FINAL RESTING
PLACES
OR "PORTABLE" CEMETERIES?
PETITION DRIVE HAS ENDED . .
.
Thank you for your support.
The process for disintering human remains from Indiana's pioneer cemeteries
has become disturbingly commonplace as the onced "hallowed grounds"
that are the sacred last resting places of our ancestors and predecessors
continue to compete with other interests which contend that a cemetery
is NOT the highest and best possible use of valuable real property.
As of July 16, 2001, one cemetery in Floyd County, Indiana has
been moved this year and two more are very real possibilities.
In neighboring Clark County, Indiana, a court order for the disinterment
of one cemetery has been in place since February 6, 2001 and another
court order for the disinterment of another was entered on May 29,
2001 and waits only the rubber-stamp approval of the State Department of
Health. That's five "portable" cemeteries in only two Indiana
counties.
NEWS FLASH FROM 07/30/2001: Slate Run Cemetery in Floyd
Co., IN was on a "fast-track" to being dismantled and relocated because
it stood in the path of a planned roadway at the Kohl Department Store
being built there. The record owner of this deeded cemetery was found
residing in Texas and he transferred the cemetery to the Township Trustee
through a transfer to a 5-person committee.
The Trustee essentially told Kohl Department Store that the cemetery
is actively maintained and that they need to find another route for their
road. Kohl's has apparently given up on carving a path through
Slate Run Cemetery!
We do not presently have statistics on the number of cemeteries that were
dislocated in years past or how many are currently pending in other counties
in Indiana, but an unsettingly trend is developing in several parts of
the state as more and more cemeteries find themselves standing in the way
of "progress". Sadly, the process for obtaining an order for disinterment
is usually done very quickly and very quietly, with no opportunity for
descendants or members of the public to protest or make objections.
No longer are cemeteries and burial sites considered "sacred" or even
"consecrated ground". More and more, they are simply an impediment
to the latest and best in commercial or residential development.
All too often, developers just want to "get rid" of a cemetery on what
used to be family farmland as it is an encumbrance, an obstacle or an obstruction
to their plans.
HOW EASY IS IT TO MOVE A PIONEER
CEMETERY IN INDIANA????
There are two primary methods used to legally dismantle pioneer cemeteries
in Indiana:
File a Petition to Disinter filed with the local Circuit
or Superior Court. This is the preferred course of action
as it is quicker, simpler and more expedient.
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NO NOTICE TO THE PUBLIC OR POSSIBLE DESCENDANTS IS REQUIRED.
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THERE IS NO STATUTORY REQUIREMENT THAT THE PETITIONER PROVE LEGAL CLEAR-TITLE
OWNERSHIP OF THE CEMETERY PROPERTY.
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THERE IS USUALLY NO OPPORTUNITY TO FILE OBJECTIONS.
In all likelihood, the Petition will be granted by the Court without so
much as a "by your leave", sometimes granted simultaneous with the filing
of such a Petition.
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See the case of Whalen Cemetery
in Clark County, specifically In
re the Reinterment of the Human Remains of William Whalen Sr., Elizabeth
Whalen and Jacob Whalen, filed in Clark County Circuit Court, Civil
Action No. 10C-01-0105-MI-311, by Richard Pyke, a funeral director from
Henryville, Indiana, concerning three known burials in Section 147 of Clark's
Grant, measuring approximately 10' x 20', specifically EXCLUDED from
present and past deeds. The Petition to Disinter was filed on
May 23, 2001 and the Order to Disinter was entered on May 29, 2001.
As of July 20, 2001, the disinterment process was waiting only on approval
of a Disinterment Permit to be granted by the State Department of Health,
which is a given in light of the above-referenced court order.
See, also, the case of Brainer
Cemetery in Sullivan County, Indiana.
Fortunately, Black Beauty Coal Co. published a legal notice which alerted
someone who contacted www.SavingGraves.com,
which in turn contacted the INPCRP and set in motion the actions of more
than a dozen people who filed objections to the disinterment with the Sullivan
Co. Superior Court. Black Beauty Coal eventually backed down and
withdrew its Petition to Disinter. Unfortunately, the logging equipment
which plowed through the cemetery some years earlier did so much damage
that only two tiny stone fragments survived, both bearing the surname McCamish.
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File an application for a Permit to Disinter, Remove and
Reinter Human Remains with the Indiana Department of Health pursuant to
Indiana Code 23-14-57 (see sidebar). Since the State Department
of Health can only issue a permit if the application is signed by the spouse
or parent(s) of the deceased, this option is not usually the first
option in the case of a property owner wishing to disinter a pioneer cemetery
as the spouse or parents of the deceased would no longer be living.
HOWEVER, once a Court Order has been issued at the county level, the
moving party must present a copy of that Court Order to the State Department
of Health and such a permit will then be issued.
When such a Permit is granted, using whatever means the permit holder
sees fit and deems "reasonable", he/she/it may dig up the subject cemetery.
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NO NOTICE TO THE PUBLIC OR POSSIBLE DESCENDANTS IS REQUIRED.
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THERE IS NO STATUTORY REQUIREMENT THAT THE PETITIONER PROVE LEGAL CLEAR-TITLE
OWNERSHIP OF THE CEMETERY PROPERTY.
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THERE IS USUALLY NO OPPORTUNITY TO FILE OBJECTIONS.
See the situation of Wilhoit
Cemetery, where in 1998 such a Permit was issued to private property
owners in Dubois County, whereupon the property owners set about excavating
the site themselves with a backhoe -- with neither a qualified archeologist
or even a funerary director being required to supervise the excavation.
Despite the objections of a living descendant of some of those buried
at Wilhoit Cemetery -- including a gentleman who happens to be a sitting
U.S. federal court judge -- the remains were NOT reinterred,
but instead were given to an Indianapolis university for "archeological
study".
Two years later, after a great deal of protest and media
coverage, those remains were reinterred at Shiloh Cemetery in Dubois County.]
WHAT IS THE LAW
IN INDIANA ON
DISMANTLING A PIONEER CEMETERY????
INDIANA
CODE 23-14-57-1 -- Chapter 57. Disinterment, Disentombment, and Disinurnment |
IC 23-14-57-1
Sec. 1. The remains, either cremated
or uncremated, of a deceased human shall not be removed from a cemetery
without:
(1) a written
order of the state department of health;
(2) the written
consent of:
(A) the owner of the cemetery; or
(B) the owner's representative; and
(3) the written
consent of:
(A) the spouse of the deceased; or
(B) the parents of the deceased in the case of a deceased minor child;
or
a court order;
authorizing the disinterment, disentombment, or disinurnment.
As added by P.L.52-1997, SEC.31.
IC 23-14-57-2
Sec. 2. (a) When the state department
of health issues a written order authorizing the removal of human remains
from a cemetery, it shall issue the order in duplicate.
(b) The state department of health
shall deliver one (1) copy of the order to the cemetery from which the
human remains are removed and the other copy of the order to the cemetery
to which the human remains are delivered for reinterment, reentombment,
or reinurnment.
(c) Each cemetery to which a copy
of an order is delivered under subsection (b) shall retain the copy of
the order permanently.
As added by P.L.52-1997, SEC.31.
IC 23-14-57-3
Sec. 3. (a) This chapter does not
prohibit:
(1) the removal
of human remains by a cemetery owner from a plot, building, or structure
for which the purchase price is past due and unpaid; and
(2) the reinterment,
reentombment, or reinurnment of the remains in some other suitable plot
in the cemetery.
(b) For a removal and reinterment,
reentombment, or reinurnment (at the discretion of the cemetery owner)
referred to in subsection (a), the cemetery owner is not liable in any
action unless the owner fails to exercise reasonable care in the removal
or reinterment, reentombment, or reinurnment. There is a rebuttable presumption
that the owner exercised reasonable care in the removal or reinterment,
reentombment, or reinurnment.
As added by P.L.52-1997, SEC.31.
IC 23-14-57-4
Sec. 4. This chapter does not apply to the
disinterment, disentombment, or disurnment of remains upon the written
order of the coroner of the county in which the cemetery is situated.
As added by P.L.52-1997, SEC.31. |
.IC 23-14-57-6
Sec. 6. Before any disinterment, disentombment,
or disinurnment may take place under this chapter, the reasonable costs
and expenses of the disinterment, disentombment, or disinurnment, including
attorney's fees, must be paid by the person or persons applying for the
disinterment, disentombment, or disinurnment.
As added by P.L.52-1997, SEC.31.
IC 23-14-57-7
Sec. 7. A person who knowingly violates
this chapter commits a Class B misdemeanor.
As added by P.L.52-1997, SEC.31.
IC 23-14-57-8
Sec. 8. The owner of a cemetery is
not liable in any action for a removal or reinterment, reentombment, or
reinurnment described in this chapter unless the owner fails to exercise
reasonable care in the removal or reinterment, reentombment, or reinurnment.
There is a rebuttable presumption that the owner exercised reasonable care
in the removal or reinterment, reentombment, or reinurnment.
As added by P.L.52-1997, SEC.31. |
WHY IS THIS A PROBLEM????
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Neither the Courts nor the State Department of Health require proof
of ownership of the cemetery property.
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No title search or even recent deed record evidence is required to
prove the applicant is the owner of record of a cemetery. The cemetery
may well be an exception on the deed for the surrounding property,
but the applicant does not have to advise the Court or the Department of
Health of this fact and, after the human remains are removed, he/she/it
becomes the possessor of an unencumbered piece of potentially very valuable
real estate.
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No public notice is required to alert potential descendants or other
interested parties that the human remains in question are about to be disinterred.
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No notice is required to the Township
Trustee, who may be statutorily responsible for the identification
and maintenance of the subject cemetery.
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Neither is there a requirement that the County
Cemetery Commission (if one exists) be notified in advance of or after
the fact.
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There is no requirement that persons with specialized training or
experience supervise the disinterment.
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There is no requirement that the displaced human remains will be
expediently or even eventually reinterred beyond the "rebuttable presumption
that the owner exercised reasonable care in the removal or reinterment,
reentombment, or reinurnment" (see IC 23-14-57-8, at right above).
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There is no requirement that descendants or other interested parties
be permitted an opportunity to file objections to the disinterment or that
they be permitted to be present for the disinterment and reinterment.
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There is no requirement that the State Department of Natural Resources'
Division of Historic Preservation and Archeology be notified in advance
of or after the fact of a disinterment, despite the fact that the DHPA
is mandated to create and maintain a database of cemeteries and burial
sites throughout the state (see IC
14-21-1-13.5).
While Indiana
Code 14-21-1-26.5 prohibits the disturbance of soil within 100 feet
of any known cemetery or burial ground for most "development" purposes,
this statute is easily circumvented by simply obtaining a court order and/or
a State Department of Health permit to disinter, all without notice to
the State Department of Natural Resources or its Division of Historic Preservation
and Archeology.
If you are disturbed by the ease with which
YOUR
ancestors' remains might be removed from their "final resting place" and
if you want to help stop the trend of considering Indiana's pioneer family
cemeteries as being portable, please write today to Rep.
Markt Lytle, the Chairman of the House Agriculture, Rural Development
and Natural Resources Committee.
While we will never be able to outlaw disinterment of
these cemeteries, it is only by convincing our State Legislators that this
is a growing and urgent problem that we can make the process of dismantling
pioneer family cemeteries (1) more difficult, (2) more expensive
and (3) more open to public comment and objection. It is our
hope that such changes would reduce the number of "portable" cemeteries
in the State.
PETITION DRIVE HAS ENDED . .
.
Thank you for your support.
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