THE TENNESSEE STATE CEMETERY LAW AND ITS IMPACT UPON PREHISTORIC SITE PRESERVATION

Michael C. Moore

Abstract

Introduction

Tennessee residents have been curious about prehistoric Indian sites ever since the state was first settled in the 18th century. For the public, one of the more fascinating aspects of Native life has been the ways in which they buried their dead. Unfortunately, such interest lies not with the burial ceremonies or methods of interment, but rather the exotic grave associations often found with the skeletal remains. The acquisition of these artifacts by amateur collectors and professional relic dealers has contributed to the destruction of numerous sites across Tennessee.

For many years the looting of Indian graves was widely promoted as a hobby or profitable business venture. Fortunately, recent changes in the state cemetery law provide prehistoric graves the same legal protection as historic interments.

The State Cemetery Law in Tennessee

The inclusion of prehistoric graves under the state cemetery law follows a national trend of increased sensitivity toward the rights and feelings of Native Americans with respect to their ancestors. It is unfortunate that even as late as 1983, the Tennessee Attorney General's office interpreted the state cemetery law to exclude prehistoric graves on the basis that the original lawmakers had intended the statute to cover only historic remains. The Attorney General's opinion was that if a grave robbing case involving prehistoric burials was brought to court, the presiding judge would have no precedent to guide his/her decision.

This opinion changed in 1984 when the cemetery vandalism law (Tennessee Code Annotated 39-3-1327) was passed in reaction to recent episodes of destruction in historic graveyards. The sponsor of this bill, in reply to questions during the legislative debate, stated that this law would also cover prehistoric Indian graves. This response established the legislative intent of the cemetery law to protect all human burials in Tennessee from vandalism, whether they be prehistoric or historic.

Although the protection of prehistoric remains was now mandated by law, it soon became apparent that additional guidelines were needed for those cases where the removal of prehistoric graves was imminent. In 1986, these guidelines were formulated in response to events surrounding the development of a major prehistoric site in middle Tennessee.

To briefly describe these events, in 1985 a Nashville developer announced plans to build a subdivision in an area which included the Gordontown site (40DV6), a significant Mississippian period village. The developer entered into a unique agreement with the Tennessee Division of Archaeology to record as much information as possible prior to site destruction. From fall of 1985 through spring of 1986, each proposed house lot was uncovered and examined for archeological features prior to development. As anticipated, the most numerous feature class recorded by these investigations was human burials.

During the Gordontown project, a meeting between the Division of Archaeology, the Tennessee Commission on Indian Affairs, the State Attorney General, and the State Archaeological Advisory Council was held to discuss the cemetery law and the excavation of human remains at Gordontown. These agencies determined that the removal procedures used at Gordontown should continue as scheduled, but that all future projects which involved the disturbance and/or removal of Indian graves would have to go through the "termination of land use as cemetery" process (Tennessee Code Annotated 46-4-101, et seq.), the same statute through which historic cemetery removals are handled. With this action, the state established formal procedures for the removal and reburial of prehistoric graves.

Procedures for Implementing and Enforcing the Cemetery Statute for Prehistoric Sites

Since 1986, the enforcement of the cemetery law for prehistoric graves has become a relatively standard set of procedures. The process is initiated with the exposure of human graves and subsequent landowner decision for dealing with them. Generally, when known or suspected human burials are encountered, the state archeologist's office is to be notified and requested to examine the remains. Other qualified archeologists (approved by the state archeologist) may also be asked to inspect suspected burials. If inspection determines the skeletal material is indeed human and of prehistoric origin, then the state archeologist's office retains jurisdiction over the case.

Once the presence of prehistoric human graves has been documented, all activity in the known or suspected cemetery areas is postponed immediately. Two alternatives are then available to the landowner. He/she may choose to permanently discontinue the activity that exposed the burials, at which time the remains are covered over and the case closed. If the landowner wishes to continue land altering activities within the cemetery area, the statute protecting human remains is enforced.

Once a landowner decides to continue any destructive activity (such as bulldozing or trenching) in the cemetery area, he/she must petition the county chancery court to terminate the use of the area as a cemetery. By order from the chancery court, burials in an existing cemetery can be removed and transferred to another cemetery.

The primary components of a termination petition for prehistoric sites include the petitioner's name and address, a legal description of the project property, a summary of events which led to the exposure of human remains, a formal request to remove and relocate the remains, and a listing of conditions and procedures by which the removal will be performed. An affidavit from a professional archeologist (usually the state archeologist) may also be submitted with the petition, indicating that, among other things, the graves are indeed prehistoric in nature and their expedient recovery is necessary to protect them from vandalism and relic collectors. Once the court order is signed, a consulting archeologist is hired by the landowner to remove the burials (at the landowner's expense) using standards archeological methods and techniques. The Tennessee Division of Archaeology supervises, but does not actively participate in the removal unless specifically requested by the landowner.

A statement about historic graves may be appropriate at this time. Should the exposed burials be identified as historic (generally 18th to 20th century), the state archeologist does not retain control over the case. Exceptions to this policy may include graves from contact period or Civil War sites, those on state- and federally-owned lands, or those cases when the landowner has specifically asked the state archeologist to investigate.

After excavation of the prehistoric graves is completed, the state archeologist prepares an affidavit stating all human burials within the proposed project area have been removed. The landowner may then proceed with construction plans as originally scheduled. Concurrently, the consulting archeologist prepares a summary report on the cemetery removal for the state archeologist. This report includes (but is not limited to) a discussion of the project background, field methodology, burial analysis, identification of artifacts recovered, and project results. Upon completion of the report, the consultant turns over all recovered burials, artifacts, and records to the Tennessee Division of Archaeology for curation. At that time, the burials are sent to the University of Tennessee, Department of Anthropology in Knoxville, for a detailed osteological analysis. The Department conducts these studies under contract with the Division. After the analysis is completed, the remains are returned to the Division of Archaeology for subsequent reburial at a designated state facility.

The Cemetery Law in Action

The most recent case involving the cemetery law took place in November of 1988 when earth-moving activities for a water supply facility disturbed several Mississippian period stone-box graves. The site occurs in Montgomery County (north-central Tennessee) on a high ridge top which overlooks the Cumberland River. After recognizing that human graves had been disturbed, the contractor informed the landowner (in this case a local utility district), who in turn contacted the Division of Archaeology. Division personnel visited the site area and determined that approximately ten stone boxes had been exposed, and that there was a high probability for the discovery of additional graves.

At that time, representatives of the utility district were informed of the laws and guidelines which pertain to the disturbance and removal of prehistoric Indian graves. Accordingly, the utility district obtained a court order from the Montgomery County Chancery Court to terminate the area as a cemetery.

A consulting archeologist was immediately hired upon issuance of the court order to remove all graves within the proposed project area. Those burials initially uncovered by construction were exhumed first. The project area was then mechanically stripped to locate and record any previously unexposed burials. Fifty-seven individuals from fifty stone boxes were eventually removed from the site. When the project report is complete, all skeletal remains, artifactual material, and field records will be transferred to the Division of Archaeology. As stated earlier, the skeletal remains will then be sent to the University of Tennessee, Department of Anthropology for detailed analysis, after which the remains will be returned to the Division for reburial.

To date, a total of 180 prehistoric burials from seven sites have been removed under the cemetery law. However, none of these burials have been reinterred since the first skeletal sample has yet to be returned to the Division of Archaeology. At this time, the Division is continuing its search for an appropriate burial facility to transfer all prehistoric skeletal remains removed under the cemetery law; however, Pinson Mounds State Archaeological Area in west Tennessee has been mentioned as a possible location. Alternative methods for reburying the remains are also being considered.

A topic of concern to archeologists and other groups is the disposition of grave goods associated with the removed individuals. In Tennessee, all artifactual material is considered property of the state and will not be reburied with the skeletal remains. Rather, these artifacts are curated at the Division of Archaeology and are available for scientific study and public education.

The Cemetery Statute and Its Effect Upon Prehistoric Sites

Without question the cemetery law provides important protective measures against the looting and disturbance of prehistoric Native remains. However, the authorized relocation of prehistoric cemeteries often adversely impacts previously undisturbed archeological resources associated with the graves. The potential for destroying more archeological information than is gained from the relocation process provides an interesting background in which to briefly review the law's strengths and weaknesses.

For many years prehistoric graves uncovered during construction-related activities were viewed as a nuisance to be covered over as quickly as possible. In contrast, relic collectors saw these exposures as a great opportunity to acquire valuable artifacts. Fortunately, these formerly commonplace events are illegal under recent interpretations of the cemetery law. The statute now requires all landowners to protect prehistoric human burials on their property. Any artifacts associated with the skeletal remains are considered to be part of the burial and are also protected from vandalism.

Prehistoric graves removed in accordance with the cemetery law represent a significant pool of information for archeologists. Supervised excavations using standard archeological techniques record details which otherwise may be destroyed by conventional funeral home methods. Archeologically recovered burials can yield important comparative data on such topics as mortuary patterns, social status, diet, and pathologies. However, studies that utilize this information should take into account the fact that these burials may not be a representative sample of the mortuary population at the site. The cemetery law requires the relocation of only those particular graves which occur within the specific project area.

Probably the most significant drawback to the law is the lack of attention other archeological resources within the cemetery area receive during the removal process. The cemetery law is not a cultural resource protection law (such as Section 106 of the National Historic Preservation Act of 1966), and court orders issued for the relocation of prehistoric burials do not require an assessment of non-burial features which occur in the cemetery area. Several relocation cases in the middle Tennessee area have uncovered intact village areas with such habitation features as structures, trash pits, and hearths. Most developers operate on a tight timetable and are reluctant to authorize any more work than is absolutely necessary for grave removal. As a result, consulting archeologists can commit little time toward the investigation of non-cemetery features uncovered during the relocation process. An excessive amount of valuable archeological information is being lost as a result of enforcing the cemetery law.

Concluding Remarks

Most people can recall an occasion when a prehistoric cemetery was uncovered and subsequently destroyed by a construction project. Requests to postpone development in these cemetery areas long enough to record the available site information were at times met with less than enthusiastic responses. Some landowners (although possibly interested in Indian culture) viewed these salvage requests as an unacceptable loss of project time and money, whereas others were just not sympathetic to the goals of archeology. In this light, the protection of prehistoric sites under the cemetery law can be considered a victory for those persons who helplessly observed such destruction in the past.

In contrast, the supervised removal of prehistoric burials contributes to the destruction of other archeological resources which occur in the cemetery area. Procedural changes should be forthcoming which allow consulting archeologists to thoroughly investigate site features uncovered by removal-related activities. During a recent prehistoric cemetery relocation in the Nashville area, the Tennessee Division of Archaeology provided staff personnel to investigate structures and other features uncovered during the search for graves. However, the Division cannot guarantee that personnel will be available for other cemetery removals. Solutions to this consequence of the removal process need to be proposed and implemented in the near future to stop this unfortunate loss of cultural information.

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"Archeological Vandalism in the Southeastern National Forests"

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