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MASSACHUSETTS GENERAL LAWS AND HUMAN BURIALS

Valerie A. Talmage

The discoveries of several human burials in Massachusetts have raised questions about the appropriateness of archaeological excavation and anthropological analysis of human skeletons. Archaeologists, Indians, project planners and the public have voiced concerns which echo similar issues raised in several other states.

Is it legal to excavate human skeletons? Is it appropriate to excavate burials? Does a construction project, such as a highway, or even an individual septic system, take precedence or is the sanctity of a burial place protected? Is it appropriate to rebury excavated skeletons and their associated artifacts? Are burials of Indians provided the same protection which the law affords burials of white people? When is excavation of human burials in the public interest? How should excavations be authorized and administered?

The ethical concerns about archaeological excavation have been articulated most clearly by the Native American community. In Massachusetts the state?s Commission on Indian Affairs has been the spokesman for the native point of view. It has stated that Indians feel that burials of their ancestors should be assured equality under the law and should be treated with the same respect and dignity normally given to Anglo-American burial places. Many Indians feel that excavations of burials are actions which desecrate sacred grounds, and that archaeological work is simply another example of how the civil rights of American Indians are abused. Indians also feel that if a burial has been excavated, the remains should be reburied so that the ceremonial intent of the original interment can be recaptured and protected.

Most archaeologists feel they are conducting a scientific study which would be to the benefit of the modern Indian community. Archaeologists and physical anthropologists can provide otherwise unobtainable information about the lifeways of Indian ancestors. The physical skeleton holds little spiritual value to archaeologists, who see the bones they excavate as repositories of information.

The archaeologist?s scientific attitude towards skeletal remains is not shared by the general public, which tends to view the excavation of human burials as ghoulish. For instance, a recent television report of vandalism at a Massachusetts cemetery condemned the action, not just for being illegal, but as being sick . Many people feel uneasy about archaeological excavations of burials. Many archaeologists themselves are uncomfortable in excavating historic period skeletal remains. The ethical problems which confront any scientist involved in studies of human beings are directly posed for archaeologists in the context of investigations of human burial.

The discovery of a Woodland period single interment on Nantucket (Turchon, this issue) triggered a review of the legal bases of burial protection and excavation in Massachusetts. The Nantucket burial was soon followed by the discovery of an ossuary in Wellfleet (Bradley et al. this issue), which has been succeeded to date by eight additional reports of human burials, both native and non-native.

Only the Nantucket burial was located by archaeologists in the course of field work. Five of the discoveries, including the Wellfleet ossuary, were found accidentally during some kind of construction project. The remaining finds were made by private (non-archaeological) citizens and were discovered in erosional contexts. Only four of the burials were native, although one of these four was the ossuary, containing upwards of fifty individuals. Finally, in only three cases were the burials left in situ prior to contacting the State Archaeologist; other burials were excavated by non-archaeologists, including police, construction crews and children, and brought to the attention of archaeologists after the fact.

The Massachusetts Legislature has never directly addressed the legal and ethical questions raised by the discovery and recovery of ancient burials. The laws which apply are confusing and in some parts contradictory. However, two sentiments are clearly expressed in Massachusetts legislation: (1) the Massachusetts General Laws recognize the right of individuals to an undisturbed place of burial, and (2) the state Antiquities Act is designed as much to regulate archaeologists behavior as to protect sites.

Archaeologists should be aware that the legislature has not convincingly recognized the scientific or archaeological interests in burials, although the public interest in protecting the spiritual values of burial places and interments is well founded in law. Furthermore, the legislature has expressed concern that archaeological work needs regulation to ensure that field investigations are in the public interest. Archaeological rights to excavate burials are not legally recognized.

MASSACHUSETTS ENVIRONMENTAL POLICY ACT

( MEPA LAWS )

(MGL chapter 30, sections 61-62h, as amended)

This law is designed to minimize and regulate damage to the environment resulting from a State controlled project. The definition of damage to the environment includes: destruction of? underwater archaeological resources? natural areas, parks, or historic sites or districts. The MEPA laws outline a procedure to determine if an Environmental Impact Report (EIR) is required for the project. If an EIR is required, then it shall contain statements describing the nature and extent of the proposed project and its impact. The procedures outlined in 950 CMR 71.00 offer a system of compliance compatible with the requirements of MEPA. Competent professionals must assess the project impact to the archaeological remains and then avoid, minimize, or mitigate the effect, if it is adverse, according to these and other laws (MGL c. 9 ss. 26, 27c, 950 CMR 70.00, 950 CMR 71.00)

CHAPTER 659 OF THE ACTS OF 1983,

AN ACTS OF 1983 ,

AN ACT RELATIVE TO CERTAIN SKELETAL REMAINS

This act gives the procedures to follow after discovering unmarked human remains suspected of being over 100 years old. The discoverers must call the county district medical examiner, who will determine whether the remains are 100 years old or more (amendment to MGL c. 38 ss 6b and 6c). If they are he will then contact the State Archaeologist. All work that could conceivably affect such remains must be discontinued (amendment to MGL c. 9 s. 27c). The State Archaeologist will determine if the remains are American Indian and assess the site. If the remains are American Indian, the State Archaeologist will decide, in consultation with the Commission on Indian Affairs, interested people and/or organizations, how to avoid or mitigate impact to the remains, and whether they should be left undisturbed in situ, excavated, studies, or re-interred (MGL c. 9 ss. 26a and 27c). Avoidance and preservation in situ are preferred. A Special Permit is required to excavate any human remains, and the State Archaeologist issues them rarely (see 950 CMR 70.20).

CHAPTER 989 OF THE ACTS OF 1973,

AN ACT ESTABLISHING A BOARD OF UNDERWATER ARCHAEOLOGICAL RESOURCES AND PROVIDING FOR THE PRESERVATION OF SAID RESOURCES.

This act protects archaeological, scientific, and historic resources in coastal and inland waters from unauthorized exploitation. The act also established a State Underwater Archaeology Board, the director of which may give out permits for the orderly salvage or removal of underwater archaeological resources to qualified individuals. The penalty for violating a provision of the act, including operating without a permit, is a fine of up to $1000 and/or a jail sentence of six months. In addition, any resources obtained will be forfeited to the State, whereas if the violator had obtained a permit only 25 percent must be given to the State.

WHAT TO DO WHEN HUMAN BURIALS ARE ACCIDENTALLY UNCOVERED

1. Why are bones sometimes found?

In Massachusetts, many unmarked graves exist without gravestones, fences, tombstones, or other surface indications of their presence. These are chiefly the graves of prehistoric and historic Indians, which may never have been marked at all; and graves which had been identified at one time in the past, but the markings are no longer visible. As a result, bones are often found during ordinary ground disturbance activities such as the construction of new homes, utilities, or roads; in the agricultural or industrial use of a site; or the excavation of sand or gravel borrow. Bones are also sometimes found eroding out of areas exposed by natural erosion, floodwater scouring, or sand dune formation.

A new law has been enacted which establishes procedures to follow when human bones are accidentally discovered.

Who is involved?

Private citizens, State and Local Police, Medical Examiners, State Archaeologist, and the Commission on Indian Affairs.

What should you do if you discover bones?

Do not touch or disturb the bones. Notify the state or local police and the regional medical examiner about the discovery and location.

What does the Medical Examiner do?

The Medical Examiner investigates the discovery to determine whether the bones are human, and whether they are recent or more than 100 years old. If the bones are less than 100 years old, a criminal investigation may be warranted. If the bones are more than 100 years old, the Medical Examiner then notifies the State Archaeologist, who immediately conducts an archaeological investigation of the site. Throughout these investigations, the police authorities must insure that the site is protected from further damage.

What does the State Archaeologist do?

The State Archaeologist investigates the site to determine the age, cultural association and identity of the burial. If the State Archaeologist determines that the burial is that of a Native American, the commission on Indian Affairs is notified. The State Archaeologist consults with the landowner to determine whether the burial can remain undisturbed. In the case of development projects, the owner and State Archaeologist discuss whether there are prudent and feasible steps to avoid future harm to the burial. If it is impossible to avoid future harm to the burial, the State Archaeologist removes the remains.

What does the Commission on Indian Affairs Do?

The archaeological investigation of Indian burials is monitored by the Commission on Indian Affairs to insure that the remains are treated respectfully.

Please remember: Once bones or artifacts are removed from the site, valuable information concerning the identity and age of the human remains is lost. Therefore, it is important not to disturb the site in any way until the State Archaeologist can conduct an investigation and record the discovery.

BIBLIOGRAPHY

Massachusetts General Laws, Chapter 38, section 6B; Chapter 9, section 26A 27C; Chapter 7, Section 38A; Chapter 114, section 17; as amended by Chapter 659 of the Acts of 1983 and Chapter 386 of the Acts of 1989.

For further information: Please contact the State Archaeologist at the Massachusetts Historical Commission.

William Francis Galvin, Secretary of the Commonwealth

Chairman, Massachusetts Historical Commission

Massachusetts Archives Building, 220 Morrissey Boulevard, Boston, MA 02125

Phone: (617)727-8470 Fax: (617)727-5128 TDD: 1-800-392-6090