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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.

 The Indiana Code has been updated to reflect changes made by the 2007
 General Assembly and HEA 1010 from the 2008 Session of the General Assembly.

Also check here for updates.

 

Indiana Legislation regarding Pioneer Cemeteries
Indiana Code 35-43 (OFFENSES AGAINST PROPERTY), Chapter 1 ("ARSON, MISCHIEF AND TAMPERING):

IC 35-43-1-1(b): 

    (b) A person who recklessly, knowingly, or intentionally damages . . . a cemetery or a facility used for memorializing the dead . . . without the consent of the owner, possessor, or occupant of the property that is damaged, commits institutional criminal mischief, a Class A misdemeanor. However, the offense is a Class D felony if the pecuniary loss is at least two hundred fifty dollars ($250) but less than two thousand five hundred dollars ($2,500), and a Class C felony if the pecuniary loss is at least two thousand five hundred dollars ($2,500).
This statute does not address the issue of cemeteries "recklessly, knowingly or intentionally" damaged by a property owner
Wording of Indiana Code 23-14-67 (CARE OF CEMETERIES BY COUNTIES), specifically paragraph 2:
"The board of commissioners of a county may appoint a county cemetery commission of five (5) county residents. The commission may request the levy of an annual tax not exceeding fifty cents ($.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.
Indiana 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: 
        (1) Resetting and straightening all monuments
        (2) Leveling and seeding the ground
        (3) Constructing fences where there are none and repairing existing fences
        (4) Destroying and cleaning up detrimental plants, noxious weeds, and
             rank vegetation." 

HOWEVER, this statute "does not apply to a cemetery located on land on which property taxes are assessed and paid".  That exception excludes the vast majority of Indiana's pioneer family cemeteries as most of them are located on private property.  Consequently, the Trustees have no responsibility or duty with respect to most of the pioneer cemeteries in the State.

Indiana Code 14-21 (DNR -- HISTORIC PRESERVATION AND ARCHEOLOGY), specifically Subsection 24: 

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: 
        (1) Surface coal mining regulated under IC 14-34. 
        (2) Cemeteries and human remains subject to IC 23-14. 
        (3) Disturbing the earth for an agricultural purpose." 

"Agricultural purposes" are defined in this statute to include "farming, dairying, pasturage, agriculture, horticulture, floriculture, viticulture, ornamental horticulture, olericulture, pomiculture, animal husbandry, and poultry husbandry." 

Subsection 28 states, "A person who, with the intent to disturb ground for the purpose of discovering or removing artifacts, burial objects, grave markers, or human remains, disturbs buried human remains or grave markers . . . commits a Class D felony." 

That is, unless the person is engaged in surface coal mining or any of the above agricultural purposes.  If one is engaged in such activities, there are no holds barred -- coal miners and farms have carte blanche to remove grave markers and mine or plow or use for animal husbandry these burial places.  Once this has happened, the property can be used in the future for whatever purpose the owner chooses.

Indiana Code 23-14-57 (DISINTERMENT, DISENTOMBMENT AND DISINURNMENT):

 IC 23-14-57 states: 

        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. 

         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." 
     

        INPCRP NOTE:  Though this statute "does not prohibit" the reburial of the remains removed under this statute, likewise, it does not compel the property owner to rebury these remains or to see that the reinterment is handled in an respectful, honorable fashion.  This is what happened at Rhodes Cemetery near Indianapolis.  Duke Realty obtained a permit from the Health Department to remove a cemetery that was in the way of a warehouse construction project; the remains of 35 children and 8 adults were removed from their graves and they have been setting in a laboratory at the University of Indianapolis for more than two years, ostensibly for the purposes of "archeological research".  It also happened at Wilhoit Cemetery in Dubois County.  Those remains have been setting in the same laboratory since the Summer of 1998.
        Sec. 5 indicates that the "remains of a deceased human interred, entombed, or inurned in a plot in a cemetery may be removed from the plot for the purpose of autopsy or reinterment, reentombment, or reinurnment in another cemetery with: 
            (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. 
     

        INPCRP NOTE:  Notice this statute makes no mention of the expense of REinterment, REentombment or REinurnment!
        Sec. 7. A person who knowingly violates this chapter commits a Class B misdemeanor.

        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. 

Uncooperative landowners:
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.

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 The Indiana Pioneer Cemeteries Restoration Project.
Copyright 2007 -Indiana Pioneer Cemeteries Restoration Project