I. Introduction

Property law and criminal law are a part of the core curriculum in law schools throughout the United States. In these classes, would-be lawyers learn about everything from future interests to title searches, abandoned property, easements, and the evolution of criminal law and procedure. This knowledge gained in law school is frequently put to use by Missouri attorneys, as evidenced by property and criminal law being two of the most common areas of practice in the state.

One aspect of property and criminal law that is not a part of the typical law school curriculum, and likely little-known to practicing attorneys, involves laws affecting cemeteries and burial grounds. In nearly every state, these laws recognize that the normal treatment of a buried corpse is to let it lie.² Nearly every state and the District of Columbia have statutes regulating cemeteries and protecting them from desecration and the disinterment of persons buried therein. And most states have laws guaranteeing that all persons, including paupers and prisoners, are entitled to a decent burial.³ Sanctity of the dead is so basic a principle that it is referred to as "a 'right' of the dead and a charge on the quick."⁴

At first blush, it may appear to most practitioners that laws dealing with the desecration of cemeteries, other burial sites, and grave markers, or laws making it a crime to sell human remains, are arcane and rarely at issue. But such laws are important in modern society for several reasons.

First, the population of the United States increases steadily each year. As a result, land used in the past for grazing livestock and farming, or land once fallow, is increasingly being converted into residential subdivisions and shopping malls located in sprawling suburban communities. In addition to the increasing number of homes and stores, the growing number of people has also resulted in changes being made to Missouri's infrastructure, including highway realignments, expansions, and repairs, as well as an increase in the number of public buildings and the like. Interestingly, these changes, frequently referred to as progress, collide with another movement championed by many people, preservation. For example, the Missouri Office of Historical Preservation has awarded grants for the historical study of cemeteries in the state, and some of those investigations have received significant favorable publicity.⁵

Second, the changes in Missouri's landscape have raised questions about cemeteries, burial grounds, and unmarked graves that have been uncovered during construction and excavation projects, or that must be moved to accommodate changes wrought by the expanding population. For example, the remains of American Indians were found in a burial mound at a construction site in the Terrapin Hills Subdivision in Columbia near the Katy Trail.⁶ Archaeologists working at the site believe the bones date from A.D. 100 to 1000. The archaeologists noted that there are numerous burial mounds along the Missouri river and more than 100,000 recorded archaeological sites in Missouri.⁷

In a similar case, a two-lane road is being widened to accommodate increasing tourist traffic in Osage Beach at the Lake of the Ozarks. A small cemetery is near the road and is surrounded by orange surveyors' flags. The cemetery was associated with a church but, as a precautionary measure, the church building was moved to a different location during the construction of Bagnell Dam. The cemetery contains the graves of 34 people, many of them children, and its first internment was more than 120 years ago.⁸

Third, in recent years the press has reported numerous stories from throughout the country about individuals who grave rob for profit. For example, the sale of more than 200 pieces of statuary and ironwork stolen from graves in above-ground cemeteries located in New Orleans, known as "Cities of the Dead," has led to the criminal prosecution of several well-known art dealers in that city.⁹ The pieces are valued at more than one-million dollars and were shipped out-of-state and sold to wealthy collectors in Los Angeles.

Also publicized has been the plundering of American Indian burial sites by "pothunters" in what has become the billion-dollar per year business of selling artifacts stolen from these sites.¹⁰ In fact, the looting of American Indian burial sites has become so common that one commentator has referred to as our nation's archaeological resources as "an endangered species."¹¹

Fourth, the federal government has become increasingly active in passing legislation affecting grave sites, human remains, and funerary objects. Some laws, such as the Antiquities Act, have existed for decades and primarily affect only public lands. But more recent statutes, such as the Native American Graves Protection and Repatriation Act, may call into question the rights of private landowners to excavate and remove human remains and artifacts from their land. Even the Federal Bureau of Investigation has become involved, establishing a "stolen art hotline" that also encompasses artifacts and antiquities.¹²

As a result of the expanding preservation movement, situations such as those involving the Katy Trail and increasing federal involvement in the area, the need for Missouri lawyers to become familiar with statutes and caselaw affecting cemeteries and burial grounds is probably more important today than in the past. Discussed below are some of the state and federal laws addressing cemeteries, burial grounds, human remains, and funerary objects.

II. Respect For The Dead: A Common Practice Throughout History and the Basis For Criminal Laws Regarding Burial Grounds, Human Remains, And Funerary Objects

Criminalizing the desecration or disturbance of cemeteries, burial grounds, and human remains is a recognition of a respect for the dead existing throughout the ages in nearly all societies.¹³ Burial sites have been revered by people throughout history and in many communities are considered "consecrated" or "venerated" ground.¹⁴ The Saxons, for example, referred to burial grounds as "Gods acre."¹⁵ And in many societies, the burial ceremony itself is a religious rite, as is the dedication of a new cemetery.¹⁶ In America, the religious nature of the burial and dedication ceremonies are best illustrated with two well-known examples: Gettysburg National Cemetery in Pennsylvania and Mount Auburn Cemetery in Cambridge, Massachusetts.

President Abraham Lincoln's "Gettysburg Address," the dedication speech for Gettysburg National Cemetery, admonishes listeners to revere the dead and their burying place by using biblical references and imagery. For example, President Lincoln opens the "Gettysburg Address" by referring to the nation's founding "four score and seven years ago," echoing the book of Psalms ("the days of our years are threescore years and ten . . .").¹⁷ And in the closing lines of the address, Lincoln speaks of a "new birth" for the nation and its people, invoking a passage from the book of John where Jesus says to Nicodemus, "Verily, verily, I say unto thee, Except a man be born again, he cannot see the kingdom of God."¹⁸

Approximately 30 years before the dedication of Gettysburg National Cemetery, the dedication of Mount Auburn Cemetery at Cambridge, Massachusetts, also reflected the importance and sanctity of burial grounds. In his dedication speech for Mount Auburn, United States Supreme Court Justice Joseph Story stated that "our cemeteries, rightly selected and properly arranged, may be made subservient to some of the highest purposes of religion and human duty. They may preach lessons to which none may refuse to listen and which all that live must hear. Truths may be felt and taught, in the silence of our own meditations, more persuasive and more enduring than ever flowed from human lips."¹⁹

Not surprisingly, the roots of American reverence for the dead and their burying places may be traced back to British traditions and common law, which were adopted throughout the United States. British sentiments regarding the care and treatment of the dead and their burial grounds were expressed by former Prime Minister William Ewart Gladstone when he wrote, "Show me the manner in which a nation or a community cares for its dead, and I will measure with mathematical exactness the tender sympathies of its people, their respect for the laws of the land, and their loyalty to high ideals."²⁰

III. State Criminal Laws Relating To Cemeteries, Burial Grounds, Human Remains, And Funerary Objects

Missouri, like most states, has criminalized disturbing cemeteries and burial grounds and trafficking in human remains.²¹ The range of crimes in Missouri is varied, as are the punishments for conviction.

For example, one of the most basic crimes dealing with human remains is that of abandonment of a corpse. Essentially, abandonment occurs when a person disposes, deserts, or leaves a human corpse without notifying the "proper law enforcement officials" in the county where the corpse is located.²² Abandonment is the commission of a class D felony.²³

Other state criminal laws regarding the treatment and disposition of human remains are more complex. For example, "[a]ny person, corporation, partnership, proprietorship, or organization who knowingly disturbs, destroys, vandalizes, or damages a marked or unmarked human burial site" commits a class D felony."²⁴ An "[u]nmarked human burial [site]" includes "any instance where human skeletal remains are discovered or believed to exist, but for which there exists no written historical documentation or grave markers."²⁵ In other words, the actual discovery of the remains is unnecessary for the commission of the crime, because an individual also commits a felony where human skeletal remains are believed to exist, but conclusive documentation or marking is unavailable. State law also makes it illegal to "traffic" in human remains. Specifically, it is a crime for "[a]ny person who knowingly appropriates for profit, uses for profit, sells, purchases or transports for sale or profit any human remains" from a marked or unmarked burial site "without the right of possession to those remains."²⁶ A violation of this statute is a class A misdemeanor for a first offense and a class D felony for each subsequent violation.²⁷ For a "subsequent violation" to have occurred, the first criminal violation is not limited to the trafficking of human remains located in Missouri. Instead, the first criminal violation may have occurred as a result of trafficking human remains located in Missouri, the United States, or any other state.²⁸ This provision is most likely intended to encompass human remains located on federal property. Who has a right of possession of human remains is not indicated in this provision. But individuals who have knowingly disturbed or destroyed a burial site in violation of the law would presumably not have a right of possession.²⁹

Laws making it illegal to traffic human remains are also applicable to "cultural items" contained in burial sites.³⁰ Trafficking cultural items is also a class A misdemeanor for the first violation and a class D felony for subsequent violations.³¹ "Cultural items" include associated and unassociated funerary objects, which are objects placed with the individual "at the time of death, . . . during the death rite or ceremony, or later, and all other objects exclusively made for burial purposes."³²

Missouri law also criminalizes the knowing destruction, mutilation, disfigurement, defacement, injury, or removal of "any tomb, monument, or gravestone, or other structure placed in [a] cemetery, or burial ground, or place of burial of any human being."³³ Persons who commit such acts are guilty of a class A misdemeanor.³⁴ No distinction is made between first and subsequent offenses.³⁵

Criminal penalties are also applicable to cemetery operators for a variety of acts. "Cemetery operator[s]" include "any person who owns, controls, operates or manages [any] cemetery."³⁶ Cemeteries include "property restricted in use for the internment of the human dead by formal dedication or reservation by deed."³⁷ For the purposes of criminal statutes, cemeteries do not include those operated by the state government or its political subdivisions, the federal government or its political subdivisions, any incorporated city or town, any county, or any religious organization or fraternal society holding the property for sale solely to members and their immediate families.³⁸

Cemetery operators who move a "grave marker, memorial, or monument in the cemetery for any reason," must replace "the marker, memorial, or monument to its original position within a reasonable time."³⁹ Willful violation of this requirement results in the commission of a class D felony.³⁹ Upon conviction, a fine not to exceed $10,000 or confinement of not more than five years, or both, may be assessed.⁴¹

Numerous statutory requirements also apply specifically to the operators of "[e]ndowed care" cemeteries. Endowed care cemeteries essentially include those providing "perpetual care, permanent care, continual care, eternal care, care of duration, or any like" situation.⁴² Operators of endowed care cemeteries commit a class D felony if they fail to comply with applicable deposit, trust, bookkeeping, and reporting requirements.⁴³

Finally, cemetery operators who fail to comply with certain other laws are guilty of a misdemeanor, and may be fined no more than $500, confined not more than six months, or both.⁴⁴ For example, if a cemetery contains both endowed and nonendowed sections, the cemetery operator must notify the purchaser of a lot in the nonendowed section that the section is nonendowed.⁴⁵ Any such cemetery must also provide prominently placed signs indicating the location of the nonendowed section "in lettering of a suitable size so it is easily read at a distance of fifty feet."⁴⁶

IV. Federal Criminal Laws Relating To Cemeteries, Burial Grounds, Human Remains, And Funerary Objects

In addition to the various state laws affecting cemeteries, human remains, and funerary objects, a host of federal statutes also regulate the removal, reburial, and defacing of burial grounds and the items located therein. Most of these statutes address burial sites and cemeteries located on federal lands. Given that there are few federally-owned lands in Missouri in comparison to some other states, it might seem that these statutes are of minimal importance to the local lawyer. But some of these federal laws may be applicable to recently-reported controversies regarding burial sites in Missouri.

For example, Missouri officials have recently contended with claims that a new state prison site in Licking, sits atop an American Indian burial ground.⁴⁷ The Iowa Tribe of Oklahoma, whose offices are located in Perkins, Oklahoma, and who also have a historic preservation office in Mercer County, Missouri, sought to enjoin the prison's construction, claiming it will disturb human remains and associated funerary objects in the area.⁴⁸ Richard Black, who works for the tribe, and Tribal Chairman Lawrence Murray reject the validity of earlier research performed in the prison-site area that found no evidence of a burial ground. Both men claim the earlier inspections and testing were not in conformity with federal regulations and have asked that the area be reevaluated for human remains and other funerary objects.⁴⁹

As previously stated, numerous federal laws criminalize certain actions pertaining to cemeteries and burial grounds. But a handful of statutes have received more attention than others from the public and federal prosecutors, including the Antiquities Act of 1906,⁵⁰ the Archaeological Resources Protection Act of 1979,⁵¹ the National Historic Preservation Act,⁵² and the Native American Graves Protection and Repatriation Act.⁵³ Of these, the Native American Graves Protection and Repatriation Act (NAGPRA), was the most-recently enacted and has been especially controversial.

NAGPRA was enacted on November 16, 1990, and has been described as "first and foremost, human rights legislation."⁵⁴ The act was designed to address the desecration of American Indian burial sites and the billion-dollar per year business of selling human remains and artifacts removed from these sites.⁵⁵ It is estimated that between 100,000 and 2 million American Indian corpses have been dug up from their graves for storage, sale, or display at government agencies, museums, universities, and tourist attractions.⁵⁶ Although most states have laws criminalizing such activity, the federal government found that state prosecutors and courts frequently fail to enforce these laws when American Indian burial sites or human remains are involved.

For example, in Wana the Bear v. Community Construction, Inc., the California Court of Appeals held that an American Indian cemetery was not a "cemetery" within the meaning of state cemetery protection laws.⁵⁷ In State v. Glass, the Ohio Court of Appeals held that older human skeletal remains are not considered "corpses" for the purposes of an Ohio grave-robbing statute.⁵⁸ And in another case, no criminal charges were filed when an entire Indian cemetery in Illinois containing the remains of 234 people was uncovered and the remains publicly displayed at the Dixon Mounds Museum.⁵⁹ NAGPRA was enacted as a means of addressing these types of situations consistently and uniformly throughout the United States.

Most of the initial controversy surrounding the act results from provisions requiring museums (excluding the Smithsonian Museum), universities, and the like to repatriate American Indian human remains, funerary objects, sacred objects, and cultural patrimony to tribes with whom the objects have a "cultural affiliation" or a relationship of shared group identity that can be reasonably traced historically or prehistorically.⁶⁰ More recently, however, laws making it a federal crime to traffic in American Indian human remains and cultural items in violation of NAGPRA have received the attention of the public and the courts.⁶¹

NAGPRA prohibits all trafficking of American Indian human remains for sale or profit.⁶² The only exception is where the remains were excavated or exhumed with the "full knowledge and consent" of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe. A cultural affiliation is defined as a "relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe" and an identifiable earlier group.⁶³

The act also prohibits trafficking in cultural items obtained in violation of its provisions.⁶⁴ "Cultural items" include funerary objects (items believed to have been placed with human remains either at the time of death or later as part of a death rite or ceremony and items made for burial purposes or to contain human remains), sacred objects ("ceremonial items which are needed by traditional American [Indian] religious leaders for the practice of traditional Native American religions" by present-day adherents), and cultural patrimony (objects having a "historical, traditional, or cultural importance central" to an American Indian group or culture itself).⁶⁵

The trafficking provisions of NAGPRA are applicable regardless of where the items were obtained.⁶⁶ This means that a private land owner who builds a new house, and who removes and sells American Indian human remains or cultural items from the building site, could be subject to federal prosecution.⁶⁷ The provisions prohibiting the trafficking of human remains may be applied retroactively, while those referring to cultural items are for prospective relief only.⁶⁸

The sale of items covered by NAGPRA does not have to be one involving interstate commerce for the act to apply.⁶⁹ In other words, if a landowner in Ava removes and sells American Indian remains or funerary objects to a collector or dealer in Hannibal, Missouri, either one or both parties may face federal prosecution pursuant to NAGPRA and its enforcement provisions. But if the same landowner digs up a human skull and displays it on her fireplace mantlepiece, or dangles a similarly obtained 200-year-old American Indian "medicine bundle" from her automobile's rear-view mirror, she is not committing a crime under NAGPRA, although she may be subject to state criminal charges.⁷⁰

The penalties for such crimes can be severe. For example, a first-time offense for trafficking human remains or cultural items in violation of NAGPRA is punishable by fine of up to $100,000 and/or one year of imprisonment.⁷¹ A repeat offender is subject to a fine of up to $250,000 and/or a maximum of five years in prison.

No reported cases exist in which Missourians were convicted of trafficking in human remains or artifacts in violation of NAGPRA. But on March 16, 1998, William Stevens, the owner of a store in New York City called "Evolution: Natural History," pled guilty to selling American Indian remains in violation of NAGPRA.⁷² The United States Fish and Wildlife Service investigated Stevens' activities and took possession of three corpses unearthed in Pemiscot County. The Fish and Wildlife Service was unable to identify who excavated the remains, which are thought to be "several hundred years" old and of Illinois-Peoria ancestory.⁷³ Individuals in other states have also been convicted of violating NAGPRA's trafficking provisions.⁷⁴

V. Summary

As demonstrated by these statutes, numerous state and federal laws criminalize the disturbance and desecration of cemeteries and burial sites. Other state and federal laws make it a crime to disturb, disinter, or traffic in human remains and funerary objects. The punishments for such crimes vary, and some can be severe, including substantial fines, imprisonment, or both. It remains to be seen whether increasing population, the conversion of once-undisturbed land into residential subdivisions and commercial developments, and the growing involvement of the federal government leads to more prosecutions for violations of these laws. But lawyers in Missouri should be aware that state and federal laws criminalizing such behavior exist, and the increasing application of such laws in the future is a likely possibility.

© 2000, Virginia H. Murray

Endnotes

¹ Ms. Murray is an assistant attorney general, Litigation Division, with the Missouri Attorney General's Office. She received her B.A. from Marymount University and her J.D. from the University of Kansas School of Law. The opinions expressed herein are solely those of the author.

² Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 Ariz. St. L.J. 35, 38-39 (1992).

³ Id. at 39.

⁴ Id. at 38.

⁵ Study of Cemeteries Reveals History, Insight, St. Louis Post-Dispatch, Sept. 28, 1998 at W1.

⁶ Human Remains Discovered, Columbia Missourian, Aug. 9, 1996 at A1.

⁷ Id.

⁸ Jacqueline Hogan Williams & Beverly Harvey Williams, Camden County, Missouri, Tombstone Inscriptions, Vol. III (1968).

⁹ Antiques Dealers in Grave Thefts Inquiry, Times of London, Feb. 17, 1999 at http://www.museum-security.org/reports/002299.html.

¹⁰ See generally, Derek V. Goodwin, Raiders of the Sacred Sites, N.Y. Times Mag., Dec. 7, 1986 at 64; Harvey Arden, Who Owns Our Past?, 175 National Geographic 376 (1989).

¹¹ Lorrie D. Northey, The Archeological Resources Protection Act of 1979: Protecting Prehistory for the Future, 6 Harv. Envtl. L. Rev. 61, 62 (1982).

¹² Heyward Family Cemetery Gate Still Missing, Savannah Morning News Electronic Edition, June 30, 1998 at http://www.savannahmorningnews.com/smn/stories/063098/

CMNgatemissing.html. This article also discusses the theft of a gate from a family-owned cemetery. The gate, valued at more than $10,000, is approximately 200 years old.

¹³ Trope and Echohawk, note 2 at 38-39.

¹⁴ Id. The word cemetery is of Greek origin (the original term being koimeterion) and means "place of repose" or "sleeping place." Gary Wills, Lincoln At Gettysburg, The Words That Remade America 64 (1992).

¹⁵ Trope & Echohawk, note 2 at 38.

¹⁶ Id.

¹⁷ Holy Bible (KJV) Psalm 90:10.

¹⁸ Holy Bible (KJV) John 3:3.

¹⁹ Wills, note 13 at 65.

²⁰ Trope & Echo-Hawk, note 2 at 38.

²¹ See, e.g., Ala. Code § 13A-11-12 (1996) (desecration of "venerated objects," including public places of burial); Ark. Code Ann. § 13-6-406 (1987) (trade or collection of human remains and associated "burial furniture"); Colo. Rev. Stat. § 18-9-113 (1998) (desecration of "venerated objects," including places of human burial).

²² Section 194.425.1, RSMo Cum. Supp. 1999.

²³ Section 194.425.2, RSMo Cum. Supp. 1999.

²⁴ Section 194.410.1, RSMo Cum. Supp. 1999.

²⁵ Section 194.400(9), RSMo Cum. Supp. 1999.

²⁶ Section 194.410.2, RSMo Cum. Supp. 1999.

²⁷ Id.

²⁸ Section 194.400(5), RSMo Cum. Supp. 1999.

²⁹ Section 194.410.1, RSMo Cum. Supp. 1999.

³⁰ Section 194.410.3, RSMo Cum. Supp. 1999.

³¹ Id.

³² Section 194.400(2)(a)-(b), RSMo Cum. Supp. 1999.

³³ Section 214.455, RSMo 1994.

³⁴ Id.

³⁵ Id.

³⁶ Section 214.270(4), RSMo 1994.

³⁷ Section 214.270(3), RSMo 1994.

³⁸ Id.

³⁹ Section 214.385, RSMo 1994.

⁴⁰ Section 214.410.2, RSMo 1994.

⁴¹ Id.

⁴² Section 214.270(11)-(12), RSMo 1994.

⁴³ Section 214.320, RSMo 1994; § 214.330, RSMo 1994; § 214.335, RSMo 1994; § 214.340, RSMo 1994; § 214.360, RSMo 1994; § 214.400, RSMo 1994.

⁴⁴ Section 214.410.1, RSMo 1994.

⁴⁵ Section 214.380, RSMo 1994.

⁴⁶ Id.

⁴⁷ Iowa Tribe Says it Wasn't Contacted by State on Prison Site Survey, Shawnee News-Star Online, May 12, 1998 at http://www.news-star.com/stories/051298/prison.html.

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ 16 U.S.C. §§ 431, et seq.

⁵¹ 16 U.S.C. §§ 470aa, et seq.

⁵² 16 U.S.C. §§ 470, et seq.

⁵³ 25 U.S.C. §§ 3001, et seq.

⁵⁴ Trope & Echo-Hawk, note 2 at 58-59

⁵⁵ Id.

⁵⁶ Id. at 39.

⁵⁷ 128 Cal. App. 3d 536 (1982).

⁵⁸ 273 N.E.2d 893 (Ohio Ct. App. 1971).

⁵⁹ Hugh Dellios, Town Fears Burial Mounds May Never Be The Same, Chi.Trib., Oct. 13, 1991 at 1.

⁶⁰ The Smithsonian Institution is required to inventory and return culturally-affiliated human remains and funerary objects pursuant to the National Museum of the American Indian Act, 20 U.S.C. § 80q-80q(15).

⁶¹ See, e.g., U.S. v. Corrow, 119 F.3d 796 (10th Cir. 1997).

⁶² 25 U.S.C. §§ 3001(13); 18 U.S.C. §§ 1170(a).

⁶³ 25 U.S.C. § 3001(2).

⁶⁴ 18 U.S.C. § 1170(a)-(b).

⁶⁵ 25 U.S.C. § 3001(3)(A)-(D).

⁶⁶ S. Rep. No. 473, 101st Cong., 2d Sess. 1, 11 (1990).

⁶⁷ No reported cases exist regarding the application of NAGPRA to human remains or artifacts obtained from private land. But the Ninth Circuit Court of Appeals found the Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa, et seq., prohibits the sale, purchase or exchange of "archaelogical resources" removed from either public or private lands. U.S. v. Gerber, 999 F.2d 1112 (9th Cir. 1993).

⁶⁸ 18 U.S.C. § 1170(a)-(b).

⁶⁹ 18 U.S.C. § 1170.

⁷⁰ Section 214.455, RSMo 1994, or § 194.410.1, RSMo 1998.

⁷¹ 18 U.S.C. § 1170(a).

⁷² Notice, 63 Fed. Reg. 32,682 (1998).

⁷³ Id.

⁷⁴ See, e.g., U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999) (Arizona); U.S. v. Kramer, 168 F.3d 1196 (10th Cir. 1999) (New Mexico); U.S. v. Corrow, 119 F.3d 796 (10th Cir. 1997) (New Mexico).