Virginia Law

As used in this chapter, unless the context requires a different meaning:

"Battlefield preservation organization" means a private nonprofit organization whose primary purpose is the preservation of one or more historical battlefields, including a battlefield property as defined in § 10.1-2200.

"Field investigation" means the study of the traces of human culture at any site by means of surveying, sampling, excavating, or removing surface or subsurface material, or going on a site with that intent.

"Field supervisor" means a person who is physically present at least 70 percent of the time during a field investigation, exploration, or recovery operation involving the removal, destruction, or disturbance of any object of antiquity and who directly oversees such field investigation, exploration, or recovery operation.

"Object of antiquity" means any relic, artifact, remain, including human skeletal remains, specimen, or other archaeological article that may be found on, in, or below the surface of the earth that has historic, scientific, archaeologic, or educational value.

"Person" means any natural individual, partnership, association, corporation, or other legal entity.

"Site" means a geographical area on dry land that contains any evidence of human activity that is or may be the source of important historic, scientific, archaeologic, or educational data or objects.

"State archaeological site" means an area designated by the Department in which it is reasonable to expect to find objects of antiquity.

"State archaeological zone" means an interrelated grouping of state archaeological sites.

"State archaeologist" means the individual designated pursuant to § 10.1-2301.

"State-controlled land" means any land owned by the Commonwealth or under the primary administrative jurisdiction of any state agency. "State agency" shall not mean any locality or any board or authority organized under state law to perform local or regional functions. "State-controlled land" includes state parks, state wildlife areas, state recreation areas, highway rights-of-way, and state-owned easements.

1977, c. 424, § 10-150.3; 1984, c. 750; 1988, c. 891, § 10.1-900; 1989, c. 656; 2005, c. 457; 2020, c. 1106; 2021, Sp. Sess. I, c. 59.

The Director shall:

1. Coordinate all archaeological research on state-controlled land and in state archaeological sites and zones;

2. Coordinate a survey of significant archaeological sites located on state-controlled land, and upon request, survey and officially recognize significant archaeological sites on privately owned property;

3. Identify, evaluate, preserve and protect sites and objects of antiquity which have historic, scientific, archaeologic or educational value and are located on state-controlled land or on state archaeological sites or zones;

4. Protect archaeological sites and objects located on state-controlled land or on state archaeological sites or zones from neglect, desecration, damage and destruction;

5. Ensure that archaeological sites and objects located on state-controlled land or on state archaeological sites or zones are identified, evaluated and properly explored so that adequate records may be made;

6. Encourage private owners of designated state archaeological sites to cooperate with the Commonwealth to preserve the site;

7. Encourage a statewide archaeological education program to inform the general public of the importance of its irreplaceable archaeological heritage; and

8. Designate the State Archaeologist to (i) assist the Director by coordinating, overseeing, or otherwise carrying out the provisions of this chapter and (ii) perform such other duties as required by the Director. The State Archaeologist shall be a technically trained archaeologist and shall have both a practical and theoretical knowledge of archaeology.

1977, c. 424, §§ 10-150.2, 10-150.8; 1984, c. 750; 1988, c. 891, § 10.1-901; 1989, c. 656; 2005, c. 457.

A. It is unlawful for any person to conduct any type of field investigation, exploration, or recovery operation involving the removal, destruction, or disturbance of any object of antiquity on state-controlled land, or on a state archaeological site or zone, without first receiving a permit from the Director.

B. The Director may issue a permit to conduct field investigations if the Director determines that (i) it is in the best interest of the Commonwealth and (ii) the applicant has identified a field supervisor who is a qualified professional archaeologist and who meets or exceeds the following standards:

1. Holds a graduate degree in archaeology, anthropology, or a closely related field;

2. Has at least one year of full-time professional experience or equivalent specialized training in archaeological research, administration, or management;

3. Has at least four months of supervised field and analytic experience in general North American archaeology;

4. Has at least one year of full-time experience at a supervisory level in the study of archaeological resources of the prehistoric or historic period;

5. Has demonstrated an ability to carry research to completion;

6. Has demonstrated the knowledge, skills, and experience to complete the type of investigations proposed; and

7. Has an active membership in or affiliation with a recognized professional archaeological organization, such as the Register of Professional Archaeologists, the Council of Virginia Archaeologists, or a similar organization or institution with an established code of professional ethics and conduct and documented grievance procedures.

In determining whether the field supervisor meets such standards, the Director may consider the performance of the field supervisor on any prior permitted field investigation, exploration, or recovery operation.

C. The permit shall require that all objects of antiquity that are recovered from state-controlled land shall be the exclusive property of the Commonwealth. Title to some or all objects of antiquity that are discovered or removed from a state archaeological site not located on state-controlled land may be retained by the owner of such land. All objects of antiquity that are discovered or recovered on or from state-controlled land shall be retained by the Commonwealth, unless they are released to the applicant by the Director.

D. All field investigations, explorations, or recovery operations undertaken pursuant to a permit issued under this section shall be carried out under the general supervision of the Director and in a manner to ensure that the maximum amount of historic, scientific, archaeologic, and educational information may be recovered and preserved in addition to the physical recovery of objects.

E. If the field investigation described in the application is likely to interfere with the activity of any state agency, no permit shall be issued unless the applicant has secured the written approval of such agency.

F. Any person who conducts any field investigation, exploration, or recovery operation without first obtaining a permit pursuant to subsection A is guilty of a Class 1 misdemeanor.

Any person who willfully misrepresents any information on an application for a permit pursuant to this section is guilty of a Class 1 misdemeanor.

Any person who willfully misrepresents the results, information, or data collected during a permitted field investigation, exploration, or recovery operation is guilty of a Class 1 misdemeanor.

1977, c. 424, § 10-150.5; 1984, c. 750; 1988, c. 891, § 10.1-903; 1989, c. 656; 2020, c. 1106.

A. The Commonwealth of Virginia reserves to itself, through the Director, the exclusive right and privilege of field investigation on sites that are on state-controlled land. The Director shall first obtain all permits of other state agencies required by law. The Director is authorized to permit others to conduct such investigations.

B. All objects of antiquity derived from or found on state-controlled land shall remain the property of the Commonwealth.

1977, c. 424, §§ 10-150.4, 10-150.6; 1984, c. 750; 1988, c. 891, § 10.1-904; 1989, c. 656.

The Director may designate state archaeological sites and state archaeological zones on private property or on property owned by any county, city or town, or board or authority organized to perform local or regional functions in the Commonwealth provided that the Director secures the express prior written consent of the owner of the property involved. No state archaeological site or zone located on private property may be established within the boundaries of any county, city or town which has established a local archaeological commission or similar entity designated to preserve, protect and identify local sites and objects of antiquity without the consent of the local governing body. Field investigations may not be conducted on a designated site without a permit issued by the Director pursuant to § 10.1-2302.

1977, c. 424, § 10-150.7; 1984, c. 750; 1988, c. 891, § 10.1-905; 1989, c. 656.

A. It is unlawful for any person to conduct any type of archaeological field investigation involving the removal of human skeletal remains or associated artifacts from any unmarked human burial regardless of age of an archaeological site and regardless of ownership without first receiving a permit from the Director.

B. Where unmarked burials are not part of a legally chartered cemetery, archaeological excavation of such burials pursuant to a permit from the Director shall be exempt from the requirements of §§ 57-38.1 and 57-39. However, such exemption shall not apply in the case of human burials within formally chartered cemeteries that have been abandoned.

C. The Department shall be considered an interested party in court proceedings considering the abandonment of legally constituted cemeteries or family graveyards with historic significance. A permit from the Director is required if archaeological investigations are undertaken as a part of a court-approved removal of a cemetery.

D. The Board shall promulgate regulations implementing this section that provide for appropriate public notice prior to issuance of a permit, provide for appropriate treatment of excavated remains, the scientific quality of the research conducted on the remains, and the appropriate disposition of the remains upon completion of the research. Such regulations shall also require consultation with any federally recognized Tribal Nations in the Commonwealth pursuant to § 10.1-2205.1. When a burial permit would result in the disturbance of a burial site of an individual that has a cultural affiliation with a particular federally recognized Tribal Nation in the Commonwealth, the Department shall consult and seek consensus with such federally recognized Tribal Nation in the Commonwealth in the consideration and drafting of the permit document. The Department may carry out such excavations and research without a permit, provided that it has complied with the substantive requirements of the regulations promulgated pursuant to this section.

E. Any interested party may appeal the Director's decision to issue a permit or to act directly to excavate human remains to the local circuit court. Such appeal must be filed within 14 days of the Director's decision.

F. For the purposes of this section, "cultural affiliation" has the same definition as provided in 25 U.S.C. § 3001(2) of the federal Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 et seq.) and its regulations. If doubt exists as to cultural affiliation, the federally recognized Tribal Nations in the Commonwealth with potential cultural affiliation shall make the determination.

1989, c. 656; 2024, c. 830.

A. It is unlawful to intentionally deface, damage, destroy, displace, disturb, or remove any object of antiquity on any designated state archaeological site, state-controlled land, or land owned by a battlefield preservation organization or on which such organization holds an easement.

B. A violation of this section is a Class 1 misdemeanor.

1977, c. 424, § 10-150.10; 1988, c. 891, § 10.1-906; 1989, c. 656; 2021, Sp. Sess. I, c. 59.