|Indiana INPCRP Review of Current Indiana Statutes regarding Cemeteries|
Indiana's laws "protecting" cemeteries are
shamefully inadequate and routinely not enforced, particularly the ones
dealing with vandalism.
Below you will find links to the full text of the statutes relating to this subject and a synopsis of the most critical provisions.
|Indiana Legislation regarding Pioneer Cemeteries|
Code 35-43 (OFFENSES AGAINST PROPERTY), Chapter 1 ("ARSON, MISCHIEF AND
|Wording of Indiana
Code 23-14-67 (CARE OF CEMETERIES BY COUNTIES), specifically paragraph
"The board of commissioners of a county may appoint a county cemetery commission of five (5) county residents. The commission may request the levy of an annual tax not exceeding fifty cents ($.50) on each one hundred dollars ($100) of assessed valuation of property in the county for the purpose of restoring and maintaining the cemeteries described in section 1 of this chapter that were established in the county before 1850."The unfortunate use of the word "may", as shown in bold above, provides no mandate to the county commissioners. The amendment of this section to change the word "may" to "shall" should be a priority goal of this project. Further, even in the County Commissioners opt to create a County Cemetery Commission, the County Councils are under no duty or obligation to fund the Cemetery Commission.
Code 23-14-68 (CARE OF CEMETERIES BY TOWNSHIPS):
"The trustee of each township shall locate and maintain all the cemeteries described in section 1(a) of this chapter that are within the township. . . . For the purposes of this chapter, the maintenance of a cemetery includes the following:
14-21 (DNR -- HISTORIC PRESERVATION AND ARCHEOLOGY), specifically
This statute ostensibly offers some measure of "protection" to Indiana's pioneer family cemeteries; however, the single greatest threat to these sites is specifically EXCLUDED from the provisions of the statute; to-wit:
"Sections 25, 26, 28, and 29 of this chapter do not apply to the following:
Code 23-14-57 (DISINTERMENT, DISENTOMBMENT AND DISINURNMENT):
IC 23-14-57 states:
(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.
Sec. 2 goes on to explain the process for distribution of copies of the state department of health permit to the original cemetery and the destination cemetery.
Sec. 3 advises that "this chapter does not
prohibit . . . the reinterment, reentombment, or reinurnment of the remains
in some other suitable plot in the cemetery."
(1) the consent of the owner of the cemetery; and
(2) the written consent of:
(A) the surviving spouse in the case of a deceased married person; or
(B) the surviving parents in the case of a deceased minor child.
(b) If the consent of:
(1) the owner of the cemetery; or
(2) a person from whom consent is required under subsection (a)(2);
can not be obtained, the remains of a deceased human can be removed for the purpose of autopsy or reinterment, reentombment, or reinurnment in another cemetery only under a judgment of the circuit or superior court with jurisdiction in the county in which the cemetery is located.
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.
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.
We have found no statutes which assure descendants or researchers access to pioneer family cemeteries on private property.
If you do any amount of work with old cemeteries, at one time or another you have run across a landowner who refused to allow you access to a land-locked cemetery. Being refused access, being run off at gun point, and chained and locked cemetery gates are all things we or someone we know has had to contend with.
The problem here is ignorance. In some cases the landowner feels that he owns the cemetery because it is surrounded by his land. In reality, if the burial grounds were "deeded out", then the cemetery may be the property of the township.
Often, county law enforcement is ignorant of the law regarding access to township property or are unwilling to press the issue.
Since Indiana cemetery protection laws are some of the least enforced laws in the state, township trustees are often very lax about tending to these isolated old family plots.
The best tool we have in these cases is public awareness. When the general public knows what can and must be done to protect these sites, local law enforcement will be forced to support our efforts.
This page, including all text and graphics, is copyrighted. Do not copy or redistribute this information without
permission of the author, Lois Mauk or the State Coordinator of The Indiana Pioneer Cemeteries Restoration Project.
The Indiana Pioneer Cemeteries
© Copyright 2007 -Indiana Pioneer Cemeteries Restoration Project