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Town Debates Gravesite Protection and Private Property Rights

Posted on 30 October 2009

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Over four months ago, the Southampton Town Board sat down with leading members of the Shinnecock Indian Nation and deliberated over creating a law to protect historic graves and funeral objects. Members of the local native American tribe expressed fears that the desecration of ancestral remains has gone unchecked on private properties. They pointed out that neither the state nor the town has a procedure on the books for how to handle the discovery of a grave site.

Last Friday, the board was once again visited by members of the Shinnecock Nation, but this time assistant town attorney Joe Burke brought with him a draft law entitled “Native American and Colonial Burial Site Protection.” Burke further noted that an “Unmarked Burial Site Protection Act” to regulate the discovery of burial grounds, human remains and funerary objects is making its way through the state senate. Burke contacted Senator Ken LaValle’s office and was told the act would likely be discussed when the senate goes into session in January. (New York State is one of four which doesn’t have grave site protection legislation.)

East Hampton attorney George Stankevich cautioned that the state senate has been mulling over similar measures for several years without yielding solid results.

“The reason we have come to you [the town board] is the inability to get this done,” argued Stankevich. He pointed out that when a mass burial site was discovered on Shelter Island in 2003, Shelter Island Town enacted an ineffectual policy and the graves were further desecrated.

“I am known as a private property advocate, but I welcome this type of legislation. It lays out a road map [for private property owners] and tells them how to do the right thing,” contended Stankevich. “We want to make this less punitive and more helpful.”

The draft law states that “any person, who in the course of ground disturbing activity, discovers a burial site, human remains or funerary object” must immediately stop their activity and contact the County Medical Examiner, the town police and the Southampton Town Burial Site Review Committee, which this law proposes to create.

Under disposing of the remains, the draft law says both the cultural group or descendants of the deceased will jointly decide what to do with the remains and send this recommendation in writing to the committee. The committee is then tasked with deciding how to handle the remains, which could include reburial on or off the site. The legislation further states that if “there is no practicable means of modifying the activity which led to the discovery of a burial site … the remains or objects shall be removed and re-interred in accordance with the direction of the appropriate culturally affiliated group or lineal descendant.”

Members of the Shinnecock Nation noted that their priority was to keep the remains or objects on site.

“If the landowner and the committee cannot agree, the remains should stay put,” remarked Stankevich.

Town attorney Dan Adams worried that the law could be a “defacto taking of property” by the town because having the remains on site hinders the development options of the property owner. Adams cautioned that the way the legislation is written right now might lead to lawsuits in the future. Stankevich, however, pointed out that he didn’t know of a case with a property owner refusing to keep the graves on site. He further noted that according to New York State public health law no one has the right to disturb a grave.

As written, town supervisor Linda Kabot contended there would be a financial impact to the town if a private property owner sued. In the case of an individual winning a lawsuit, the town would most likely have to purchase the land using Community Preservation Fund monies, added Kabot. The town recently purchased the former St. James Hotel site, where an ancient Shinnecock fishing village and a 1,000-year-old skull was discovered in 2006, with CPF funds.

During the meeting, Kabot pointed out that the legislation should safeguard the town from any lawsuit, which could be achieved through changing the language of the law.

“I think we need to spend more time fleshing this out,” argued Kabot. 

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