20 ILCS 3440/ Human Remains Protection Act.

(20 ILCS 3440/0.01) (from Ch. 127, par. 2660)

Sec. 0.01. Short title. This Act may be cited as the Human Remains Protection Act.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/1) (from Ch. 127, par. 2661)

Sec. 1. Definitions. For the purposes of this Act:

"Department" means the Department of Natural Resources.

"Disturb" or "disturbance" includes excavating, removing, exposing, probing, defacing, mutilating, destroying, molesting, or desecrating in any way human remains, unregistered graves, grave artifacts, and grave markers.

"Encounter" means to come upon human remains, grave artifacts, grave markers, or unregistered graves at a location where such viewing was not expected or anticipated.

"Grave artifacts" means any item of human manufacture or use that is associated with the human remains in an unregistered grave.

"Grave markers" means any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with an unregistered grave.

"Human remains" include the bones and decomposed fleshy parts of a deceased human body.

"Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, limited-liability company, corporation or a receiver, trustee, guardian or other representatives appointed by order of any court, the Federal and State governments, including State Universities created by statute or any city, town, county or other political subdivision of this State.

"Tribal consultation" means a form of communication centered in trust, respect and shared responsibility that upholds Tribal sovereignty. It is a free and open process where the exchange of information and opinions are shared among the participating parties.

"Undertaking" means any project, activity, or construction that can result in changes to, disturbance of, moving, or destruction of human remains, grave artifacts, grave markers or unregistered graves.

"Unregistered grave" means any grave or location where a human body has been buried or deposited; is over 100 years old; and is not in a cemetery registered with or licensed by the State Comptroller under the Cemetery Care Act or under the authority of the Illinois Department of Financial and Professional Regulation pursuant to the Cemetery Oversight Act, whichever is applicable.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/2) (from Ch. 127, par. 2662)

Sec. 2. Legislative finding and intentions. The General Assembly finds that existing laws do not provide equal or adequate protection for all human graves. There is a threat to the safety and sanctity of unregistered and unmarked graves. Numerous incidents in Illinois have resulted in the desecration of human remains and vandalism to graves and grave markers. Similar incidents have occurred in neighboring states and as a result those states have increased their criminal penalties for such conduct. Strong and meaningful relationships between the State of Illinois and tribal nations geographically and culturally affiliated to the land now known as the State of Illinois must be cultivated. There is an immediate need for legislation to protect the graves of Native Americans and any other peoples geographically and culturally affiliated to the land now known as the State of Illinois from such desecration. The General Assembly intends to assure with this Act that all human burials be accorded equal treatment and respect for human dignity.

The General Assembly finds that the intentional looting of, desecration of, or profiting from human remains and mortuary objects are deplorable actions that must be prohibited. When human remains and unregistered graves are unintentionally encountered, they must be treated with respect and in accordance with law. This Act is not intended to interfere with the normal enjoyment of private property owners, farmers, or those engaged in the development, mining or improvement of real property.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/3) (from Ch. 127, par. 2663)

Sec. 3. Notification to coroner and Department. Any person who encounters human remains subject to this Act shall promptly notify the coroner and shall notify the Department within 48 hours of the encounter. Any person who knowingly fails to report such an encounter as required by this section is guilty of a Class C misdemeanor, unless such person has reasonable cause to believe that the coroner and the Department had already been so notified. If the human remains appear to be from an unregistered grave, the coroner shall promptly notify the Department. Nothing in this Act shall be construed to apply to human remains subject to "An Act to revise the law in relation to coroners".

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/3.5)

Sec. 3.5. Encounter procedure. When an undertaking encounters human remains, unregistered graves, grave markers, or grave artifacts, all activities shall cease within a 100-foot radius of the encounter. The encountering party shall notify the coroner and the Department as required in Section 3. If the coroner determines that the human remains are not over 100 years old, no further action is required under this Act. If the coroner does determine that the human remains are over 100 years old, the Department shall review the undertaking and may issue a permit pursuant to Section 13. During its review, if it is determined by the Department that the human remains, unregistered grave, grave marker, or grave artifact are Native American in origin, the Department shall conduct tribal consultation with the tribal nations that identify as having or having had a historical, cultural, or geographic affiliation on the land where the undertaking will occur.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/4) (from Ch. 127, par. 2664)

Sec. 4. Disturbing human remains.

(a) It is unlawful for any person to knowingly or recklessly disturb or to knowingly or recklessly allow the disturbance of human remains, unregistered graves, grave markers, or grave artifacts that originated from any land that is now part of the State of Illinois and protected by this Act unless such disturbance is authorized by a permit issued by the Department. A violation of this Section is a Class 4 felony.

(b) This Section does not apply to:

(1) persons employed by or agents of a county medical examiner's office or coroner's office acting within the scope of their employment;

(2) the acts of a licensed funeral director or embalmer while performing acts authorized by the Funeral Directors and Embalmers Licensing Code;

(3) cemeteries and cemetery personnel while performing acts pursuant to a bona fide request from the involved cemetery consumer or his or her heirs, or pursuant to an interment or disinterment permit or a court order, or as authorized under Section 14.5 of the Cemetery Protection Act, or any other actions legally authorized for cemetery employees;

(4) the acts of emergency medical personnel or physicians performed in good faith and according to the usual and customary standards of medical practice in an attempt to resuscitate a life;

(5) physicians licensed to practice medicine in all of its branches or holding a visiting professor, physician, or resident permit under the Medical Practice Act of 1987, performing acts in accordance with usual and customary standards of medical practice, or a currently enrolled student in an accredited medical school in furtherance of his or her education at the accredited medical school;

(6) removing or carrying away human remains by the employees, independent contractors, or other persons designated by the federally designated organ procurement agency engaged in the organ and tissue procurement process; or

(7) Department employees in the course of their official duties pursuant to this Act.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/4.5)

Sec. 4.5. O'Hare Modernization. Nothing in this Act limits the authority of the City of Chicago to exercise its powers under the O'Hare Modernization Act or requires that City, or any person acting on behalf of that City, to obtain a permit under this Act when acquiring property or otherwise exercising its powers under the O'Hare Modernization Act.

(Source: P.A. 93-450, eff. 8-6-03.)

(20 ILCS 3440/4.75)

Sec. 4.75. South Suburban Airport. The Illinois Department of Transportation, and any person acting on its behalf under a public-private agreement entered into in accordance with the Public-Private Agreements for the South Suburban Airport Act, is exempt from the permit requirements of this Act, provided that the Illinois Department of Transportation, or any such person, takes reasonable steps to comply with the provisions of this Act so long as compliance does not interfere with the design, development, operation, or maintenance of the South Suburban Airport or the exercise of their powers under the Public-Private Agreements for the South Suburban Airport Act.

(Source: P.A. 98-109, eff. 7-25-13.)

(20 ILCS 3440/5)

Sec. 5. (Repealed).

(Source: P.A. 100-695, eff. 8-3-18. Repealed by P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/6) (from Ch. 127, par. 2666)

Sec. 6. Violations.

(a) It is unlawful for any person to knowingly or recklessly:

(1) charge admission or a fee to observe;

(2) sell;

(3) purchase; or

(4) transport for sale or to a location that will charge admission or a fee to observe any human remains, grave artifacts, or grave markers that are Native American in origin or that originated from any land that is now part of the State of Illinois.

A person who violates this Section commits a Class A misdemeanor for a first violation and a Class 4 felony for a second or subsequent violation.

(b) This Section does not apply to:

(1) the acts of a licensed funeral director or embalmer while performing acts authorized by the Funeral Directors and Embalmers Licensing Code; or

(2) cemeteries and cemetery personnel while performing acts pursuant to a bona fide request from the involved cemetery consumer or his or her heirs, or pursuant to an interment or disinterment permit or a court order, or as authorized under Section 14.5 of the Cemetery Protection Act, or any other actions legally authorized for cemetery employees.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/7)

Sec. 7. (Repealed).

(Source: P.A. 86-151. Repealed by P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/8) (from Ch. 127, par. 2668)

Sec. 8. Duties of the State's Attorney and Attorney General. The State's Attorney of the county in which a violation of this Act or administrative rules is alleged to have occurred, or the Attorney General, may be requested by the Department to initiate criminal prosecutions and seek restitution, civil damages, injunctive relief and any other appropriate relief. The Department shall co-operate with the State's Attorney or the Attorney General. Persons wishing to report any violations of this Act shall contact the Department.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/9) (from Ch. 127, par. 2669)

Sec. 9. Rewards for information leading to arrest of violators of the Act. The Department is authorized to offer a reward of up to $5,000 for information leading to the arrest and conviction of persons who violate this Act.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/10) (from Ch. 127, par. 2670)

Sec. 10. Penalties. Any violation of Sections 4, 6 or 7 of this Act, unless otherwise specified, is a Class A misdemeanor for a first violation and a Class 4 felony for a second or subsequent violation. Any violation of administrative rules adopted under this Act is a Class B misdemeanor. Each disturbance of human remains, unregistered graves, grave markers, or grave artifacts constitutes a separate offense.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/11)

Sec. 11. (Repealed).

(Source: P.A. 86-151. Repealed by P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/12) (from Ch. 127, par. 2672)

Sec. 12. Restitution. Persons convicted of a violation of Section 3, 3.5, 4, or 6 of this Act shall also be liable for restitution to be assessed by the circuit court. Restitution may include, but is not limited to:

(a) (blank);

(b) any and all costs incurred in cleaning, restoring, repairing, analyzing, accessioning and curating the recovered materials, including, but not limited to, fees for experts the Department needed to complete any restoration or identification required under this Act;

(c) any and all costs associated with restoring the land to its original contour or the grave marker to its original condition;

(d) any and all costs associated with recovery of data, and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the unregistered burials or grave markers;

(e) any and all costs associated with the reinterment of the human remains;

(f) any and all costs associated with the determination and collection of restitution; and

(g) for Native American remains and materials, any and all costs of traveling for tribal nation representatives for reinterment or repatriation activities and for non-Native American remains and materials, any and all costs of traveling for experts the Department needed to complete any restoration or identification required under this Act.

When restitution is ordered in a case prosecuted by the Attorney General, the restitution shall be deposited into the Repatriation and Reinterment Fund; when restitution is ordered in a case prosecuted by the State's Attorney, the proceeds shall be deposited into the county funds designated by the county board that may only be used for repatriation or reinterment.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/13) (from Ch. 127, par. 2673)

Sec. 13. Notification.

(a) If an undertaking will occur on property that the property owner has been notified in writing by the Department that the land is likely to contain human remains, unregistered graves, grave markers, or grave artifacts, a permit shall be obtained by the landowner from the Department.

(b) If human remains, unregistered graves, grave markers, or grave artifacts that were unknown and were encountered by any person, a permit shall be obtained from the Department before any work on the undertaking may continue.

(c) The Department of Natural Resources shall adopt administrative rules whereby permits shall be issued for the avoidance, disturbance, or removal of human remains, unregistered graves, grave markers, or grave artifacts, or a combination of those activities. The Department may adopt emergency rules in accordance with Sections 5-45 and 5-45.47 of the Illinois Administrative Procedure Act. The adoption of emergency rules authorized by Sections 5-45 and 5-45.47 of the Illinois Administrative Procedure Act and this paragraph is deemed to be necessary for the public interest, safety, and welfare.

(d) Each permit shall specify all terms and conditions under which the avoidance, removal, or disturbance of human remains, grave artifacts, grave markers, or unregistered graves shall be carried out. All costs accrued in the removal of the aforementioned materials shall be borne by the permit applicant. Within 60 days of the completion of the undertaking, the permit holder shall submit a report, on a form provided by the Department, of the results to the Department.

(Source: P.A. 103-446, eff. 8-4-23; 103-605, eff. 7-1-24.)

(20 ILCS 3440/14) (from Ch. 127, par. 2674)

Sec. 14. Native American human remains. All Native American human remains, unregistered graves, grave markers, and grave artifacts are the property of the Native American nations geographically and culturally affiliated with Illinois. The Department shall maintain and care for Native American property until tribal consultation has been completed and the tribes have made the final decision for repatriation or other arrangements have been established. The Department shall:

(1) maintain records;

(2) conduct tribal consultation;

(3) provide reports to tribal nations; and

(4) facilitate repatriation and reinterment efforts.

Such repatriation and reinterment efforts shall be with tribal approval.

All non-Native American human remains, grave markers, and grave artifacts in unregistered graves are held in trust for the people of Illinois by the State and are under the jurisdiction of the Department until and unless they are repatriated to descendants or other arrangements have been established. Unless and until they are repatriated, all materials collected under this Act shall be maintained, with dignity and respect, for the people of the State under the care of the Department.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/15) (from Ch. 127, par. 2675)

Sec. 15. Rules. The Department of Natural Resources shall adopt such administrative rules as may be necessary to carry out the purposes of this Act in accordance with the Illinois Administrative Procedure Act.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/16) (from Ch. 127, par. 2676)

Sec. 16. Exemptions. Activities reviewed by the Department pursuant to Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) and activities permitted pursuant to the Federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87), or the rules and regulations promulgated thereunder or any law, rule or regulation adopted by the State of Illinois thereunder shall be exempt from these permitting requirements.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/16.1)

Sec. 16.1. Burial sites on Department owned lands. The Department may create burial sites on Department owned lands for the reburial of repatriated Native American human remains, unregistered graves, grave markers, or grave artifacts after tribal consultation with the federally recognized tribes with geographical and cultural affiliation with Illinois. The burial sites shall not be used by the public and shall be protected by the State of Illinois.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/16.2)

Sec. 16.2. Repatriation and Reinterment Fund. The Repatriation and Reinterment Fund is created in the State treasury. All restitution collected from the prosecution of any violation of this Act shall be deposited in the fund and each deposit shall only be used to cover the restitution that was so ordered in an individual case pursuant to Section 12. The General Assembly may allocate appropriations to this fund to cover the cost of, including but not limited to, reinterment, repatriation, repair, or restoration of human remains, unregistered graves, grave markers, or grave artifacts that are in the custody of the Department.

(Source: P.A. 103-446, eff. 8-4-23.)

(20 ILCS 3440/16.3)

Sec. 16.3. Forfeiture.

(a) Every device, equipment, tool, vehicle or conveyance, when used or operated illegally, or attempted to be used or operated illegally by any person in taking, transporting, holding, disturbing, exploring, excavating, collecting or conveying any human remains, grave artifacts, or grave markers, contrary to the provisions of this Act, including administrative rules, is a public nuisance and subject to seizure and confiscation by any authorized employee of the Department; upon the seizure of such item the Department shall take and hold the same until disposed of as hereinafter provided.

(b) Upon the seizure of any property as herein provided, the authorized employee of the Department making such seizure shall forthwith cause a complaint to be filed before the circuit court and a summons to be issued requiring the person who illegally used or operated or attempted to use or operate such property and the owner and person in possession of such property to appear in court and show cause why the property seized should not be forfeited to the State. Upon the return of the summons duly served or other notice as herein provided, the court shall proceed to determine the question of the illegality of the use of the seized property and upon judgment being entered to the effect that such property was illegally used, an order may be entered providing for the forfeiture of such seized property to the Department and shall thereupon become the property of the Department; but the owner of such property may have a jury determine the illegality of its use, and shall have the right of an appeal, as in other cases. Such confiscation or forfeiture shall not preclude or mitigate against prosecution and assessment of penalties otherwise provided in this Act.

(c) Upon seizure of any property under circumstances supporting a reasonable belief that such property was abandoned, lost or stolen or otherwise illegally possessed or used contrary to the provisions of this Act, except property seized during a search or arrest, and ultimately returned, destroyed, or otherwise disposed of pursuant to order of a court in accordance with this Act, the Department shall make reasonable inquiry and efforts to identify and notify the owner or other person entitled to possession thereof, and shall return the property after such person provides reasonable and satisfactory proof of his ownership or right to possession and reimburses the Department for all reasonable expenses of such custody. If the identity or location of the owner or other person entitled to possession of the property has not been ascertained within 6 months after the Department obtains such possession, the Department shall effectuate the sale of the property for cash to the highest bidder at a public auction. The owner or other person entitled to possession of such property may claim and recover possession of the property at any time before its sale at public auction, upon providing reasonable and satisfactory proof of ownership or right of possession and reimbursing the Department for all reasonable expenses of custody thereof.

(d) Any property forfeited to the State by court order pursuant to this Section may be disposed of by public auction, except that any property which is the subject of such a court order shall not be disposed of pending appeal of the order. The proceeds of the sales at auction shall be deposited in the Repatriation and Reinterment Fund.

(e) The Department shall pay all costs of notices required by this Section.

(f) Property seized or forfeited under this Section is subject to reporting under the Seizure and Forfeiture Reporting Act.

(g) This Section does not apply to human remains, grave artifacts, or grave markers that were recovered by the Department or other law enforcement agency during an investigation of a violation of this Act.

(Source: P.A. 103-446, eff. 8-4-23.)