HB3413ham001 103RD GENERAL ASSEMBLY

Rep. Mark L. Walker

Filed: 3/2/2023

10300HB3413ham001 LRB103 30307 RLC 57840 a

AMENDMENT TO HOUSE BILL 3413

AMENDMENT NO. ______. Amend House Bill 3413 by replacing everything after the enacting clause with the following:

"Section 5. The Archaeological and Paleontological Resources Protection Act is amended by changing Sections .02 and 5 as follows:

(20 ILCS 3435/.02) (from Ch. 127, par. 133c.02)

Sec. .02. For purposes of this Act:

(a) "Archaeological resource" means any significant material remains or localities of past human life or activities on public land, including but not limited to artifacts, historic and prehistoric human skeletal remains, mounds, earthworks, shipwrecks, forts, village sites or mines.

(b) "Disturb" includes defacing, mutilating, injuring, exposing, removing, destroying, desecrating or molesting in any way.

(c) "Paleontological resource" means any significant fossil or material remains on public lands including traces or impressions of animals or plants that occur as part of the geological record that are known and are included in the files maintained by the Illinois State Museum under Section 10.

(d) "Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation or a receiver, trustee, guardian or other representative appointed by order of any court, the federal and State governments, including State universities created by statute or any city, town, county or other political subdivision of this State.

(e) "Public land" means any land owned, but does not include land leased as lessee, by the State of Illinois or its agencies, a State university created by statute, a municipality or a unit of local government.

(Source: P.A. 86-459; 86-707.)

(20 ILCS 3435/5) (from Ch. 127, par. 133c5)

Sec. 5. Any violation of Section 3 not involving the disturbance of human skeletal remains is a Class A misdemeanor and the violator shall be subject to imprisonment and a fine not in excess of $5,000; any subsequent violation is a Class 4 felony. Any violation of Section 3 involving disturbance of human skeletal remains is a Class 4 felony. Each disturbance of an archaeological site or a paleontological site shall constitute a single offense. Persons convicted of a violation of Section 3 shall also be liable for civil damages to be assessed by the land managing agency and the Department of Natural Resources. Civil damages may include:

(a) forfeiture of any and all equipment used in acquiring the protected material;

(b) any and all costs incurred in cleaning, restoring, analyzing, accessioning and curating the recovered materials;

(c) any and all costs associated with restoring the land to its original contour;

(d) any and all costs associated with recovery of data and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the archaeological or paleontological site;

(e) any and all costs associated with the determination and collection of the civil damages.

When civil damages are recovered through the Attorney General, the proceeds shall be deposited into the Historic Sites Fund; when civil damages are recovered through the State's Attorney, the proceeds shall be deposited into the county fund designated by the county board.

(Source: P.A. 100-695, eff. 8-3-18.)

Section 10. The Human Skeletal Remains Protection Act is amended by changing Sections 0.01, 1, 3, 4, 4.5, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, and 16 and by adding Sections 3.5, 17, and 18 as follows:

(20 ILCS 3440/0.01) (from Ch. 127, par. 2660)

Sec. 0.01. Short title. This Act may be cited as the Human Skeletal Remains Protection Act.

(Source: P.A. 86-1324.)

(20 ILCS 3440/1) (from Ch. 127, par. 2661)

Sec. 1. Definitions. For the purposes of this Act:

(a) "Human skeletal remains" include the bones and decomposed fleshy parts of a deceased human body.

(b) "Unregistered graves" are any graves or locations where a human body has been buried or deposited; is over 100 years old; and is not in a cemetery registered with or licensed by the State Comptroller under the Cemetery Care Act or under the authority of the Illinois Department of Financial and Professional Regulation pursuant to the Cemetery Oversight Act, whichever is applicable.

(c) "Grave artifacts" are any item of human manufacture or use that is associated with the human skeletal remains in an unregistered grave.

(d) "Grave markers" are any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with an unregistered grave.

(e) "Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation or a receiver, trustee, guardian or other representatives appointed by order of any court, the Federal and State governments, including State Universities created by statute or any city, town, county or other political subdivision of this State.

(f) "Disturb" includes excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way human skeletal remains, unregistered graves, and grave markers.

(g) "Consultation" means a formal, two-way, government-to-government dialogue between official representatives of federally recognized tribes and the United States Department of Interior to discuss federal proposals before the United States Department of the Interior makes decisions on those proposals. The United States Department of the Interior, the Department of Natural Resources, and the Illinois State Museum shall provide sufficient notice to appropriate federally recognized tribal leaders of upcoming consultation sessions and, following the consultations sessions, report to those tribal leaders how the final decision incorporates tribal input.

(Source: P.A. 96-863, eff. 3-1-10; 97-679, eff. 2-6-12.)

(20 ILCS 3440/3) (from Ch. 127, par. 2663)

Sec. 3. Notification to coroner. Any person who discovers human skeletal remains subject to this Act shall promptly notify the coroner within 48 hours. Any person who knowingly fails to report such a discovery within 48 hours is guilty of a Class C misdemeanor, unless such person has reasonable cause to believe that the coroner had already been so notified. If the human skeletal remains appear to be from an unregistered grave, the coroner shall promptly notify the Department of Natural Resources prior to their removal. Nothing in this Act shall supersede applicable federal law, including the Native American Graves Protection and Repatriation Act of 1990 and the National Historic Preservation Act of 1966 shall be construed to apply to human skeletal remains subject to "An Act to revise the law in relation to coroners".

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/3.5 new)

Sec. 3.5. Native American Review Group. The State of Illinois presents a unique situation in that it has not maintained meaningful consulting relationships with tribal nations aboriginal to the land now known as the State of Illinois. Without meaningful relationships between the State of Illinois and tribal nations, there has been harm caused to tribal nations and trust needs to be rebuilt as the State works to correct those harmful mistakes. As tribal nations strengthen their histories, it is of utmost importance to uphold federal law and policy in relation to the sovereign status of tribes. For the purpose of this Act, federal laws related to Native Americans, including the Native American Graves Protection and Repatriation Act of 1990 and the National Historic Preservation Act of 1966, shall take precedence over State law. Despite the State of Illinois' long history of removing tribal nations, this Act requires that a project that may affect a historical property of religious and cultural significance to the affected tribe or tribes be subject to consultation and review from the Native American Review Group at the Illinois State Museum. Historical properties of religious and ceremonial significance include: archeological sites, burial grounds, mounds, sacred landscapes or features, plant and animal communities, and buildings and structures with significant tribal association. The types of activities that may affect properties of religious and cultural significance include: ground disturbance (digging); new construction in underdeveloped natural areas; introduction of incongruent visual, audible, or atmospheric changes; work on a building with significant tribal association; and transfer, lease, or sale of properties of the types listed.

The Native American Review Group shall be appointed by the Director of Natural Resources and shall consist of at least one tribal representative from each one of the over 30 tribal nations that have been identified as having historical presence in Illinois. These representatives shall be a tribal chairperson, tribal historic preservation officer, or designated official for the respective tribe. The Native American Review Group shall be notified immediately and all activity on the property shall immediately cease if: (1) remains are found; (2) any property with religious and cultural significance will be disturbed; and (3) any property with religious and cultural significance is accidentally disturbed. This group shall convene and review any request made to the Department of Natural Resources for a land permit. The Department of Natural Resources may issue a land permit only after the Native American Review Group has reviewed the proposal and approved the request or provided revisions to the request.

(20 ILCS 3440/4) (from Ch. 127, par. 2664)

Sec. 4. Human burial sites; knowingly disturbing human skeletal remains; penalty; permit. It is unlawful for any person, either by oneself himself or through an agent, to knowingly disturb human skeletal remains, grave markers, and grave artifacts in unregistered graves protected by this Act unless such person obtains a permit issued by the Department of Natural Resources. Any person who violates this Section commits a Class 4 felony. When grave disturbances must occur a land permit must be obtained from the Department of Natural Resources. When a land permit request is received, the Department of Natural Resources shall immediately contact the Director of Tribal Relations at the Illinois State Museum who shall immediately engage the Native American Review Group who shall approve or deny the request.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/4.5)

Sec. 4.5. O'Hare Modernization.

The O'Hare Modernization Act shall be subject to this Act and all provisions of the Native American Graves Protection and Repatriation Act of 1990. Any future O'Hare developments must be reviewed and approved by the Native American Review Group. Nothing in this Act limits the authority of the City of Chicago to exercise its powers under the O'Hare Modernization Act or requires that City, or any person acting on behalf of that City, to obtain a permit under this Act when acquiring property or otherwise exercising its powers under the O'Hare Modernization Act.

(Source: P.A. 93-450, eff. 8-6-03.)

(20 ILCS 3440/5) (from Ch. 127, par. 2665)

Sec. 5. Human burial sites; appropriation for sale; penalty. It is unlawful for any person, either by himself or through an agent, to recklessly appropriate for profit, use for profit, sell, purchase, or transport for sale or profit any human remains, grave artifacts, or grave markers. A person who violates this Section commits a Class A misdemeanor for a first violation and a Class 4 felony for a second or subsequent violation knowingly disturb a grave marker protected by this Act unless such person obtains a permit issued by the Department of Natural Resources.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/6) (from Ch. 127, par. 2666)

Sec. 6. Human burial sites; unknowingly disturb; actions; permits. Due to the need for infrastructure repair, renovation and improvement, it is highly likely that an unregistered grave, human remains, or grave marker could be disturbed. In such cases, any and all work must immediately cease. Within 48 hours the Department of Natural Resources must be notified and the formal Section 106 consultation process with Native American nations, as provided in the National Historic Preservation Act of 1966, must take place before any work can resume. For work to proceed, a land permit must be issued by the Department of Natural Resources after appropriate tribal review and consultation has been completed. A person who violates this Section commits a Class A misdemeanor for a first violation and a Class 4 felony for a second or subsequent violation. It is unlawful for any person, either by himself or through an agent, to offer any human skeletal remains, grave artifacts or grave markers for sale or exchange with the knowledge that they have been collected or excavated in violation of this Act.

(Source: P.A. 86-151.)

(20 ILCS 3440/7) (from Ch. 127, par. 2667)

Sec. 7. Human burial sites-knowingly disturb private property, permitting, penalties. It is unlawful for any person, either by himself or through an agent, to knowingly allow the disturbance of human skeletal remains, unregistered graves, grave artifacts or grave markers on property controlled by that person unless such disturbance is authorized by a permit issued by the Historic Preservation Agency. A person who violates this Section commits a Class A misdemeanor for a first violation and a Class 4 felony for a second or subsequent violation. When grave disturbances must occur a land permit must be obtained from the Department of Natural Resources. When a land permit request is received, the Department of Natural Resources shall immediately contact the Director of Tribal Relations at the Illinois State Museum who shall immediately engage the Native American Review Group who shall approve or deny the request.

(Source: P.A. 86-151.)

(20 ILCS 3440/8) (from Ch. 127, par. 2668)

Sec. 8. Criminal prosecutions for violations of Act. The State's Attorney of the county in which a violation of Section 4, 5, 6, 7, or 8 Sections 4, 5, 6, or 7 of this Act is alleged to have occurred, or the Attorney General, may be requested by the Department Director of Natural Resources to initiate criminal prosecutions or to seek civil damages, injunctive relief and any other appropriate relief. The Department of Natural Resources shall co-operate with the State's Attorney or the Attorney General. Persons aware of any violations of this Act shall contact the Department of Natural Resources.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/9) (from Ch. 127, par. 2669)

Sec. 9. Reward for information leading to arrest and conviction of offenders. The Department of Natural Resources is authorized to offer a reward of up to $5,000 $2000 for information leading to the arrest and conviction of persons who violate Section 4, 5, 6, 7, or 8 Sections 4, 5, 6, and 7 of this Act.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/10) (from Ch. 127, par. 2670)

Sec. 10. Registry of offenders. The Department of Natural Resources shall create a registry of offenders who violate this Act and shall impose additional penalties on repeat offenders Any violation of Sections 4, 6 or 7 of this Act is a Class A misdemeanor and the violator shall be subject to imprisonment for not more than 1 year and a fine not in excess of $10,000; any subsequent violation is a Class 4 felony. Each disturbance of an unregistered grave constitutes a separate offense.

(Source: P.A. 86-151.)

(20 ILCS 3440/12) (from Ch. 127, par. 2672)

Sec. 12. Civil damages. Persons convicted of a violation of Section 4, or 5, 6, 7, or 8 of this Act shall also be liable for civil damages to be assessed by the Department of Natural Resources in consultation with Native American tribes Historic Preservation Agency. Civil damages may include:

(a) forfeiture of any and all equipment used in disturbing the protected unregistered graves or grave markers;

(b) any and all costs incurred in cleaning, restoring, analyzing, accessioning, traveling for tribal nation representatives, and curating the recovered materials;

(c) any and all costs associated with restoring the land to its original contour or the grave marker to its original condition in consultation with federally recognized tribes;

(d) any and all costs associated with recovery of data, and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the unregistered burials or grave markers;

(e) any and all costs for the State of Illinois and affected tribal nations associated with the reinterment of the human skeletal remains in consultation with federally recognized tribes;

(f) any and all costs associated with the determination and collection of the civil damages.

When civil damages are recovered through the Attorney General, the proceeds shall be deposited into the Tribal Repatriation Historic Sites Fund, which is created in the State treasury. The moneys in the Fund shall be used for tribal repatriation or interment; when civil damages are recovered through the State's Attorney, the proceeds shall be deposited into the county funds designated by the county board specifically and only used for tribal repatriation or reinterment.

(Source: P.A. 86-151.)

(20 ILCS 3440/13) (from Ch. 127, par. 2673)

Sec. 13. Permits for the disturbance or removal of human remains.

(a) The Director Department of Natural Resources shall develop regulations, in consultation with the Illinois State Museum and federally recognized Native American nations geographically and culturally affiliated with Illinois, whereby permits may be issued for the disturbance or removal, or both, of human skeletal remains and grave artifacts from unregistered graves or the disturbance or removal, or both, of grave markers.

(b) Each permit shall specify all terms and conditions under which the removal of human skeletal remains, grave artifacts, or grave markers shall be carried out. All costs accrued in the removal of the aforementioned materials shall be borne by the permit applicant. Upon completion of the project, the permit holder shall submit a report of the results to the Department of Natural Resources, the Director of the Illinois State Museum, and any affiliated federally recognized Native American nations geographically and culturally affiliated with Illinois.

(c) If such human remains are not Native American or their ethnic identity cannot be ascertained, as determined by the State Burial Law Coordinator, the human remains shall be dealt with in accordance with provisions established by the State Archaeologist and other appropriate authority. If such burials are Native American, as determined by the Illinois State Archaeologist, efforts shall be made by the Illinois State Archaeologist, in consultation with the Native American tribe having a probable historical and cultural heritage with the burial site, to ascertain their tribal identity. If their probable tribal identity can be determined and the remains have been removed from their original context, such remains shall be turned over to contemporary tribal leaders for disposition.

(d) If tribal identity cannot be determined, the Native American remains must be dealt with in accordance with provisions established by the State Burial Law Coordinator consistent with the requirements of the Native American Graves Protection and Repatriation Act of 1990 if they are from public land. If removed Native American remains are from private land they shall be dealt with in accordance with provisions established by the State Burial Law Coordinator. If it is deemed desirable by the Illinois State Archaeologist, removed remains shall be studied in a timely and respectful manner by a qualified professional archaeologist or a qualified physical anthropologist before being delivered to tribal leaders or before being reburied.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/14) (from Ch. 127, par. 2674)

Sec. 14. Human remains in unregistered graves. All human skeletal remains and grave artifacts in unregistered graves are the property of the Native American nations geographically and culturally affiliated with Illinois. The Department of Natural Resources and the Illinois State Museum shall have the right to maintain and care for, in compliance with the Native American Graves Protection and Repatriation Act of 1990, Native American property until appropriate and tribal consultation has been completed and tribes have made the final decision for repatriation or reinterment of the property. The Illinois State Museum shall maintain records, conduct tribal consultation, provide reports to tribal nations, and lead repatriation and reinterment efforts with tribal approval held in trust for the people of Illinois by the State and are under the jurisdiction of the Department of Natural Resources. All materials collected under this Act shall be maintained, with dignity and respect, for the people of the State under the care of the Illinois State Museum.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/15) (from Ch. 127, par. 2675)

Sec. 15. Rules. The Department of Natural Resources, in consultation with federally recognized Native American nations shall adopt promulgate such rules regulations as may be necessary to carry out the purposes of this Act.

(Source: P.A. 100-695, eff. 8-3-18.)

(20 ILCS 3440/17 new)

Sec. 17. Creation of cemetery. The Director of Natural Resources, in cooperation with the Illinois State Museum and in consultation with the federally recognized tribes with geographical and cultural affiliation with Illinois, may create a cemetery on existing State lands for the reburial of repatriated Native American remains and materials. The cemetery shall not be used by the public and shall be protected by the State of Illinois. The Director of Natural Resources shall cooperate with the Illinois State Archaeologist and the Illinois State Museum to coordinate reinterment in the cemetery.

(20 ILCS 3440/18 new)

Sec. 18. Role of the Native American Graves Protection and Repatriation Act officer and Director of Tribal Relations. In partnership with the Illinois State Museum, the Department of Natural Resources shall cooperate with the Director of Tribal Relations and the Native American Graves Protection and Repatriation Act officer to monitor sites and persons across this State that are receiving federal funds to ensure compliance with the requirements of the Native American Graves Protection and Repatriation Act of 1990. The Department of Natural Resources shall provide access to the offenders registry and the Native American Graves Protection and Repatriation Act officer shall maintain accuracy and tracking of penalties. The Director of Tribal Relations shall serve as the intermediary between the Department of Natural Resources, the Illinois State Museum, and tribal nations to ensure the directives of tribal nations are being followed and that tribal nations are informed of actions taken by the State of Illinois.

(20 ILCS 3440/2 rep.)

(20 ILCS 3440/11 rep.)

Section 15. The Human Skeletal Remains Protection Act is amended by repealing Sections 2 and 11.

Section 20. The State Finance Act is amended by adding Section 5.990 as follows:

(30 ILCS 105/5.990 new)

Sec. 5.990. The Tribal Repatriation Fund.".