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From Dave Snyder of the Ohio History Connection
David Snyder, Ph.D. | Archaeology Reviews Manager, State Historic Preservation Office
Ohio History Connection | 800 E. 17th Ave. Columbus, Ohio 43211
p. 614.298.2000 | f. 614.298.2037 | dsnyder@ohiohistory.org
January 21, 2016 10:10 AM
"From my understanding of how to apply Ohio
laws to protect burials I have found that both 25 years and 125 years are
important numbers. That is, both of you
are correct.
There are different kinds
of protection provided for under state laws with different state agencies
having authority under different laws.
For a cemetery that is active there are specific requirements for
registration and maintenance.
The focal
point for these requirements is at Ohio Revised Code Chapter 4747 where
responsibility is assigned to the Ohio State Department of Commerce, Division
of Real Estate and Professional Licenses.
The Ohio Cemetery Law Task Force recommended a number of changes that I
believe take a constructive step to strengthen the Division’s authority to
ensure appropriate care of graves in active cemeteries (including markers of
veterans graves).
There is much more to do in Ohio to protect graves in active cemeteries, but from where I sit, I see this as a positive step forward.
There is much more to do in Ohio to protect graves in active cemeteries, but from where I sit, I see this as a positive step forward.
Protecting graves in cemeteries that are not active is quite
a different matter. As you have noted in
your blogs there is very much for Ohio to do to make sure that graves in
abandoned cemeteries are protected.
Cemetery registration requirements convey the standard that after 25
years without an interment a cemetery is to be considered abandoned.
And in addition, there are many unmarked graves in Ohio, and
most of these are places where American Indians were buried. And here is where the law in Ohio brings in
the 125 year standard. Attached is a pdf
of one of the court cases that upheld and strengthened this 125 year
standard. Although the 125 year standard
applies to almost all unmarked American Indian burials, it also applies to all graves
that are older than 125 years, even in active cemeteries. The cemetery registration requirements
provide for some protection of cemeteries and their markers, but do not provide
much protection for the remains of the deceased.
Most people find grave robbing and grave desecration
deplorable and repulsive. Ohio’s law
basically states that you have to be able to recognize the remains as the
deceased in order to apply the laws prohibiting grave desecration. That is, the laws protect the corpse of a recent
burial, but after some time, when the corpse is no longer recognizable it is no
longer a corpse and cannot be protected under Ohio laws. Don’t get me wrong, I want to see the laws
strengthened to better protect human remains and prevent the abuse of a corpse,
but I also want to extend the laws in Ohio to protect human remains regardless
of whether the remains can be defined under law as a corpse.
So, Ohio law does not protect American Indian burials – they
are not corpses as defined under Ohio law, and
they are not in marked graves in active or abandoned cemeteries as
defined under Ohio law. Ohio law
prohibits trespass and vandalism – thus it isn’t a violation of the law to dig
up American Indian burials, but it might be a minor violation if you trespass
on property where you didn’t have permission to go and you vandalize a place
where you didn’t have permission to dig.
In the latter 19th century the Ohio courts were asked to define and
clarify when a recent burial had so decomposed that it was no longer a corpse,
and the courts came back with the 125 year standard. But the problem is not just that this leaves
graves of American Indians without protection, now this applies to graves of
many, almost all, veterans of the Civil War.
It is now OK under Ohio law to dig up graves of Civil War veterans to
take buttons and such as long as you don’t trespass or vandalize. Putting all of this together, this is why so
many of us are very much concerned by the 125 year standard and are working to
get this changed and fixed. But that
doesn’t mean that we aren’t also concerned about caring for abandoned
cemeteries and the problems that the 25 year standard brings to these issues.
I hope this is helpful in answering your question.
I very much appreciate your blogs and your advocacy for the
protection of cemeteries."
