22-3-902. Legislative findings and intent. (1) The legislature of the state of Montana finds that:

(a) since July 1, 1991, and passage of the Human Skeletal Remains and Burial Site Protection Act, Montana law has provided a mechanism to protect marked, unmarked, unrecorded, registered, or unregistered graves or burial grounds discovered on state and private land from pilferage, disturbance, and destruction in an effort to provide equal protection and respect for all burial sites, human skeletal remains, and funerary objects;

(b) despite the state's success in balancing the interests of those persons who have tribal, kinship, cultural, or religious affiliation with a burial site with the interests of scientists, agencies, law enforcement, and private landowners, the 1991 Human Skeletal Remains and Burial Site Protection Act did not provide a mechanism to repatriate culturally affiliated human skeletal remains or funerary objects that were taken from burial sites prior to July 1, 1991;

(c) funerary objects interred with culturally affiliated human skeletal remains are not abandoned when interred. Discoverers, therefore, have no right of ownership, and they cannot confer a right of ownership to another because the person who interred funerary objects with the deceased did not through interment abandon a property interest in the objects, but intended for those objects to remain with the deceased.

(d) the state of Montana has an obligation to avoid infringing upon the right to religious beliefs and practices guaranteed to all citizens under the free exercise clause of the first amendment of the United States constitution and under Article II, section 4, of the Montana constitution and to preserve the cultural integrity of American Indian citizens recognized by the state under Article X, section 1(2), of the Montana constitution;

(e) the state of Montana acknowledges the paramount privacy right of a tribal group, lineal descendant, next of kin, agency, or museum to protect sensitive and sacred information that may be required to be disclosed to demonstrate cultural affiliation or lineal descent and therefore authorizes the protection of that information to the full extent allowed by the Montana constitution; and

(f) the state of Montana acknowledges the right of an agency, museum, or person to maintain possession or control of human skeletal remains or funerary objects that are currently under scientific study or that require testing prior to the effective date of the board's determination regarding repatriation.

(2) It is the intent of the legislature to:

(a) provide a consistent state policy to ensure that all human skeletal remains and all funerary objects interred with those human skeletal remains be treated with dignity and respect;

(b) encourage voluntary disclosure and repatriation of culturally affiliated human skeletal remains and funerary objects by an agency, museum, or person;

(c) provide a mechanism to provide for repatriation of human skeletal remains and funerary objects to a tribal group, lineal descendant, or next of kin establishing cultural affiliation with those human skeletal remains or funerary objects that were taken from unprotected burial sites prior to July 1, 1991, and that are currently in the possession or control of an agency, museum, or person in this state; and

(d) protect the right of privacy guaranteed to tribal groups, lineal descendants, next of kin, agencies, or museums regarding the disclosure of sacred or religious information to the full extent allowed by the Montana constitution.

History: En. Sec. 2, Ch. 558, L. 2001.