Legal Memorandum: Landowner's Duties and Indian Burial Grounds

Issue: What is the governing law nationally regarding a landowner’s rights and duties when Indian burial grounds are discovered on his or her property and whether states who have statutes similar to Minnesota’s  307.08 construe them just as strictly?

Area of Law: Native Populations & Tribal Law, Real Estate Law
Keywords: Landowner's rights and duties; Human burial ground
Jurisdiction:   Alaska, California, Minnesota, New York, Washington, Wisconsin
Cited Cases: 942 P.2d 1034; 991 P.2d 769; 236 F. Supp. 2d 1183; 944 P.2d 1144
Cited Statutes: Minnesota Statutes § 307.08
Date: 00/01/2008

Generally there is very little law nationally regarding a landowner’s rights and duties when Indian burial grounds are discovered on his or her property.  As a general matter, states that have statutes regarding Indian burial grounds similar to Minnesota Statutes § 307.08 appear to construe them strictly.  In Lummi Nation v. Golder Associates, Inc., 236 F. Supp. 2d 1183 (W.D. Wash. 2002), a Native American nation plaintiff won a breach of contract action against a private archaeology firm, as a third-party beneficiary of the firm’s contract with a city for handling and removal of Indian remains; the court also found that the criminal provision of Washington’s statute (apparently quite similar to § 307.08) applied to the archaeologists.  In State v. Lightle, 944 P.2d 1144 (Wash. Ct. App. 1997), a state appellate court held that Washington’s criminal statute prohibiting removal of archaeological objects from Indian burial sites was not unconstitutionally vague.  And in Chenega v. Exxon Corp., 991 P.2d 769 (Alaska 1999), the state high court affirmed a jury verdict of nearly $6,000,000 in favor of several Alaska Native corporations against Exxon Corporation in connection with the Exxon Valdez oil spill, in compensation for spill-related damage to lands in which the corporations had cultural rights. 

In an interesting Wisconsin case, Mitton v. Wisconsin Department of Transportation, 507 N.W.2d 126 (Wis. Ct. App. 1993), the Wisconsin Court of Appeals reversed a summary judgment entered on behalf of the state department of transportation in […]

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