HD40 - A Study of the Adequacy of Virginia Law Related to the Removal of Human Remains from Archaeological Sites and Abandoned Private Cemeteries

Executive Summary:
House Joint Resolution 106 requested the Department of Historic Resources in consultation with the Department of Agriculture and Consumer Services to study “the adequacy of Virginia law related to the removal of human remains from archaeological sites and abandoned private cemeteries.” Within this broad request the resolution asked that the study specifically consider: “(i) minimum standards for the removal of human remains from archaeological sites; (ii) the adequacy of notice to next-of-kin, descendants, and other interested parties; (iii) the laws of other jurisdictions concerning these issues; and (iv) what changes, if any, in Virginia law may be needed.

Examining the issue of removing unmarked graves and abandoned cemeteries required that this study look broadly at the larger context. There is a tension between the value we place as a society on gravesites as sacred ground and the rights of the current owners or public agencies to use that property as they see fit. That tension can lead to conflict and to deliberate and technically unlawful loss of abandoned cemeteries and unmarked graves, as well as to deterioration through simple neglect. Strengthening procedures for removing graves without addressing some of the broader issues of identification, protection, enforcement and incentives only serves to increase this conflict. Therefore this study also reviewed the findings of an earlier study conducted on the issues of abandoned cemeteries in general, representative examples of cases brought to the Department by concerned citizens, and some of the procedures used by other states to deal with the underlying issues.

Virginia cemetery protection laws are generally comparable to those of other states in that they include basic violation of sepulture and vandalism to cemetery laws and a court order procedure for the removal of graves and abandoned cemeteries. A little-known permit intended for disinterment, transport and reinterment of recent bodies to and from active cemeteries is frequently used as an alternative to the court order and archaeological permit processes, even though that is clearly not the intent of that section of the Code. Administered by local health departments this transport permit provides no requirements for notification or standards for the method of removal on the disinterment.

Notification requirements in both Virginia’s court order and archaeological permit procedures are comparable to those in other states. No notification is required for a disinterment/transport permit. As with most states, Virginia court order procedures require notification of heirs if known and public notice in a newspaper of local circulation to demonstrate a good faith effort to alert unknown descendents and other interested parties to the proposed removal. Only one state (Georgia) requires extensive genealogical research at the expense of the person planning to remove the cemetery to locate otherwise unknown family descendents.

Standards for removal of human remains from archaeological sites in Virginia are adequate and consistent with growing protective legislation in other states but only when the work is conducted by an archaeologist. Virginia does not currently require removal of human remains to be conducted by an archaeologist. Further, when consulted by public agencies or by the courts, the Department of Historic Resources only recommends that graves be removed through archaeological means for those cemeteries meeting the criteria for consideration in the National Register of Historic Places. More states are moving toward requiring archaeological and historic research associated with removal of abandoned cemeteries for several apparent reasons: 1) archaeological removal is by its very nature painstakingly careful, detailed and respectful; 2) it represent a further public benefit to be derived when graves are disturbed; and 3) it provides the best means of both learning who was buried in the cemetery and ensuring that all graves are found and removed. Archaeology conducted consistent with normal professional standards meets or exceeds the “due care and decency” measure so often not followed when using other means of removal.

The primary difference between current Virginia law and the laws of an increasing number of states is that Virginia has neither specific protections for Native American graves, nor requirements that the more careful and thorough techniques of archaeology be used in most or all unmarked grave and abandoned cemetery removal. Further, Virginia’s disinterment/transport permit provides a “loophole” through which applicants can completely circumvent the requirements of the court order or archaeological permit processes. As other states grapple with the same problems of increasing family cemetery deterioration, abandonment and removal, a few states have model programs with some combination of 1) legal protections, 2) permit procedures (rather than court orders) to remove unmarked graves and abandoned cemeteries, 3) statewide inventories and certification of historic cemeteries, and 4) incentives for property owners to maintain (or at least not destroy) small family cemeteries. Florida, Georgia, West Virginia and Wisconsin provide examples of some of the most effective of such programs.

In order to provide a measure of consistency and standardized procedures for the removal of cemeteries and unmarked graves many other states have elected to take the process out of the courts and to create an applicable permitting procedure. Permitting procedures in other states are usually administered either by a cemetery board or commission or by the state’s historic preservation office (that state’s equivalent to the Department of Historic Resources). Burial removal permits seem to be administered by cemetery boards in states where there are relatively fewer non-Native American burials outside of established, licensed cemeteries. As with the locally administered disinterment/transport permits in Virginia these procedures also place fewer requirements for notification and for methods used in removing graves. The procedures administered by the historic preservation agency are usually in states where the law explicitly addresses the various cultural and historical values placed on graves and cemeteries, and where, as in Virginia, there is a long history of burial on private lands.

A series of options are presented that would: 1) clarify current law; 2) create a permit procedure to provide more consistent standards for removal of graves from all abandoned cemeteries and archaeological sites; 3) improve information for families, property owners and local jurisdictions; 4) improve enforcement of existing laws; and 5) provide incentives to reduce loss of cemeteries through neglect.