Chapter 45-3 RULES FOR AMERICAN INDIAN HUMAN REMAINS AND BURIAL OBJECTS HELD BY MUSEUMS
| (1) |
"APA" means Georgia Administrative
Procedure Act (O.C.G.A. Title 50, Chapter 13). |
| (2) |
"Attorney General" means the Attorney
General of the State of Georgia. |
| (3) |
"Contested Case" means a proceeding in
which the legal rights, duties, or privileges of a party are required by law to
be determined by an agency after an opportunity for hearing, in accordance with
the APA. |
| (4) |
"Secretary of State"
means the Secretary of State of the State of Georgia. |
| (1) |
Museums were
required to complete an inventory of American Indian human remains or burial
objects in their possession by July 1, 1997. The deadline for submission of
inventories shall now be sixty (60) days after the Council's adoption of the
Rules for American Indian Human Remains and Burial Objects Held by Museums as
provided in this Chapter 45-1-3. Immediately upon completion, said inventory is
to be first-class mailed to the Georgia Council on American Indian Concerns,
c/o Department of Natural Resources, 2 Martin Luther King, Jr. Drive, S.E.,
Suite 1352 East, Atlanta, Georgia 30334-9000. |
| (1) |
For the purpose of identifying ownership of Native American human remains or
burial objects the Council suggests that priority be given in the order listed
| (a) |
To the known lineal descendants of a
particular Native American Indian Tribe, or |
| (b) |
In any case in which such lineal
descendants cannot be ascertained
| 1. |
To the
Indian tribe on whose current tribal land such objects or remains were
discovered, |
| 2. |
To the Indian tribe
which has the closest cultural affiliation with such remains or objects,
or |
| 3. |
If the cultural affiliation
cannot be reasonably ascertained and if the objects are not subject to Federal
Law, Public Law
101-601
| (i) |
To
the Indian tribe that is recognized as originally occupying the area in which
the objects were discovered, or |
| (ii) |
If it can be shown that a different
tribe has a stronger cultural relationship with the remains or objects then the
Native American Indian Tribe within the State of Georgia that has the strongest
demonstrated relationship will retain objects or remains. |
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| (1) |
All complaints
to be considered by the Council shall be filed in writing with the Council and
shall contain the following:
| (a) |
The name and
address of the complainant(s). |
| (b) |
The sworn verification and signature of the complainant. |
| (c) |
The name and address of the party or
parties against whom the complaint is made. |
| (d) |
A clear and concise statement of the
facts upon which the complaint is based. |
| (e) |
A statement of each specific section of
O.C.G.A. §§ 44-12-261 and/or 44-12-262 alleged
to have been violated. |
| (f) |
Any
further information, which might support the allegations in the complaint
including, but not limited to, the following:
| 1. |
The name and address of all other persons
who have firsthand knowledge of the facts alleged in the complaint; |
| 2. |
Any documentary evidence that supports the
facts alleged in the complaint. |
|
|
| (2) |
Upon receipt of a written complaint that
the Secretary of the Council determines does not conform to the requirements of
paragraph (1) of this Rule, the complaint shall be returned by mail, along with
a copy of this Rule and a letter advising the complainant of the defect in the
complaint and that the complaint will not be considered until it is resubmitted
with all the information required by paragraph (1). |
| (3) |
Upon receipt of a written complaint that
conforms to the requirements of paragraph (1) the Council shall send a copy of
the complaint to the party or parties against whom the complaint is made. The
Council will then allow the party or parties the opportunity to respond to the
complaint within sixty (60) days in writing. |
| (3) |
Upon receipt of the complaint, the
complainant will receive an acknowledgment from the Council. |
Any museum which fails to comply with the provisions of O.C.G.A
§§ 44-12-261 or
44-12-262 shall be subject to a
civil penalty to be imposed by the Council. The amount of such penalty shall be
based upon:
| (a) |
The archeological,
historical, or commercial value of the item involved; |
| (b) |
The damages suffered, both economic and
noneconomic, by an aggrieved party; and; |
| (c) |
The number of violations that have
occurred.
In no event shall the aggregate amount of such civil penalty
exceed $5,000 for violations stemming from a single
occurrence.
|
| (1) |
Whenever the
Council proposes to subject a person to the imposition of a civil penalty under
O.C.G.A § 44-12-264, the Council shall
notify such person in writing:
| (a) |
Setting
forth the date, facts, and nature of each act or omission with which the museum
is charged; |
| (b) |
Specifically
identifying the particular provision(s) of the Code section, rule, regulation,
order, license, or registration certificate involved in the violation;
and |
| (c) |
Advising of each penalty
which the Council proposes to impose and its amount. |
|
| (2) |
Such written notice shall be sent by
registered or certified mail or statutory overnight delivery by the Council to
the last known address of such person. The notice shall also advise such person
that, upon failure to pay the civil penalty finally determined, if any, the
penalty may be collected by civil action. |
The person so notified of the proposed penalty shall be granted
an opportunity to show the Council in writing, within thirty (30) days of
mailing of such notice, why such penalty should not be imposed. To be
considered timely, a written response must be received by the Council or mailed
by first-class mail, with proper postage attached, and properly addressed to
the Council, within thirty (30) days of the mailing of the notice of the
proposed civil penalty.
Should the Council determine that the imposition of a civil
penalty is warranted for a violation or violations of O.C.G.A. §§ 44-12-261 and/or 44-12-262, the
Council shall notify such person in writing. Any person upon whom the Council
imposes a civil penalty may file a petition for hearing appealing such penalty.
Any imposition of a civil penalty shall be stayed upon the filing of a petition
until ten (10) days after the administrative law judge has rendered a
decision.
| (1) |
Any person upon
whom the civil penalty is imposed may file a petition within thirty (30) days
of the mailing of the notice of the civil penalty determination for a hearing
before an administrative law judge assigned by the Office of State
Administrative Hearings. |
| (2) |
An
original and two copies of the petition for hearing shall be filed on 8
½ by 11 inch white paper with the Council. If the petition is timely
filed, the Council will forward the petition to the Attorney General, who will
forward it to the Office of State Administrative Hearings along with OSAH Form
1. Submissions shall be deemed filed on the date by which they are received by
first-class mail by the Council. All submissions shall meet the applicable
requirements of the OSAH Rules, Chapter 616-1-2. |
| (3) |
A petition for hearing shall contain
| (a) |
a copy of the notice for which the
hearing is sought, |
| (b) |
a statement
of the facts on which the civil penalty is challenged, |
| (c) |
a statement of the legal authority and
jurisdiction under which the hearing is requested, |
| (d) |
a statement of the relief
requested, |
| (e) |
petitioner's full
name and address, |
| (f) |
the name and
address of the petitioner's counsel, |
| (g) |
the name and address of all interested
persons who may testify. |
|
| (4) |
The hearing before the administrative
judge shall be conducted in accordance with Chapter 13 of Title 50, the
"Georgia Administrative Procedure Act." The decision of the administrative law
judge shall constitute the final decision of the Georgia Council on American
Indian Concerns and any party to the hearing, including the Council, shall have
the right of judicial review thereof in accordance with Chapter 13 of Title 50,
the "Georgia Administrative Procedures Act." |
