22-3-913. Hearing -- hearings examiner -- evidence -- study or testing order and costs -- findings. (1) The board shall appoint an attorney licensed to practice law in Montana as a hearings examiner to hold a hearing pursuant to Title 2, chapter 4, part 6, on a claim filed under 22-3-912. At a hearing under this section, the hearings examiner shall hear the evidence presented by each party, including evidence presented by a possessing entity or intervenor in support of a request for a temporary delay in repatriation made under 22-3-915.

(2) Either party or an intervenor may request and is responsible for the cost of genetic or other study or testing necessary to determine cultural affiliation. Upon such a request, the hearings examiner may order any study or testing necessary and may require a surety bond to ensure protection of human skeletal remains or funerary objects. The hearings examiner may grant the study or testing requested along with sufficient time to conduct the study or testing or may deny any study or testing requested upon a finding that the study or testing would not likely be pertinent to the determination of cultural affiliation.

(3) (a) If, based on a preponderance of the evidence, the hearings examiner finds that the claimant has a cultural affiliation with the human skeletal remains or funerary objects and that the possessing entity does not have the right of possession, the hearings examiner shall recommend to the board that the board order repatriation under 22-3-916. If the hearings examiner finds that there is a need to temporarily delay repatriation based on an ongoing scientific study or a good faith effort toward scientific study under 22-3-915, the hearings examiner shall recommend a delay as provided in 22-3-915.

(b) If, based on a preponderance of the evidence, the hearings examiner finds that the claimant has not proven that the claimant has a cultural affiliation with the human skeletal remains or funerary objects and that the possessing entity has the right of possession, the hearings examiner shall recommend to the board that the board deny the claimant's request for repatriation and shall recommend that the board order that the possessing entity be granted uncontested control and possession of the human skeletal remains or funerary objects under 22-3-916.

(c) A recommendation under this subsection (3) shall be made in the form of a proposal for decision as provided in 2-4-621. The provisions of 2-4-621 apply to a recommendation made under this subsection (3).

(4) If the hearings examiner recommends repatriation, the hearings examiner shall issue an order requiring the possessing entity to consult with the claimant to arrange for the expeditious repatriation of the culturally affiliated human skeletal remains or funerary objects to the claimant, upon order of the board under 22-3-916.

History: En. Sec. 6, Ch. 558, L. 2001.