What do I do if I find human bones or an unmarked grave? First of all, don’t remove anything. Vandalizing a grave regardless of its age or ethnic identity is a felony.
If there are bones exposed you should leave them in place and report your find to the local or state police. They need to determine if there is evidence of criminal action—either a modern homicide or vandalism to graves.
If you know of graves that are being dug up, or gravestones, cemetery fences, etc., that are being damaged, contact your local law enforcement agency or Commonwealth’s Attorney to report possible vandalism to a cemetery.
If you can recognize unmarked graves as an old cemetery or Native American burial, but it is not being vandalized, you don’t have to report it to anyone. The Department of Historic Resources (DHR) does maintain information on old cemeteries, so if you wish to make sure that someone knows about the site, obtain a form from the department, complete the information, and submit it with the location clearly marked on a USGS quad map. Or you can call your nearest DHR regional office and ask for assistance.
Someone else now owns the land where my ancestors are buried. What are my rights regarding that cemetery? Unless the deed of sale for the property specifies certain conditions of the sale, then most rights go to the new property owner. Virginia law requires a property owner to make a reasonable good-faith effort to notify descendants of people buried in an abandoned family cemetery when seeking a court order to remove the graves.
I have an old abandoned cemetery on my property. What are my legal rights and obligations?
Do I have to maintain the cemetery or let family members come on my land?
Existing statutes do not address the legal responsibility for cemetery maintenance; however, Virginia law protects the cemetery itself from malicious damage. Furthermore, the Code of Virginia
(§
57-27.1) requires, among other things, that, "Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members or descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research . . ." The Code does allow the property owner to designate "the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property."
A court order is required to remove the cemetery (graves, markers, fences, etc.) in order to use the land for any other purpose. The court order procedure requires a public legal notice and reasonable effort to notify descendants if known.
The law also allows an adjacent property owner to sue you if a cemetery is so poorly maintained that it threatens the value of the neighboring property. The court can then require you to allow someone else to maintain the cemetery.
Whose responsibility is it to take care of old cemeteries? Virginia statutes protect from disturbance all cemeteries, burial grounds, and human remains deposited in burial places. However, existing statutes do not address the legal responsibility for cemetery maintenance. In common practice, active cemeteries are maintained by property owners. In the case of private, family cemeteries, maintenance is often conducted by family descendants. Abandoned cemeteries often go unkempt. Before undertaking any cemetery maintenance activity, permission must be obtained from the current property owner and local government attorneys should be contacted to learn of any local requirements or regulations regarding cemetery treatment. Property ownership is recorded in real estate records available at local planning departments and at the local circuit court clerk’s offices.
What are the legal means for removing and relocating human remains from cemeteries and burial places? In the Commonwealth of Virginia, human remains can be legally removed from a cemetery or burial place and relocated by obtaining a court order or through a permit procedure administered by the Department of Historic Resources.
Who is responsible for getting the court order or permit? Removing a burial or cemetery is ultimately the responsibility of the person(s) or agency that owns the land and proposes to use the land in a different way. For example, if a developer buys farmland containing a cemetery and wishes to build on the cemetery plot, that person will be responsible for getting the appropriate authorizations, contracting for either a funeral director or archaeologist to conduct the removal, and paying for it. If a homeowner finds burials while building an addition or digging in a garden, then the homeowner is responsible for getting permissions, etc. The costs of removing of human burials are the responsibility of the person or entity requesting the action.
What are "archaeological permits" for removing human burials? Permits for the removal of human burials are required of any person or entity that conducts any type of archaeological removal of human remains, including archaeological investigations conducted as part of a court-approved removal of a cemetery. Persons or entities requesting such removal of human burials from a historic cemetery must obtain a permit for the archaeological removal of human burials. Click here for a Permit Application for Archaeological Removal of Human Burials.
Who should I call…
…. if I find a burial or cemetery on my land?
If you find an unmarked grave, you may want to contact your local law enforcement agency officials and report the find. Law enforcement officials will determine whether or not the burial is the result of a crime. If not, you can simply leave the grave in place, or get a court order to relocate it.
…if I know of graves that are being dug up, or grave stones, cemetery fences, etc. that are being damaged? Contact your local law enforcement agency or Commonwealth’s Attorney to report possible vandalism to a cemetery.
…to find out about local regulations regarding human burials and cemeteries? Contact the local government attorney’s office.
…to find out about permits for conducting archaeology on human burials? Contact the Virginia Department of Historic Resources to obtain an application for the archaeological removal of human burials.
Where can I get a copy of the laws? Information regarding the Code of Virginia , as well as local regulations, can be obtained by contacting your local government or visiting your local library. DHR's index to the Code of Virginia will link you to specific sections of it online.
What can I do to help preserve old graveyards and isolated graves? Report possible vandalism or disturbance of cemeteries to your local law enforcement agency and Commonwealth’s Attorney office.
Preservation of historic cemeteries and burial places in their original place and form is the preferred treatment option. Include the sensitive treatment of cemeteries and their preservation in place when formulating plans for property use or development.
Good cemetery maintenance strategies address issues of long-term care. Temporary solutions will only postpone a recurring problem and may inadvertently cause additional problems. DHR advocates innovative strategies for the long-term maintenance of historic cemeteries that are compatible with the cemetery’s traditional form. These strategies should address procedures for physical maintenance and the financial commitment to support maintenance activity.
How can DHR help? DHR staff can provide broad-based technical assistance regarding the preservation of historic cemeteries. This assistance includes recommended options for the treatment and preservation of cemeteries, and information regarding the historic context and traditional form of regional historic cemeteries.
While the preferred treatment of cemeteries and burial places is preservation in place, there are specific instances when removal is considered to be in the public interest. In these cases, DHR can provide recommended procedures for the sensitive removal of human burials, as well as a list of archaeological consultants available for this purpose.
What about Native American graves? Virginia laws protect all cemeteries and gravesites equally. The same laws prohibiting malicious damage and removal of a body from a grave without proper authorization apply to Native American graves in the same way that they apply to modern cemeteries, family cemeteries, and other unmarked graves. Digging up a Native American grave to collect relics is illegal—as is grave robbing in any form.
The primary difference with Native American graves is that locating direct descendants for specific gravesites is generally not possible. For that reason, the official contacts for dealing with Native American graves include the Virginia Council on Indians, the eight tribes recognized officially by the Commonwealth of Virginia (Chickahominy, Eastern Chickahominy, Mattaponi, Monacan, Nansemond, Pamunkey, Rappahanock, and Upper Mattaponi), and, in some cases, tribes recognized by other states or the federal government.
When is a cemetery a historic property? DHR considers cemeteries or burial places as historic if they meet, or are likely to meet, the criteria for inclusion in the National Register of Historic Places. While cemeteries are not generally eligible for the National Register, as archaeological sites, burials may meet the criteria by yielding information important to our understanding of history or prehistory. The National Park Service provides a discussion of these issues in the publications entitled Guidelines for Evaluating and Registering Historical Archaeological Site and Districts (1993) and Guidelines for Evaluating and Registering Cemeteries and Burial Places (1992).
What questions should I be prepared to answer to receive the most helpful and accurate guidance from DHR staff? Where is the property located? (Cite the county or city, or approximate the location using route numbers so that staff can use a topo map to find out whether it is previously recorded or simply to determine where it is.)
What type of development is going on? Subdivision? Road? Office park? What is the name of the subdivision? Frequently that type of information is on a big sign promoting the project. This information is useful when staff searches its database of projects that have undergone review.
What evidence is there of a cemetery or burial? This is very important because there are different courses of action depending upon your response. Are there markers? Depressions? Is there bone? How much bone? The more information here the better.
What is in the vicinity of the cemetery? Is the cemetery associated with any structures? known association with any church, religious group, farm, town, or ethnic group?
Under what program are funds available to care for the graves of Confederate veterans? Section 10.1-2211 of the Code of Virginia describes the disbursement of Confederate memorial funds through the Department of Historic Resources.
What organizations can get the funds? Only the organizations listed in Section 10.1-2211 of the Code of Virginia are eligible to receive annual appropriations for Confederate grave care.
How can I add my organization to the list to get funds for grave care? Adding an organization to the list in Section 10.1-2211 of the Code of Virginia requires the assistance of a member of the General Assembly. A member of the legislature would have to introduce a bill adding an organization to the list in Section 10.1-2211 at a session of the General Assembly.
How much money is available for the grave care program? Currently, annual appropriations for grave care are set at $5 per grave. An organization providing care for 10 graves would be eligible for an annual appropriation of $50. Larger cemeteries generally receive less than $5 per grave.
Section 10.1-2211 also provides for larger, one-time appropriations for "extraordinary maintenance, renovation, repair, or reconstruction" in cemeteries cared for by the organizations on the list. These larger and one-time appropriations are appropriated only when a legislator at a session of the General Assembly introduces a budget amendment to make funds available.
Do these awards require a matching share? No. Neither the annual appropriations for grave care nor the special one-time appropriations for Confederate cemetery projects require a matching share.
How are the funds released? The annual funds become available each July 1. For several years, the Department of Historic Resources has had an agreement with the Virginia Division, United Daughters of the Confederacy (UDC) to administer the funds. Before funds are released, the UDC sends a notice to all organizations receiving funds asking that they report on the expenditure of the funds received in the previous year. Upon receipt of the report, the UDC sends out the annual payment.
Before a new organization receives its first annual payment, the UDC asks for a list of the Confederate graves for which the organization provides care.
Larger, one-time appropriations are released upon request, following DHR review of the project.
For what kinds of work can the funds be used? Section 10.1-2211 describes eligible work as "routine maintenance of cemeteries and graves" and "erecting and caring for markers, memorials, and monuments." Generally, annual appropriations are used for cutting grass in the cemeteries, trimming shrubbery or trees, re-setting stones, repairing fences, placing markers, etc.