Section 38A. Upon the receipt of the commission of notice under section six B of chapter thirty-eight that a site evaluation will be made to determine if skeletal remains are American Indian, the commission may designate a representative to be present when said site evaluation is made. If the state archaeologist and commission determine that said remains are American Indian, the owner of the land whereon the remains were discovered, the state archaeologist, the commission and other interested parties shall determine whether prudent and feasible alternatives exist to avoid, minimize or mitigate harm to the Indian burial site. If it is not prudent and feasible to preserve the remains in the original Indian burial site then the state archaeologist shall excavate and recover the remains under the supervision of the commission on Indian affairs. The commission and state archaeologist shall then consult to determine how the remains shall be disposed.

The final plan or agreement, which shall be in writing, may include provisions for preservation in situ; or the conducting of additional scientific and archaeological research and investigation with the approval of the commission on Indian affairs, or the immediate reinterment of the remains or with the consent of the site's owner, or the execution of a preservation restriction pursuant to section thirty-two of chapter one hundred and eighty-four. If it is determined that the remains are to be reinterred it shall be the responsibility of the commission on Indian affairs to conduct the reinterment.

The state archaeologist and commission shall consult to determine whether a skeletal analysis shall be made; said analysis must be completed within one year of the date of approval. If more than one year is required to conduct said analysis, the commission and state archaeologist shall consult to determine whether the one year may be extended. If they fail to agree on whether the skeletal analysis shall be extended for more than one year, they shall each designate three qualified persons who shall meet and make a recommendation to the commission on Indian affairs on whether a skeletal analysis of the remains shall be made. The commission shall make the final decision on whether a skeletal analysis of the remains shall be conducted for longer than one year. It will be the responsibility of the commission on Indian affairs to reinter the remains when the skeletal analysis is completed.