Linda:  This is probably more of a response than you wanted regarding the=
 
variable treatment of cemeteries as archeological sites.  If you want a c=
opy
of the entire paper, send me your snail mail address.
 
chuck
 
DEAD MEN DO TELL TALES: COMMENTS ON THE TREATMENT OF HISTORIC CEMETERIES =
AS
ARCHEOLOGICAL SITES
by
 
Charles M. Niquette and   Nancy Ross-Stallings =
 
January 1995
 
Abstract
 
This paper explores the concept of treating historic cemeteries as
archeological sites, a novel approach that has yet to be realized within =
the
state of Kentucky.  The authors examine the issue on an interstate basis =
by
polling SHPO and particularly transportation workers in surrounding state=
s
and by reviewing the existing literature on the subject.  The paper concl=
udes
with recommendations for the development of a policy for the treatment of=
 
human remains, the creation of an Advisory Committee for the Treatment of=
 
Human Remains and for the level of documentation required for phase one, =
two
and three investigations completed under the purview of Section 106 studi=
es.
 
 
 Introduction =
 
 
Within the last twelve months, many archeological contractors working wit=
hin
the borders of the Commonwealth have experienced a growing concern, expre=
ssed
by the SHPO=92s review letters,  for the treatment of historic cemeteries=
 as
archeological sites.  This concern has been met with some resistence from=
 
some agencies and  has placed many contractors squarely in the middle of =
an
interagency power struggle.  Where there is great resistence to the conce=
pt
of cemeteries as archeological sites, there is little common ground from
which to propose a solution that meets the conflicting needs and/or
philosophies represented.  The purpose of this paper is to explore the is=
sue
by looking at what other states have accomplished in this arena and by
summarizing historic cemetery research that has already been completed.  =
The
final section embraces a recommended procedure to be followed for the
treatment of human remains.   It also contains recommendations regarding =
the
level of documentation that should be expected for historic cemeteries at=
 the
phase one, two and three levels.  It includes recommendations for the
creation of an Advisory Committee for the Treatment of Human Remains, a
committee whose membership should have review and approval power over all=
 
cemetery studies (historic and prehistoric) that involve archeological
recovery of human remains.
 
At the outset it should be stated that we believe that cemeteries are
spiritual, holy places.  As such, they should be avoided by earth-moving
projects whenever possible.  Nevertheless, it is not possible to avoid
cemeteries by construction activities in some instances, and in other cas=
es
the cost of avoidance is neither prudent nor feasible.   When it is not
possible to avoid impacts to a cemetery, these sites should be recognized=
 as
legitimate subjects of scientific study that are frequently eligible for
inclusion in the National Register of Historic Places, especially for the=
ir
scientific content pursuant to criterion =93d=94 of the National Register=
 
criteria.  Due to the sensitive nature of cemeteries, paramount authority=
 
that should be given to the wishes of the next of kin to the deceased. =
 
 
 
Treatment of Historic Cemeteries in States Other than Kentucky
 
In an effort to determine how other states have dealt with historic
cemeteries, a telephone survey was conducted.  Those contacted included t=
he
Section 106 review personnel and some DOT representatives in the southeas=
tern
states (including Texas) and all states that have borders in common with
Kentucky.  In addition, the sample included a few other states, whose ter=
rain
could be characterized mountainous, and that are experiencing development=
 and
population pressures: Arizona, Connecticut, Colorado, and California.   T=
he
purpose of this exercise was simply to determine how other states handled=
 
historic cemeteries that were threatened by construction and development
activities, and in the course of doing so perhaps to gain some insight in=
to
how to improve the current approach used in Kentucky.
 
In all states contacted, cemetery relocation was regarded as a method of =
last
resort, only to be exercised if there was no reasonable way to relocate t=
he
road or other structure.  The most extreme case of cemetery avoidance was=
 
noted for Connecticut.  No construction project in Connecticut has ever
resulted in the relocation of an historic cemetery.   Nevertheless, in so=
me
cases the Connecticut  DOT spends very large sums of money to reroute new=
 
construction around cemeteries.  This extreme approach is not limited to
transportation projects.  For example, one company that was building a
pipeline discovered a family cemetery in the right-of-way for the project=
=2E
 In this instance, they used a ground penetrating radar to locate the gra=
ve
shafts.  Since bedrock occurred at a shallow depth, the bedrock was drill=
ed
below the cemetery and the pipeline was installed through the bedrock.  A=
fter
the perimeter of the cemetery was breached, the pipe was once again burie=
d at
a normal depth below ground surface.
 
In Colorado, no old cemeteries have been impacted by a DOT project.  We d=
id
learn that one mountain highway was moved over slightly to avoid one, and=
 the
cutbank adjacent to the cemetery was heavily reinforced by the DOT so tha=
t no
coffins would erode out of the cutbank.  In other instances, the highways=
 
have been narrowed to avoid cemeteries or they have been rerouted around =
the
cemetery, in some cases, at considerable expense.  In 1992, an unmarked,
unknown graveyard was discovered on the grounds of the Colorado Mental He=
alth
Institute in Pueblo during preconstruction work for a new building.  Over=
 130
bodies, dating from 1880-1900, were hand excavated.  Paleopathological
analysis is being conducted on the skeletons.  Many are of historical and=
 
medical interest, since some represent examples of a variety of malformat=
ion
syndromes and victims of mental retardation.  =
 
 
Projects in Arizona are done on a case by case basis.  Since 1990, Arizon=
a
has had a state law that protects burials on private land.  Avoidance of
cemeteries is considered the best option.  Prior to 1970, a Mormon Cemete=
ry
(1870-1900)  began eroding out of a road cut and the DOT erected a strong=
 
retaining wall.  At that time, the cemetery was not considered in terms o=
f
the National Register criteria.  If this happened now, it would have been=
 
recommended for treatment as an archeological site under the new law.  A
pioneer cemetery in downtown Phoenix was tested and it was determined tha=
t no
grave shafts were located outside of the cemetery fence.  The adjacent ar=
ea
was subsequently cleared for construction.
 
Two other Arizona  cemeteries were threatened by DOT projects in the rece=
nt
past.  Both were located on Native American land, and so the Native Ameri=
can
communities were dealt with directly.  In the first case, the cemetery ha=
d
Pima and Maricopa interments.  These groups wanted the paleopathology and=
 
historic documentation done.  The preservation was so good that newspaper=
s
and fabric were intact.  The groups wanted to see if the osteologists cou=
ld
determine which were Maricopa and which were Pima.  This was not possible=
 to
do from an osteological standpoint.  =
 
 
The second cemetery was also a Pima cemetery, but it was controlled by a
different group of Pima.  The latter wanted the interments relocated but =
not
scientifically examined.  These agreements were each worked out with the
interested Native American group and carried out according to their wishe=
s.
 
Four of the states, California, Georgia, Indiana, and Ohio have not yet h=
ad
to move cemeteries;  however, historical documentation and hand excavatio=
n by
archaeologists would be required in the event that a DOT project threaten=
ed a
historic cemetery and if that grave yard could not be avoided.
 Paleopathology would be required on the human remains recovered from suc=
h
projects in all of these states. Indiana and Ohio would develop the
excavation strategy on a case by case basis.  Indiana has good laws
protecting graves and cemeteries.  However, Ohio has an old law which has=
 
been on the books for a century. =
 
 
The state law of Ohio suggests  that if an interment is over 125 years ol=
d,
it is not "human."  If the body is still in a corpse state (flesh on) it =
is
considered a human interment.  If the interment is just skeletal, the
authorities cannot prosecute  someone for digging it up.  The basic idea =
is
that the remains must look "human enough" for the average man on the stre=
et
to recognize it as a human body.  Efforts have been made on the part of t=
he
Ohio SHPO and various Native American groups in the state to amend the la=
w.
 However, since township trustees and coroners have jurisdiction over
cemeteries, they have, as a group successfully lobbied the Ohio legislatu=
re
to leave the law as it is, maintaining that if it was changed, they would=
 
have more work to do than they could handle.
 
California and Georgia have formal protocols in place that outline in det=
ail
the requirements for research proposals, and the archaeological investiga=
tion
and research that would be done with the remains.  California had a near =
miss
recently when a road was to be widened and improved.  Historical research=
 
indicated that a family cemetery had at one time stood in the roadway.
 However, intensive investigation determined that all of the graves had
apparently been destroyed by the construction of the original road.  This=
 is
the closest the California protocol came to being used for a DOT project =
to
date.
 
Alabama, Louisiana, Tennessee, Florida, Virginia and Texas have had insta=
nces
where cemeteries needed to be relocated.  In all of these states,
archaeological hand excavation is required, at least in some cases.  =
 
 
In Texas, if the last interment is 50-75 years or older, then archaeologi=
cal
excavation is required, with paleopathological investigation.  If the
cemetery is a modern, platted, dedicated cemetery, morticians become invo=
lved
in grave relocation.  While multiple instances of cemetery relocation for=
 
road projects have occurred in Texas, the most extensive cemetery relocat=
ion
project to date is in its final phases of completion.  This is the Lemmon=
 
Avenue-North Central Expressway grave removal in Dallas.  Over the past 4=
 1/2
years, 1500 black interments from an old freedman's cemetery just to the
north of downtown Dallas have been hand excavated by archaeologists and t=
hen
relocated.  Paleopathology, and historic documentation has been done on a=
ll
of the interments.  In addition, the black community allowed archaeologis=
ts
to curate samples of cloth fragments, buttons and other items of interest=
,
with the exception of rings, other personal jewelry or items such as
rosaries.  These remained with the deceased at reinterment.  The report w=
ill
be published in about another year.  This project cost nearly $6 million =
over
and above road construction costs.
 
It was noted that the state cemetery code in Texas is an antiquated docum=
ent.
 Every two years, efforts are made in the state legislature to change it,=
 but
every time, lobbyists for perpetual care cemeteries fight the proposed
changes because they don't want legislators or other people telling them =
what
they can and cannot do.  Recently, the state cemetery code, unaltered, wa=
s
moved into the Texas Health and Safety Code, as the result of a surprise =
move
in the legislature that took place in a midnight session.  No one was
notified that this was going to happen.
 
In Virginia, hand excavation by archaeologists is required if the cemeter=
y is
deemed historically significant.  The Virginia burial laws allow two opti=
ons.
 (1) If the cemetery is found by the SHPO to have historical interest, an=
 
archaeological permit is needed, and the development of a research design=
 is
required, as with any other mitigation. (2) If the cemetery is not found =
to
be historically significant, then the graves are relocated by funeral
directors.  It was noted that in Virginia, highway construction has not
impacted as many of the historic cemeteries as subdivision construction. =
 In
the last five years, nineteen burial permits for excavation of a cemetery=
 
have been granted, and most of these were for subdivisions.
 
In Tennessee, the burial statute does not discriminate between prehistori=
c
and historic cemeteries, and cemeteries are considered as archaeological
sites.  Currently, a DOT project is impacting a small family cemetery, wi=
th a
half dozen interments.  The cemetery is being hand excavated, after a bac=
khoe
stripped all the topsoil off, exposing the grave shafts.  The determinati=
on
to do paleopathology is done on a case by case basis for each cemetery.  =
The
remains can be held out of the ground for up to six months for scientific=
 
analysis, before reinterment.
 
Florida has strong statutes for protection of historic and prehistoric gr=
ave
sites.  If graves are going to be impacted, hand excavation is required. =
 In
one case of road widening in an urban area, ground penetrating radar was =
used
to make sure that no interments were outside of a modern fence surroundin=
g an
old cemetery.  No grave shafts were found outside the fence, and the road=
 was
widened.  In a second case, an old military cemetery in Ft. Myers, Florid=
a
which had Civil War era and possibly Seminole War dead in it was being
impacted by a DOT project.  Extensive testing was done on this cemetery, =
as
well.
 
In Alabama, there is a complex permitting process that has to be conducte=
d
before a cemetery can be moved.  There are a dozen public health laws tha=
t
have to be satisfied before the project can begin.  =
 
 
Recently, a DOT project in northern Alabama was impacting an unmarked Afr=
ican
American cemetery which may have had some Russian immigrants interred in =
it
as well.  The estimated number of graves is 200.  The DOT contracted with=
 an
archaeological firm to write a scope of work for hand excavation, 100%
recovery of artifacts, screening of dirt, and osteological analysis.
 Currently, this project is still being examined by the DOT personnel.
 
The Elko Switch Cemetery (circa 1850-1920), a black cemetery near Huntsvi=
lle,
Alabama was partially impacted by the construction of a highway interchan=
ge
in 1987-88.  This cemetery was hand excavated, with historic artifact
analysis and paleopathology done on the remains.  Historic and archival
research was also conducted in connection with the cemetery.  =
 
 
In Louisiana, an unmarked burial law was passed in January of 1993.   If =
a
cemetery of any type can't be avoided, Louisiana requires archaeological =
data
recovery.  =
 
 
Examples of some past Louisiana projects include a Corps of Engineers (CO=
E)
project which would have impacted an unmarked cemetery.  The COE opted to=
 
relocate their project around the cemetery.  At the Terre Bonn Cemetery i=
n
Shreveport, the DOT delineated the cemetery boundaries and conducted test=
ing
to see if there were graves in the project boundaries.  None were found. =
 The
most extensive cemetery excavation in Louisiana to date has been the Char=
ity
Hospital/Cypress Grove II cemetery project that was begun in 1986.  The
widening and resurfacing of Canal Street in New Orleans necessitated the
project be done.  The interments covered the time span of 1849-1929.  Whi=
le
the artifacts were analyzed by the University of New Orleans, the skeleta=
l
remains were taken to the Division of Physical Anthropology at the
Smithsonian Institution.  While most coffins held only one person, some h=
eld
up to 10 people.  The total number of excavated remains was 271 individua=
ls.
 =
 
 
The DOT in Arkansas has thus far been able to reroute road projects to go=
 
around cemeteries.  County judges have jurisdiction for small family
cemeteries.  The decision to require excavation of an historic cemetery i=
s
made on a case by case basis.  Arkansas has an unmarked graves law, but i=
t is
designed primarily for prehistoric cemeteries.  It could be stretched to
cover pauper graveyards, since these tend to have no identifying markers.=
 
 The most significant archaeological excavation of an historic cemetery t=
o
date in Arkansas is the Cedar Grove Cemetery in Lafayette County, which w=
as a
Corps of Engineers Project.  A total of 79 interments from this historic
black cemetery were being threatened by the revetment construction along =
the
south bank of the Red River in 1982.  Each grave was hand excavated and t=
he
artifact and skeletal data were recorded before reinterment.  The interme=
nts
all dated from 1890-1927.
 
North Carolina has not had a DOT project impact a historic cemetery to da=
te.
 The DOT has been able to reroute the roads.  Currently the North Carolin=
a
SHPO is attempting to record all the abandoned cemeteries in the state so=
 
people will know where these cemeteries are.  In addition, all cemeteries=
 
which have had a last interment for at least 15 years or longer are
considered archaeological sites and should be recorded.  One of the main
criteria for considering if a cemetery should be excavated would be if a
cemetery could be considered National Register eligible.  In the 1981
unmarked human skeletal remains act, it is the State Archaeologist who is=
 
charged with defining what constitutes an "unmarked grave," as noted in t=
he
act. The SHPO has asked the DOT to develop research protocols for histori=
c
Scots-Irish cemeteries.  To date, this protocol is not complete.
 
The state of South Carolina does not have a burial law.  The DOT has trie=
d
very hard to stay out of both historic and prehistoric cemeteries.  The u=
sual
procedure is not to do data recovery if a cemetery is impacted, but the
decision is made on a case by case basis.  However in the case of one roa=
d
project, a cemetery was in the corridor, and it was believed to be a blac=
k
cemetery.  Limited data recovery was done in the cemetery, and it was fou=
nd
instead to contain whites.  None of the skeletal material was sent to the=
 lab
for extensive analysis.  The Piedmont has very bad bone preservation, and=
 the
Coastal Plain tends to have very good preservation.  The geographic locat=
ion
of an impacted cemetery would also have an influence on decisions made ab=
out
it.  Currently, there is tremendous public interest in preserving family
cemeteries in South Carolina, and two state representatives are working o=
n
draft legislation.  There may be some formal protocols developed in the n=
ext
18 months or so. =
 
 
In West Virginia, the decision to develop a research design and excavate =
an
historic cemetery is done on a case by case basis, and is done on the bas=
is
of National Register eligibility.  If the cemetery is determined to be no=
t
eligible, it is passed to the circuit court, which handles relocation by
funeral directors.  The West Virginia DOT encountered an unmarked early t=
o
middle 19th century black cemetery on a project about five years ago in t=
he
panhandle.   The press had a field day.  Cemeteries in project areas sinc=
e
then have had research protocols developed for them.  Near Weirton, West
Virginia, there were four interments identified and the SHPO and DOT
archaeologists were on site when they were hand excavated.  Notes were ma=
de
on the condition of the graves.  In Mingo County, a cemetery with a histo=
ry
of Chinese immigrants who had worked on railroad construction being inter=
red
in it was going to be impacted.  The SHPO recommended that archaeological=
 
monitoring be done, and the remainder of the protocol had not been develo=
ped
when the DOT decided to avoid the cemetery entirely.
 
The state of Mississippi has a strict burial law that protects prehistori=
c
and historic human interments, even if they are on private property.  The=
 law
was designed primarily to protect unmarked, prehistoric remains.  Unless =
a
burial permit is obtained from the SHPO, it is a criminal offense to exca=
vate
human remains.  But, modern cemeteries are not under the jurisdiction of =
the
SHPO.  If an old cemetery is going to be impacted by the DOT, but it is
marked, and the headstones have dates on them, its disposition is up to t=
he
county judge and the DOT.  The standard procedure is to locate the family=
=2E
 If the family is no longer around, the judge has final say on the
relocation.  The most difficulty to date with unknown small family cemete=
ries
has not been with highway corridors, but with borrow sites.  Generally, t=
he
damage, if any, is repaired as much as possible and fill is obtained from=
 
another site.
 
Missouri has one burial law for marked interments and one law for unmarke=
d
interments.  These laws drive the procedures that are used in the state f=
or
the disposition of marked and unmarked cemeteries.  If the cemetery is ma=
rked
by headstones, standard DOT procedure is to locate the family and then
contract with an undertaker to remove the graves.  This requires a court
order.  If the interments are unmarked, whether historic or prehistoric,
archaeological investigation is conducted on the remains.  The remains ma=
y be
retained for up to one year for scientific study before reinterment.
 
In the recent past, a road construction project impacted a pauper's cemet=
ery
in St. Louis.  The title to the property was at one point owned by the Ci=
ty
of St. Louis.  There was no known living family member for any of the
interments. The cemetery became the focal point of a lawsuit between the =
DOT
and the SHPO.  The DOT is currently working with the SHPO to do minimal
osteological study of the remains. =
 
 
The construction of a metro link caused the need to relocate a large
established cemetery in the St. Louis area.  Archaeologists were also cal=
led
in to assist in the excavation of this cemetery.
 
Currently, a runway approach at the Lambert-St. Louis International Airpo=
rt
is encroaching on an established cemetery that is eligible for listing on=
 the
National Register.  A Memorandum of Agreement between the Federal Aviatio=
n
Administration, the State of Missouri and the Federal Advisory Council on=
 
Historic Preservation has been established.  Approximately 3000 interment=
s
will be excavated using archaeological techniques and then submitted for
osteological analysis over the next three years.      =
 
 
In summary, the approaches taken in the nineteen states that were contact=
ed
vary to a great extent.  This is based on the fact that state laws in pla=
ce
before the Section 106 legislation was enacted were unique to a region or=
 to
the political situation in each state.  Once the federal legislation was
passed, the states have responded according to the construction and
development pressures unique to a given state.  The influence of special
interests ranging from funeral directors, coroners, judges, county
commissioners, township trustees, historic preservationists, and organize=
d
ethnic groups have also made a mark on legislation which has been passed =
or
has been blocked.  The trend, however, appears to be moving in the direct=
ion
of having at least some cemeteries which will be impacted by construction=
 
excavated utilizing archaeological techniques and the remains and associa=
ted
artifacts examined by historical archaeologists and osteologists.
 
 
Important Information Derived from Cemetery Studies...