Unearthing the Dead: Protocol, Process, and Reverence
October/November 2021 I Nashville Bar Journal I Lisa K. Helton
For full article with citations, please visit this link.
You never know what – or who – lies beneath the surface. Imagine engaging in construction, landscaping, or other improvements to real property, and suddenly making a grim discovery: you have stumbled upon human remains. Tennessee law imposes obligations on one who accidentally disturbs a gravesite and prescribes the process to follow, should the cemetery need to be relocated.
First, stop all activity at the site.
With some exceptions for farming and surface collecting activity, Tenn. Code Ann. § 11-6-107(d) requires parties who encounter or accidentally disturb human remains to immediately cease disturbing the ground and contact the state coroner or medical examiner and local law enforcement. Failure to comply with these requirements is a Class A misdemeanor. Either the coroner or the medical examiner must examine the remains and, within five working days, determine whether the site merits further investigation. If the coroner or the medical examiner and law enforcement have no forensic or criminal concerns with regard to the site, then the coroner or the medical examiner shall notify the Tennessee Division of Archeology.
Rebury the remains.
After satisfying all notice requirements and alleviating any forensic or criminal concerns, Tenn. Code Ann. § 116-119 imposes, with some exceptions, a duty to rebury the remains within six months of the discovery. The statute details the manner in which the remains must be reburied, providing a mechanism for scientific analysis of the remains beforehand. Tenn. Code Ann. § 11-6-104 discusses the treatment of artifacts recovered at the gravesite, stating that these objects may become the property of the state of Tennessee and be placed under the custodianship of the Division of Archeology. These statutes apply to the inadvertent unearthing of human remains per Tenn. Code Ann. § 11-6107(d)(4).
Petition for terminating a gravesite.
The procedural complexity comes when a party finds it necessary to relocate the gravesite, such as in the case of the discovery of human remains during the construction of a residential neighborhood. Tenn. Code Ann. §§ 46-4-101 to -104 outline the procedure for terminating a site as a burial ground. The owner of the real property where the grave was discovered, certain governmental entities, or any other interested person may bring the petition in the Chancery Court in the county where the grave is situated.
Tenn. Code Ann. §§ 46-4-102 and 103(b) and relevant case law require the petitioner to make reasonable efforts to locate potential interested persons. “Interested persons” is defined in Tenn. Code Ann. § 46-4-102 to include the nearest relative(s) of the decedents. From a practice standpoint, genealogy websites and professional heir searches are helpful for this task. Tenn. Code Ann. § 46-4-103(b) provides that known defendants who are minors or otherwise incompetent or under disability shall be represented by a guardian ad litem. If the petitioner cannot locate the interested persons, the petitioner may notify unknown defendants by publication. Effective 2018, Tenn. Code Ann. § 464-103(c) contains provisions requiring notice to the Tennessee Historical Commission:
To succeed in the Chancery Court, the petitioner must demonstrate that the burial ground is no longer suited or proper for use as a gravesite because: (1) The burial ground is abandoned; (2) The burial ground is in a neglected or abandoned condition; or (3) The existence of any conditions or activities about or near the burial ground that the court finds render the further use of the burial ground for the purposes mentioned in this section that are inconsistent with due and proper reverence or respect for the memory of the dead, or for any other reason unsuitable for those purposes.
Create a detailed reburial plan.
As part of the petition, the petitioner must have a plan to relocate and rebury the decedents. The petitioner must show to the court’s satisfaction that the removal and reburial of the remains will be done with due care and decency and that a suitable memorial will be erected at the place of reburial. From personal experience, the court may request such details as the type of marker to be placed at the new gravesite and the permanency of the memorial, to ensure the graves are not lost again in the future.
Some of the above discussion varies depending upon whether the grave discovered contains Native American remains or artifacts.
While you may imagine it is rare to discover an unmarked grave, I have represented clients who have encountered this situation and have found the final resolution rewarding for all parties involved. The process can bring a sense of closure. Not only is the abandoned grave restored and maintained going forward, but some relatives may not even know that family members were buried nearby. Recently, I had the honor of being graveside while the heirs held a ceremony for their loved ones as they were reburied.
It is about dignity, reverence, and respect.
The intent behind Tennessee’s grave discovery and relocation statutes is clear: the living should treat the dead with respect and dignity, and the deceased’s closest relatives must be given the opportunity to participate in any decision to relocate their remains. It is a gratifying process that invokes legal analysis, history, ancestry, and mortality.
