N.M. Code R. § 4.10.11.8 – Coordination with the State Medical Investigator

A. Excavation, removal, disturbance or destruction of an unmarked human burial or unmarked burial ground may be carried out only by authority of the state medical investigator or of the permitting authority.
B. Any case of sudden, violent or untimely death, any death whose cause is unknown, and any death by criminal act or omission is presumed to have medicolegal significance. It is the responsibility of the MI, in cooperation with the law enforcement agency of jurisdiction, to determine whether an unmarked human burial or unmarked burial ground has such medicolegal significance.
C. Consistent with this responsibility, all unmarked human burials and unmarked burial grounds in the state of New Mexico shall be presumed to fall under the authority of the MI pursuant to Section 18-6-11.2(D) NMSA 1978.
D. Any person who discovers an unmarked human burial or unmarked burial ground shall cease any activity that may disturb that burial or burial ground or any object or artifact associated with that burial or burial ground and shall notify the local law enforcement agency having jurisdiction in the area. The local law enforcement agency shall notify the Ml and the SHPO. The local law enforcement agency may choose not to notify the SHPO in cases in which it is manifestly evident that the burial is recent and death was caused by a criminal act.
E. When notified by law enforcement the SHPO will designate a staff archaeologist or another professional archaeologist, holding a permit as described below (Subsection B of 4.10.11.9 NMAC), to respond to the discovery of an unmarked human burial or unmarked burial ground. Such permitted professional must be prepared to show adequate and appropriate identification or authorization to law enforcement or to MI personnel. When the MI and such professional archaeologist concur in a determination that the unmarked burial or burial ground is without medicolegal significance, the case shall be terminated by the MI to the SHPO in writing.
F. Following termination of jurisdiction by the MI, discoveries of additional human burials within the same unmarked burial ground may be deemed by the MI to fall within the same case and may be terminated in the same case file as the original find.
G. If no representative of the permitting authority is present to inspect the site of the discovery of an unmarked human burial, the burial shall be presumed to fall under the authority of the MI. The MI may terminate jurisdiction to the SHPO in such case.
H. Either the MI or the SHPO may request that an authorized representative of the other office take sole responsibility for making a field examination of an unmarked human burial and for determining whether the burial has cultural significance.
I. Unmarked human burials or burial grounds shall not be excavated by the MI except as the MI or the representative of the MI and law enforcement deem necessary to determine medicolegal significance. When a staff archaeologist of the SHPO or other professional archaeologist permitted by the permitting authority responds to the discovery of an unmarked human burial or burial ground, excavation of that burial or burial ground to determine medicolegal significance will be carried out, to the greatest extent deemed feasible by the MI or representative of the MI, under the direction of the professional archaeologist.
J. When the MI determines that an unmarked human burial or burial ground has medicolegal significance, the MI shall retain jurisdiction of that burial or burial ground and shall proceed consistent with Section 24-11-5 [ff.] NMSA 1978 and established investigative protocols of the MI and of the law enforcement agency of jurisdiction.
K. Any unmarked human burial which is determined by the MI not to have medicolegal significance shall be presumed to have cultural significance and shall be deemed to fall under the provisions of Section 18-6-11.2(E-I) NMSA 1978.
L. On the request of the SHPO to the MI in any case in which the MI retains jurisdiction of an unmarked human burial or burial ground, that burial or burial ground will be excavated, removed and analyzed, to the greatest extent deemed feasible by the MI, under the direction of a staff archaeologist or professional archaeologist permitted by the permitting authority.
[9-15-89; 4.10.11.8 NMAC - Rn, 4 NMAC 10.11.8, 1/1/08]