October 31, 2024

Rule 16-3-11.4 - Treatment of Human Remains

It is the responsibility of the archaeologist to comply with all state and federal legislation (e.g., Mississippi Antiquities Law, Native American Graves Protection and Repatriation Act) concerning archaeological sites and the treatment of Native American human remains encountered during archaeological investigations. Additionally, some agencies have internal guidelines governing the treatment of human remains (e.g., USDA Forest Services Human Remains Policy), and these should also be consulted when applicable. If non-Native American human remains are discovered, then the principal investigator should immediately notify the county coroner, sheriff, and/or board of supervisors to begin consultation. Should aboriginal human remains be discovered, archaeological activities (e.g., shovel testing, test excavations, mechanical stripping) should cease in that area. The field archaeologist should contact the governing/contracting agency for further instruction. In the absence of Federal involvement, if Native American burials are encountered on state, county, municipal or private land, the field archaeologist should contact MDAH-SHPO and apply for a burial excavation permit. Burial excavation permits may also be applied for in anticipation of encountering burials. Work may continue in the area once a burial excavation permit has been granted by MDAH-SHPO. Encountered aboriginal human remains shall be recorded, handled, and protected according to the stipulations stated in the permit.

Under the provisions of the State Antiquities Law (39-7-31), the Board of Trustees of MDAH is given the responsibility of considering and permitting, if deemed appropriate, the excavation of prehistoric or historic Indian burials. Specifically, 39-7-31 states:

No person without a permit from the board and without written permission of the landowner, shall intentionally injure, disfigure, remove, excavate, damage, take, dig into, or destroy any prehistoric or historic American Indian or aboriginal burial.

As stated in 39-7-3 (Declaration of Public Policy), it is the policy of the State of Mississippi and in the interest of the State to protect and preserve archaeological sites of every character. Burials in the context of the Antiquities Law are archaeological sites. They are, however, very special kinds of archaeological sites that are given additional legal protection by other laws. For this reason, burials are the only type of site for which MDAH-SHPO has legal authority on private property, except for Mississippi Landmarks for which this authority is voluntarily given by the landowner.

In order to prevent confusion and to establish clear directives, the following guidelines are instituted:

A. No permit will be issued unless the excavation is to be performed or supervised by an archaeologist meeting the aforementioned professional qualifications. It is recommended that a physical anthropologist be present during the excavation to ensure the recovery of a maximum amount of pertinent information.

B. A report, following the guidelines established in this document, detailing the findings of the excavation, including photographs and sketches, must be submitted to MDAH-SHPO within one year of completion of the excavation.

C. If the burial/s in question is reasonably expected to be of a known, existing tribe, the written comments of that tribe shall be sought and, if obtained, submitted in written form to MDAH-SHPO when application is made for a permit.

D. The remains are to be curated in a facility that meets or exceeds standards set forth in 36 CFR 79 or reburied after scientific analysis. The decision on whether to require reburial will be determined by MDAH-SHPO after reviewing documentation submitted with the request for a burial excavation permit (see Step 3).

E. Permits to excavate burials will not be issued in most circumstances unless there is a threat to the integrity of the burial/s through vandalism, natural forces (e.g., erosion, inundation), or development that is clearly in the public interest.

F. For purposes of these guidelines, a burial is understood to include the items that are interred with the body/human remains.

G. In the event of the unintended discovery of burials during the course of an excavation, the encountered remains are to be recorded in such a manner as to minimize the loss of scientific data. A burial excavation permit is to be sought, if the archaeologist wishes to continue with the burial excavation/removal.

H. MDAH-SHPO may, as it finds advisable, call for a written proposal from the applicant on the procedure for burial removal and reserves the right to deny the participation of any archaeologist. Such written proposals should address the adequacy of crew size and experience, laboratory and temporary curation facilities, as well as arrangements for long-term curation or reburial of remains.

16 Miss. Code. R. 3-11.4

Miss. Code §§ 39-7-3, 39-7-31, 25-59-1 (1972, as amended).