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Chapter 45-3 RULES FOR AMERICAN INDIAN HUMAN REMAINS AND BURIAL OBJECTS HELD BY MUSEUMS

Rule 45-3-.01 Definitions

(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.

Rule 45-3-.02 Museum Inventories

(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.

Rule 45-3-.03 Priority of Ownership for Native American Cultural Items

(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.

Rule 45-3-.04 Procedure for Complaints Alleging Violations of O.C.G.A. Secs. 44-12-261 and/or 44-12-262

(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.

Rule 45-3-.05 Penalties for Violation of Code Sections 44-12-261 and 44-12-262

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.

Rule 45-3-.06 Notice of Proposed Penalty

(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.

Rule 45-3-.07 Opportunity to Respond to Proposed Civil Penalty in Writing

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.

Rule 45-3-.08 Notice of Civil Penalty Determination

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.

Rule 45-3-.09 Filing for Petitions for Hearing on Civil Penalty Determinations; Time for Filing Petitions; Content

(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."