46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO INDIAN AFFAIRS; PROVIDING FOR THE REPATRIATION OF REMAINS AND FUNERARY OBJECTS; ENACTING THE REPATRIATION ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 6 of this act may be cited as the "Repatriation Act".

Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Repatriation Act:

A. "agency" means an agency of the state, a subdivision of the state, an educational institution of the state or any organization that receives state funding through a contract with the state, a local government or a state educational institution and includes all state, local government and state educational institution museums;

B. "cultural affinity" means a relationship of shared group identity that can be reasonably traced historically or prehistorically between a present-day tribe and an identifiable earlier group or a link that can be established through common use of a geographic site;

C. "executive director" means the executive director of the New Mexico office of Indian affairs;

D. "funerary object" means an object that, as part of a death rite or ceremony of a culture, is reasonably believed to have been placed with remains at a specific burial site either at the time of death, interment or later and can be identified to be related to specific remains or a specific site;

E. "kinship relationship" means a relationship that can be verified or inferred by strong evidence that indicates a direct line of descent from the remains to a current tribe or tribal member;

F. "object" means a sacred object, a funerary object or an object of tribal patrimony;

G. "object of tribal patrimony" means an inalienable item of historical, traditional, religious or cultural significance to a tribe, that may be a sacred object or a funerary object;

H. "remains" means human remains, including all or part of a human being, including objects attached to or placed on or with the individual upon death or interment of the human remains and all funerary objects associated with the human remains;

I. "sacred object" means an object used in a traditional, religious or culturally significant manner by a tribe or an individual of a tribe; a "sacred object" may also be a funerary object;

J. "tribal" means of or pertaining to a tribe; and

K. "tribe" means an Indian nation, tribe or pueblo located wholly or partially in New Mexico.

Section 3. [NEW MATERIAL] AGENCY INVENTORY OF REMAINS, SACRED OBJECTS, FUNERARY OBJECTS AND OBJECTS OF TRIBAL PATRIMONY.--

A. An agency that has possession or control over remains, sacred objects, funerary objects or objects of tribal patrimony shall within six months following the effective date of the Repatriation Act complete an inventory of all remains or objects under its control. The inventory shall include:

(1) identification of the circumstances surrounding the acquisition of the remains or objects, including geographical information available pertaining to the original location of the remains or objects;

(2) the cultural affinity of all remains or objects that are clearly identifiable; and

(3) a description of all remains and objects that are not clearly identifiable with a tribe or have no identifiable cultural affinity.

B. Promptly after completion of the inventory, the agency shall provide copies of the inventory to:

(1) the New Mexico commission on Indian affairs; and

(2) the state historic preservation officer.

C. Within the month following delivery of a copy of the inventories from all agencies, the New Mexico office of Indian affairs shall publish the complete inventory from all the agencies, identifying the remains and objects, the agency that has control over the remains and objects and the description of the location where the remains or objects were first discovered. A copy of the inventory shall be forwarded to each of the tribal governments with land in New Mexico and any other tribal government that requests a copy of the inventory.

D. The inventory shall be provided by the New Mexico commission on Indian affairs to any person who requests a copy of the inventory.

E. Following the completion of the initial inventory, each agency shall, whenever the agency receives new remains or objects through a loan or donation, update its inventory within three months of the loan or donation. Upon completion of the updated inventory, the agency shall provide a copy of the updated portion of the inventory to the executive director and to the state historic preservation officer.

F. The executive director shall provide inventory updates to its mailing list of recipients of copies of the original compiled inventory.

G. A tribe that determines that an item on the inventory may bear a kinship relationship or a cultural affinity to that tribe may contact the agency in control of the item and discuss with the agency the appropriate action that shall be taken to repatriate the item. Remains and objects shall be returned to a tribe if the tribe requests return of the remains or objects. The executive director and the state historic preservation officer shall mediate any disputes that arise between an agency and a tribe. A dispute that cannot be resolved by mediation shall be submitted to the repatriation commission for a final and binding resolution.

Section 4. [NEW MATERIAL] NOTIFICATION OF TRIBES--GEOGRAPHIC AND CULTURAL AFFINITY.--The New Mexico office of Indian affairs shall maintain a directory for purposes of repatriation of remains or objects, funerary objects and objects of tribal patrimony for use by the executive director and the repatriation commission that includes voluntary identification by a tribe located in New Mexico or the surrounding states of geographic or otherwise identifiable areas within New Mexico where remains and objects with cultural affinity to the tribe may be located. If remains or objects are found in those identified areas, the tribe shall be notified unless the remains or objects found have an identifiable kinship relationship or cultural affinity for another specific tribe.

Section 5. [NEW MATERIAL] DISCOVERY OF REMAINS OR OBJECTS--REPORT--DISPOSITION.--

A. A supervisory member of a survey, excavation, construction or other similar activity on lands controlled by an agency shall report promptly to the executive director and the state historic preservation officer the existence or evidence of remains or objects discovered in the course of the activities and determined to have been interred or placed at the site more than fifty years prior to the discovery. The supervisory member of the activity shall take all steps necessary to secure and maintain the preservation of the site and the remains or objects until appropriate state authorities take control of the remains or objects.

B. When remains or objects are discovered, the executive director and the state historic preservation officer shall together determine whether an obvious direct kinship relationship or cultural affinity with a tribe exists or whether the remains or objects should be submitted to review by the repatriation commission. If a direct kinship relationship or other cultural affinity is determined to exist, the tribe to which the remains or objects have a cultural affinity shall be notified and the tribe may take possession of the remains or objects or the tribe may determine an alternative means of caring for the remains or objects.

C. If a direct kinship relationship or a cultural affinity to the remains or objects cannot be readily deduced, the executive director shall convene the repatriation commission to view the site and the remains or objects and determine the tribe having the greatest potential for cultural affinity to the remains or objects. If the repatriation commission determines that a federally recognized tribal government with no current presence in the state has a strong cultural affinity to the remains or objects, contact shall be made by the executive director with that tribal government to determine if that tribal government desires to take possession of the remains or objects.

D. If no tribe claims a tribal affiliation to the remains or objects, or if a tribe chooses to relinquish control over the remains or objects to an agency, the remains or the objects shall be maintained with the appropriate dignity and respect and with consideration for the appropriate cultural or religious traditions applicable to the remains or objects by the agency exerting control over the remains or objects. The remains and objects shall be added to its inventory by the agency, and the addition to the inventory shall be forwarded to the executive director and the state historic preservation officer.

E. The expense of curation or reburial pursuant to this section that results from a survey, excavation, construction or other similar activity on land under the control of an agency shall be charged to the activity.

Section 6. [NEW MATERIAL] REPATRIATION COMMISSION CREATED--MEMBERS--DUTIES.--

A. The "repatriation commission" is created. The New Mexico office of Indian affairs shall provide administrative support for the repatriation commission.

B. There shall be nine members of the repatriation commission who shall be:

(1) appointed by the governor for terms of two years;

(2) chosen from a list submitted for that year of appointments to the governor by the chief executive officers of the tribes in New Mexico that shall include the names of elders or traditional, religious or cultural leaders or historic preservation officers of tribes located wholly or partially in New Mexico; and

(3) selected so that:

(a) the broadest representation possible of the tribes in the state is on the commission;

(b) a broad range of expertise on sacred objects, funerary objects, objects of patrimony and funeral and burial observances of the tribes shall be represented;

(c) each language group spoken by the tribes in New Mexico is represented on the board, including one representative each for the Pueblo of Jemez, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the Navajo Nation and the Pueblo of Zuni;

(d) all geographic areas of New Mexico in which tribes are located are represented; and

(e) a tribe shall have no more than one member on the commission at any time.

C. A member may be appointed at the discretion of the governor to succeed himself for unlimited terms if his name is included on the list of potential candidates to fill the vacant positions.

D. The repatriation commission may convene an executive session at a meeting of the commission to discuss matters of sacred or traditional significance that the commission determines to be too sensitive to discuss in a public meeting. Decisions resulting from the executive sessions shall be made in open meetings subsequent to the executive session.

E. The members of the repatriation commission shall receive per diem and mileage pursuant to the Per Diem and Mileage Act for official meetings of the repatriation commission. Additional perquisites or allowances shall not accrue to members of the repatriation commission.

Section 7. Section 10-15-1 NMSA 1978 (being Laws 1974, Chapter 91, Section 1, as amended) is amended to read:

"10-15-1. FORMATION OF PUBLIC POLICY--PROCEDURES FOR OPEN MEETINGS--EXCEPTIONS AND PROCEDURES FOR CLOSED MEETINGS.--

A. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

B. All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policymaking body of any state agency, any agency or authority of any county, municipality, district or any political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or for the purpose of taking any action within the authority of or the delegated authority of any board, commission or other policymaking body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act. No public meeting once convened that is otherwise required to be open pursuant to the Open Meetings Act shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.

C. If otherwise allowed by law or rule of the public body, a member of a public body may participate in a meeting of the public body by means of a conference telephone or other similar communications equipment when it is otherwise difficult or impossible for the member to attend the meeting in person, provided that each member participating by conference telephone can be identified when speaking, all participants are able to hear each other at the same time and members of the public attending the meeting are able to hear any member of the public body who speaks during the meeting.

D. Any meetings at which the discussion or adoption of any proposed resolution, rule, regulation or formal action occurs and at which a majority or quorum of the body is in attendance, and any closed meetings, shall be held only after reasonable notice to the public. The affected body shall determine at least annually in a public meeting what notice for a public meeting is reasonable when applied to that body. That notice shall include broadcast stations licensed by the federal communications commission and newspapers of general circulation that have provided a written request for such notice.

E. A public body may recess and reconvene a meeting to a day subsequent to that stated in the meeting notice if, prior to recessing, the public body specifies the date, time and place for continuation of the meeting and, immediately following the recessed meeting, posts notice of the date, time and place for the reconvened meeting on or near the door of the place where the original meeting was held and in at least one other location appropriate to provide public notice of the continuation of the meeting. Only matters appearing on the agenda of the original meeting may be discussed at the reconvened meeting.

F. Meeting notices shall include an agenda containing a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda. Except in the case of an emergency, the agenda shall be available to the public at least twenty-four hours prior to the meeting. Except for emergency matters, a public body shall take action only on items appearing on the agenda. For purposes of this subsection, an "emergency" refers to unforeseen circumstances that, if not addressed immediately by the public body, will likely result in injury or damage to persons or property or substantial financial loss to the public body.

G. The board, commission or other policymaking body shall keep written minutes of all its meetings. The minutes shall include at a minimum the date, time and place of the meeting, the names of members in attendance and those absent, the substance of the proposals considered and a record of any decisions and votes taken that show how each member voted. All minutes are open to public inspection. Draft minutes shall be prepared within ten working days after the meeting and shall be approved, amended or disapproved at the next meeting where a quorum is present. Minutes shall not become official until approved by the policymaking body.

H. The provisions of Subsections A, B and G of this section do not apply to:

(1) meetings pertaining to issuance, suspension, renewal or revocation of a license, except that a hearing at which evidence is offered or rebutted shall be open. All final actions on the issuance, suspension, renewal or revocation of a license shall be taken at an open meeting;

(2) limited personnel matters; provided that for purposes of the Open Meetings Act, "limited personnel matters" means the discussion of hiring, promotion, demotion, dismissal, assignment or resignation of or the investigation or consideration of complaints or charges against any individual public employee; provided further that this subsection is not to be construed as to exempt final actions on personnel from being taken at open public meetings, nor does it preclude an aggrieved public employee from demanding a public hearing. Judicial candidates interviewed by any commission shall have the right to demand an open interview;

(3) deliberations by a public body in connection with an administrative adjudicatory proceeding. For purposes of this paragraph, an "administrative adjudicatory proceeding" means a proceeding brought by or against a person before a public body in which individual legal rights, duties or privileges are required by law to be determined by the public body after an opportunity for a trial-type hearing. Except as otherwise provided in this section, the actual administrative adjudicatory proceeding at which evidence is offered or rebutted and any final action taken as a result of the proceeding shall occur in an open meeting;

(4) the discussion of personally identifiable information about any individual student, unless the student, his parent or guardian requests otherwise;

(5) meetings for the discussion of bargaining strategy preliminary to collective bargaining negotiations between the policymaking body and a bargaining unit representing the employees of that policymaking body and collective bargaining sessions at which the policymaking body and the representatives of the collective bargaining unit are present;

(6) that portion of meetings at which a decision concerning purchases in an amount exceeding two thousand five hundred dollars ($2,500) that can be made only from one source and that portion of meetings at which the contents of competitive sealed proposals solicited pursuant to the Procurement Code are discussed during the contract negotiation process. The actual approval of purchase of the item or final action regarding the selection of a contractor shall be made in an open meeting;

(7) meetings subject to the attorney-client privilege pertaining to threatened or pending litigation in which the public body is or may become a participant;

(8) meetings for the discussion of the purchase, acquisition or disposal of real property or water rights by the public body;

(9) those portions of meetings of committees or boards of public hospitals where strategic and long-range business plans or trade secrets are discussed; [and]

(10) that portion of a meeting of the gaming control board dealing with information made confidential pursuant to the provisions of the Gaming Control Act; and

(11) meetings of the repatriation commission for the discussion of identification of human remains, sacred objects, funerary objects or objects of tribal patrimony pursuant to the Repatriation Act.

I. If any meeting is closed pursuant to the exclusions contained in Subsection H of this section, the closure:

(1) if made in an open meeting, shall be approved by a majority vote of a quorum of the policymaking body; the authority for the closure and the subject to be discussed shall be stated with reasonable specificity in the motion calling for the vote on a closed meeting; the vote shall be taken in an open meeting; and the vote of each individual member shall be recorded in the minutes. Only those subjects announced or voted upon prior to closure by the policymaking body may be discussed in a closed meeting; and

(2) if called for when the policymaking body is not in an open meeting, shall not be held until public notice, appropriate under the circumstances, stating the specific provision of the law authorizing the closed meeting and stating with reasonable specificity the subject to be discussed is given to the members and to the general public.

J. Following completion of any closed meeting, the minutes of the open meeting that was closed or the minutes of the next open meeting if the closed meeting was separately scheduled shall state that the matters discussed in the closed meeting were limited only to those specified in the motion for closure or in the notice of the separate closed meeting. This statement shall be approved by the public body under Subsection G of this section as part of the minutes."

Section 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.