§ 5401 Purpose.
The purpose of this subchapter is:
(1) To help provide adequate protection for unmarked human burials and human skeletal remains found anywhere within the State, including subaqueous lands, but excluding those found anywhere on federal land;
(2) To provide adequate protection for unmarked human burials and human skeletal remains not within the jurisdiction of the Medical Examiner that are encountered during archaeological excavation, construction or other ground disturbing activities;
(3) To provide for adequate skeletal analysis of remains removed or excavated from unmarked human burials;
(4) To provide for the dignified and respectful reinterment or other disposition of Native American skeletal remains.
§ 5402 Definitions.
As used in this subchapter:
(1) “Committee” shall mean a body consisting of the Chief of the Nanticoke Indian Tribe, 2 members appointed by the Chief, the Director of the Division of Historical and Cultural Affairs of the Department of State and 2 members appointed by the Director and a seventh member from the private sector appointed by the Governor. The Committee members shall be residents of the State and shall serve 1-year, renewable terms.
(2) “Director” shall mean Director of the Division of Historical and Cultural Affairs, Department of State.
(3) “Human skeletal remains” or “remains” shall mean any part of the body of a deceased human being in any stage of decomposition.
(4) “Medical Examiner” shall be as defined in Chapter 47 of Title 29.
(5) “Professional archaeologist” shall mean a person having:
a. A graduate degree in archaeology, anthropology, history or another related field with a specialization in archaeology;
b. A minimum of 1 year’s experience in conducting basic archaeological field research, including the excavation and removal of human skeletal remains; and
c. Designed and executed an archaeological study and presented written results and interpretations of such study.
(6) “Skeletal analyst” shall mean any person having:
a. A graduate degree in a field involving the study of the human skeleton such as skeletal biology, forensic osteology or other relevant aspects of physical anthropology or medicine;
b. A minimum of 1 year’s experience in conducting laboratory reconstruction and analysis of skeletal remains, including the differentiation of the physical characteristics denoting cultural or biological affinity; and
c. Designed and executed a skeletal analysis and presented the written results and interpretations of such analysis.
(7) “Unmarked human burial” shall mean any interment of human skeletal remains for which there exists no grave marker or any other historical documentation providing information as to the identity of the deceased.
§ 5403 Discovery of remains and notification of authorities.
(a) Any person knowing or having reasonable grounds to believe that unmarked human burials or human skeletal remains are being encountered shall notify immediately the Medical Examiner or the Director.
(b) When unmarked burials or human skeletal remains are encountered as a result of construction or agricultural activities, said activity shall cease immediately upon discovery and the Medical Examiner or the Director notified of the discovery.
(c) Human burials or human skeletal remains which are encountered by a professional archaeologist as a result of survey or excavations must be reported to the Director. Excavation and other activities may resume after approval is provided by the Director. The treatment, analysis and disposition of the remains shall conform to the provisions of this subchapter.
(d) The director shall notify the Chief Medical Examiner, Department of Health and Social Services, of any reported human skeletal remains discovered by a professional archaeologist.
§ 5404 Jurisdiction over remains.
(a) Subsequent to notification of the discovery of an unmarked human burial or human skeletal remains, the Medical Examiner shall certify in writing to the Director, as soon as possible, whether the remains come under the Medical Examiner’s jurisdiction.
(b) If the Medical Examiner determines that the remains come under the Medical Examiner’s jurisdiction, the Medical Examiner will immediately proceed with an investigation pursuant to Chapter 47 of Title 29.
(c) All those remains determined to be not within the jurisdiction of the Medical Examiner shall be within the jurisdiction of the Director.
§ 5405 Archaeological investigation of human skeletal remains.
All excavations not under the jurisdiction of the Medical Examiner shall be either conducted by, or under the supervision of, a professional archaeologist and shall be subject to permission from the landowner. All permissible excavations shall be conducted in accordance with the regulations promulgated for this subchapter.
§ 5406 Consultation, analysis and disposition.
(a) The Committee shall be notified of all skeletal remains determined to be Native American within 5 days of discovery. Within 60 days of notification, the Director shall provide the Committee with a written plan for the treatment and ultimate disposition of the Native American skeletal remains.
(b) The Director shall publish notice of all excavations of human skeletal remains other than Native American, at least once per week for 2 successive weeks in a newspaper of general circulation in the county where the burials or skeletal remains were situated, in an effort to determine the identity or next-of-kin or both of the deceased. Treatment and ultimate disposition of the skeletal remains shall be subject to the written permission of the next-of-kin who notify the Director within 30 days of the last published notice. The Director shall provide next-of-kin with a written plan for treatment and ultimate disposition of human skeletal remains.
(c) All skeletal analysis conducted pursuant to this subchapter shall be undertaken only by a skeletal analyst as defined in § 5402(6) of this title.
(d) Any previously excavated skeletal remains of Native Americans of the State which are on display or remain uncovered as of June 5, 1987, shall be reinterred within 1 year. Treatment and disposition of all Native American remains discovered after enactment shall be determined by the Committee or, if direct descent can be determined, by the next-of-kin. In any event, Native American skeletal remains discovered after enactment shall be reinterred within 90 days unless an extension is granted by the Committee. Ultimate disposition of all non-Native American remains shall be determined by the next-of-kin, if known. If next-of-kin are unknown, disposition shall be determined by the Director. All costs associated with reinterment of human skeletal remains must be borne by the next-of-kin, if known.
(e) Any state agency which is responsible, either directly or indirectly, for the unearthing of human remains deemed to be the responsibility of the Division of Historical and Cultural Affairs shall be responsible for the cost of reinterment of those remains.
§ 5407 Prohibited acts.
No person, unless acting pursuant to Chapter 47 of Title 29, shall:
(1) Knowingly acquire any human skeletal remains removed from unmarked burials in Delaware, except in accordance with this subchapter.
(2) Knowingly sell any human skeletal remains acquired from unmarked burials in Delaware.
(3) Knowingly exhibit human skeletal remains.
§ 5408 Exceptions.
(a) Human skeletal remains acquired from commercial biological supply houses or through medical means are not subject to this subchapter.
(b) Human skeletal remains determined to be within the jurisdiction of the Medical Examiner are not subject to the prohibitions contained in this subchapter.
(c) Human skeletal remains acquired through archaeological excavations under the supervision of a professional archaeologist are not subject to the prohibitions as provided in § 5407(1) of this title.
§ 5409 Criminal penalties.
Any person who violates § 5407 of this title shall upon conviction be sentenced to pay a fine of not less than $1,000 nor more than $10,000 or be imprisoned not more than 2 years or both. The Superior Court shall have jurisdiction of offenses under this chapter.
§ 5410 Rules, regulations, standards, and guidelines.
The Division of Historical and Cultural Affairs may, with the approval of the Department of State, formulate and adopt such rules, regulations, standards and guidelines as it considers necessary for the effective execution of its purposes under this chapter.