Human Remains and Burials

If a developer or citizen encounters or accidentally exposes human remains or gravesites, regardless of the age or cultural affiliation of those remains, they are required by law to stop all work in the immediate area, and notify the medical examiner or coroner, and local law enforcement (T.C.A. 11-6-107d). The Division of Archaeology should also be notified via the contact information provided above. These steps should be followed any time human remains are discovered.

There are several state statutes relevant to the disturbance of human remains and cemeteries in Tennessee. The primary statutes consist of T.C.A. 39-17-311 (Desecration of a Venerated Object) and T.C.A. 39-17-312 (Abuse of Corpse). Desecration of a place of burial is a Class A misdemeanor; to disinter a corpse without legal authority is a Class E felony. A complete copy of laws regarding Cemeteries in Tennessee may be found here.

Persons interested in property for purchase or development should be aware of the potential presence of cemeteries. Helpful ways to determine if a cemetery is located on a particular tract of land include: checking old deeds and other property records; inspecting old maps; and speaking with long-time residents of the area. In the case of historic graves, also look for sunken areas that are oriented east-west, for vinca minor (also known as cemetery ivy), and for tombstones or plain stone markers.

If a cemetery exists or is determined to be present on a particular piece of property, then the landowner has certain obligations that must be followed. For example, any construction must allow a buffer around the perimeter of the graves or crypts (T.C.A. 46-8-103). In addition, if a cemetery is shown on a deed, both immediate and future owners have an obligation to protect the graves from disturbance. Under state law, family members have a right to visit the graves of their ancestors, even though someone else may own the property (T.C.A. 46-4-104).  To protect an ancestral burial ground, family members should make sure the cemetery is well-marked with a fence and a sign. Also, the cemetery should be surveyed by a professional surveyor and recorded on the deed. These actions will help ensure that the cemetery will remain part of the public record.

Each year the Division of Archaeology receives numerous reports from public and private interests of human skeletal remains exposed as a result of various ground-disturbing activities (construction, farming, erosion, etc.). We respond to these reports with an initial evaluation whether or not human skeletal remains are present. In those cases where human remains are exposed (or have the potential to be disturbed), the Division provides technical advice to help landowners understand their obligations and options under the state's cemetery statutes. It is always the landowner's responsibility to follow the state cemetery laws. The Division of Archaeology cannot force a private landowner to conduct a burial investigation or removal, and our involvement is limited to technical advice unless human skeletal remains are actively disturbed. At this time, the Division of Archaeology does not have the available resources to conduct field evaluations (locate or assess cemetery boundaries, determine the number of graves, etc.) on private property. There are, however, a number of private archaeological consultants working in Tennessee that can provide such services.

• Archaeological consultants working in Tennessee (pdf)
  

State law provides a process by which a landowner or family may request permission from the Chancery court to relocate graves to another cemetery (T.C.A. 46-4-101-104, Termination of Land Use as Cemetery). To qualify the cemetery must be abandoned, in a neglected condition, or the new proposed use of the existing cemetery must be inconsistent with proper respect and reverence for the dead. The relatives of the deceased must be given legal notice, but they do not have to give their permission. It is the right of property owners to remove and relocate the graves at their own expense. The removal must be done with due care and decency, and the landowner must provide a suitable place for reinterment of the removed remains. A disinterment order from the State Department of Health, State Registrar, Office of Vital Records (T.C.A. 68-3-508 and Rule 1200-7-1-.08) may be required prior to the removal of any human remains. For additional information on the removal and relocation of Native American graves, please consult the Rules of the Tennessee Department of Environment and Conservation Chapter 0400-09-01.

If human remains or gravesites are uncovered during development or construction, the TDOA may assist the builder and/or landowner in considering options to avoid the burial(s). If avoidance is not feasible then the builder and/or landowner must follow the legal process to move any graves.

Archaeological techniques are better for addressing very old gravesites and those that have been abandoned, or where there are no above-ground burial markers present. Archaeologists have more experience in identifying associated artifacts, and may have a better chance of identifying the deceased in locations with poor preservation conditions. Identification and removal of modern (post-AD 1925) graves is better handled by funeral homes.

The establishment of a private cemetery is not regulated by state law and does not fall under the purview of the Division of Archaeology. This falls under local jurisdiction, and the county planning office should be contacted.

Please see: Processes and Procedures for the Transfer of Human Skeletal Remains and Funerary Objects to the Tennessee Division of Archaeology