The Funeral Law Blog

Disinterment for Driveway? Error Pits Cemetery Against Family

In 2014, Shirley Sisco was buried at Pretty Prairie United Methodist Cemetery in Howe, Indiana. Now, the cemetery wants Sisco’s family to relocate her remains by November 1, 2016, the second anniversary of her death.

The reason? A proposed driveway.

According to the cemetery, “Sisco was buried in the wrong location, and . . . the grave and resting place are currently in the way of a planned driveway.” Understandably, Sisco’s family is none too pleased. They have hired an attorney and argue that rather than disinter and relocate Shirley’s remains—which would have the effect of separating her from other family members—the cemetery should change the path of the proposed driveway.

However, whether the cemetery can compel the Sisco family to disinter and relocate Shirley’s remains turns on the interaction between Indiana law and the rules and regulations of Pretty Prairie United Methodist Cemetery.

The local media covering the feud emphasizes that “Indiana law . . . gives a bit more leeway to religious organizations operating cemeteries.” That is true. In fact, Ind. Code Ann. § 23-14-33-3 expressly exempts cemeteries associated with religious and fraternal organizations from many of the requirements that otherwise govern cemeteries in the state. That includes § 23-14-57, which generally requires a member of the decedent’s family to consent to disinterment.

Nevertheless, the Siscos may still prevail. How? Well, religiously affiliated cemeteries enjoy the aforementioned exemption only so far as their rules and regulations conflict with Indiana law. Thus, if Pretty Prairie’s rules are silent as to disinterment, Shirley may only be relocated with her family’s consent. Unfortunately, further analysis is impossible given that the cemetery’s rules are not publicly available. Regardless, now that attorneys are involved, it likely that Shirley’s remains will remain in their present location well beyond the second anniversary of her death.

Mickey Herman

Funeral Homes Saves Your DNA

When I think of the purpose of a Funeral Home, I think of a business that aids one in the process of celebrating the life of a loved one and ultimately disposing of the remains in the desired way. But what if I told you that one Funeral Home is giving you one last chance to preserve the deceased's DNA? That is what one Funeral Home in Santa Barbra is aiming to do. For the low price of about three-hundred dollars, scientist will preserve the deceased's DNA indefinitely, opening up a number of doors for the field of genetics. 

Not only is this option of saving DNA significantly cheaper than the traditional cryogenic options, it is also super simple. All the scientist's at Lakehead University in Canada require the funeral home to  do is take a gentle cheek swab and send it off to the lab for processing and storage. This easy procedure can contribute to discovery of things such as genetic mutations, links to genetic diseases, and ultimately information that can help lead to prevention of these inherited illnesses. It may also lead to the discovery of paternity and assistance in mass-casualty disasters. Not only are they beneficial in this way, but the sample can be tested multiple times, making the idea of it even more appealing. 

Discovering the above things is not the only draw of the practice. Scientist's also say that the family of the deceased receives a beautiful glass vial of the DNA accompanied by a degree of authenticity, both incentives to participate in the practice. They can even have it made into jewelry if they so choose. So if preserving your loved one's DNA when they passover seems beneficial to you, keep an eye out for this expanding market. 

Alston Merritt

http://www.independent.com/news/2016/oct/26/funeral-home-saves-your-dna/

Historic Grave Markers Do Not Make Good Lawn Decorations

According to Lew Keen of the Newport Historic Cemetery Advisory Commission, theft of historic grave markers for use as patio stones and well covers, among other things, is a chronic issue. In October, five long-missing historic gravestones were finally returned to the Colonial-era cemetery Common Burying Ground in Newport, Rhode Island.

Under Rhode Island law, it is a felony to steal a gravestone, and consequences can include prison for up to three years, a fine of up to $5,000, and paying the cost to repair the grave. R.I. Gen. Laws § 11-20-2 (“Every person who shall willfully and maliciously . . . remove any . . . gravestone . . . shall be guilty of a felony and shall be imprisoned not less than one year and not exceeding three (3) years, and/or be fined no more than five thousand dollars ($5,000), or both and shall, in addition to imprisonment and/or fine, be ordered to make full restitution to any person, business or entity incurring the expense of repairing the grave.”).

Four stones were from 1835 and earlier, marking the graves of a Newport woman, Elizabeth Cook (1835), and her children Betsy (1799), Isaac (1803), and Edward (1804). The Cook family stones were last seen at Common Burying Ground in 1874. The four gravestones were found in a yard during a home renovation in the 1980s. The homeowners stored the gravestones in the basement until they moved. Pam Kelly discovered the stones when she purchased the home from the previous owners. 

The oldest stone returned in October was for a 1-year-old child, William Mayes III, who died in 1690. This stone was found in August also in a yard by Stephanie Pallas in Pennsylvania. Pallas was landscaping, came across a flat stone in her yard, and realized it was a gravestone that belonged in Rhode Island. The stone had been missing from Common Burying Ground since 1979.

A struggle with returning a gravestone all the way from Pennsylvania to Newport was the cost and reliability of transportation methods. Gravestones are not light; Elizabeth Cook's stone weighed about 450 pounds. Hiring someone to deliver Mayes' stone would cost $1000. Shipping via FedEx was only $100, but the Keen was not convinced the stone would be safe. Had the original thief been arrested and convicted, that person would have been responsible for the cost of transportation. Luckily, Bob Butler, a member of the Rhode Island Historical Cemetery Commission came to the rescue, agreeing to pick up the stone and return it to Newport safely in a pre-planned trip. 

All five stones have been reset in their proper places in Common Burying Ground. Students in a historical cemetery preservation class volunteered to reset the Cook family stones, using a crane due to their weight.

Sarah Saint

Proposed Muslim Funeral Home Pits County Officials Against Establishment Clause

No ground has yet been broken, but a Muslim funeral home in Georgia is already facing vocal opposition. The facility—which would be the first of its kind in the state—is part of a multi-stage development recently announced by Al Maad Al Islami, a nonprofit corporation led by Imam Mohammad Islam. The funeral home and an accompanying cemetery constitute the first stage, set to be built along Highway 162 in Newton County, located southeast of Atlanta. According to Islam, the second stage of the project would include building a mosque on the site. Depending on the availability of additional funding, a school and public park may round out the project.

Though surely applauded by many, the plan is also facing considerable opposition. Newton County Commissioner John Douglas has expressed his reservations about the project, claiming that “[a]ll the emails [he’s] gotten . . . have been negative for various and sundry reasons.” Among them – a concern that the funeral home, cemetery, and mosque might prompt federal authorities to begin settling refugees in the area.

Douglas’ qualms, however representative and loudly voiced, will prove impotent against both local and federal laws that protect religious organizations, including cemeteries, from discrimination. According to the Newton County Zoning Administrator, both churches and cemeteries are permitted uses on the property in question.

More importantly, as at least one county official has noted, “federal law prohibits [government] from imposing regulations on one religious development and not others.” In fact, in both Larson v. Valente and Board of Education of Kiryas Joel Village School District v. Grumet, the Supreme Court emphasized that preferring one religion over another violates the Establishment Clause of the Constitution.

Therefore, because Newton County does not limit where houses of worship may be built, and because a Christian church already exists across the street from the planned development, any governmental action attempting to impede Al Maad Al Islami’s development will likely run afoul of the Establishment Clause.

Mickey Herman

No Man Left Behind

On Thursday, November 10, 2016 a funeral was held for a two Vietnam veterans with no living relatives. However, they were not laid to rest alone. The funerals for Clifford Ray Dudley and Marine Lance Cpl. Dennis Ray Ashley Corpus was held in Christi, Texas at the Coastal Bend State Veterans Cemetery. When no next of kin were found, the cemetery made a call to the public to attend the funerals. They posted on their Facebook page, “We do NOT leave Veterans behind.” About 400 people showed up to mourn the veterans.

Similarly, last Friday November 11, 2016, another funeral was held in Texas for a Navy veteran with no relatives. Richard Lee Anderson served in the navy from 1996 to 2002, and although funeral director Robert Falcon tried to find his family, it was to no avail. “At such a young age we thought that we would have no problem with trying to locate family and unfortunately it's just been very unsuccessful,” Falcon told Fox 7.

“If a veteran passes away at a VA hospital or veterans home, and no one claims him/her as a family member, the staff will work with the state or national cemeterys, to ensure that there is a plot or urn provided, and military funeral honors for that veteran… Funeral directors will also call the morgue, or vice versa, and they in turn will contact the nearest veterans cemetery, and ask them to check to see if that person was a veteran.”However, they are under no obligation to contact anyone to attend the funeral. Regardless, the tradition has been held for years.

This July about 200 people in New York went to pay their respects to a 91-year-old homeless veteran with no known relatives. One of the people in attendance highlighted the importance of the act “We are connected through our service and through our sacrifice. Look around now, she has 200 or so family members. As long as you’re a veteran you have friends and family everywhere and you’re never alone.”

Debora Flores Franco

Pour Momma down the drain

Some people think that a method that reduces a body to a greenish-brown liquid and bone fragments is a barbaric way to say our final goodbyes to a loved one. Alkaline hydrolysis is a chemical process that uses heat, lye, pressure, and circulation; the body is put inside a steel vessel with about 80 gallons of water that is heated up to 300 degrees. In a few short hours, most of the body dissolves into liquid and the remaining bone is ground into ash.

Does that sound any more gross than, let’s say, putting a body into a brick-lined oven and exposing it to intense heat and fire that can reach temperatures of almost 2,000 degrees Fahrenheit? Almost half of us choose cremation, which, to be blunt, is basically incineration. Then there is the option in which bodily fluids are removed and replaced with a formaldehyde-based chemical solution. Our loved one’s eyes are then glued shut, the jaw is sewn or wired shut, and the corpse is put on display (usually wearing more make-up than the person ever did in life). Instead of letting the departed body go off with its soul (if you believe that), embalming basically preserves the body until the coffin is placed underground. (Does anyone think about what happens to the body at that point? That is really gross.)

In contrast to these complicated and unnatural methods of disposition, alkaline hydrolysis, which is more palatably referred to as “green cremation” or “bio-cremation” accelerates the ordinary decay process. Short of just allowing a body to decay naturally, green cremation is the most environmentally-friendly process available. It reduces greenhouse emissions by using less electricity and gas than a traditional cremation and produces no airborne emission of mercury in contrast to cremation. So, for all of us who are so careful about reducing air pollution by recycling and driving a Prius, why not make one final green gesture? And, with a green cremation, your family can still scatter your ashen remains over one of your favorite stomping grounds or keep an urn on the fireplace mantle.

There are thirteen states in which green cremation is legal, including Minnesota, Florida, Oregon, Georgia, Illinois, and Maine. Minnesota was the first to approve its usage. In the early 2000s, the Mayo Clinic began using the process for disposing of the bodies that had been donated for medical research. Minnesota defines alkaline hydrolysis as a separate process for disposing of a human corpse in its statutes, but most states have simply broadened their definitions of cremation in the statutes to permit “other dissolution processes”. However, there is still limited usage of green cremation in these states in which it is legal.

The problem is marketing. Who wouldn’t want a method of final disposition that is simple, efficient, cost-effective, natural and good for the environment? That does sound a lot better than pouring momma down the drain.

Lisa Roach

Zoning Mistake at Heart of Crematory Controversy in Black Mountain, NC

Harwood Home for Funerals in Black Mountain, North Carolina has spent the past few months at the center of a controversy with some citizens of Black Mountain.  Harwood’s owner Rick Harwood wished to expand his business to offer cremation services.  To do so he planned to purchase an incineration machine and expand the footprint of his existing building to install it.  The controversy came about due to a zoning mistake that prohibited expansion of the building.  In 2010, Black Mountain rezoned Harwood’s location to central business district zoning which does not allow for a funeral home to be operated.  The director of planning and development said that while this zoning change made Harwood Home for Funerals a nonconforming use, it was likely due to a mistake of zoning. 

When Mr. Harwood applied to the planning board for a rezoning of his property so he could be in compliance with the zoning laws and expand his building, he made it known that he wished to offer cremation and that he would be installing an incineration machine.  He believes that cremation may be the chosen option for as many as 75% of his customers by 2030.  Some citizens of Black Mountain heard of this change and are worried about harmful fumes and bad odors being emitted from the building.  The machine Mr. Harwood plans on purchasing has safeguards that work to eliminate emissions while any smoke left after incineration is recirculated and purified before being released to the world outside.  The issue for Mr. Harwood is that his existing location is a 90-year-old building that cannot feasibly hold the incineration machine.  So, he needs an appropriate rezoning of just his property to a highway business district that would allow him to remodel and install the machine.  This will allow him to install the incineration machine in a manner that would minimize or eliminate any of the feared fumes or odors.

Black Mountain, like most local governments across the country, has a city planning committee that will hear requests for zoning variances or rezoning, make a determination about the requested change, and pass along their recommendation to the local legislative body who makes the ultimate decision on the issue.  The Black Mountain Planning Board voted 4-3 in favor of recommending rezoning for the funeral home and sent the matter to the Board of Alderman (the Black Mountain legislative body).  On November 7, the Board of Aldermen held a public hearing about the rezoning matter and heard the concerns of the citizens.  Many of the public comments were made in opposition to the installation of an incineration machine because of fear about toxins and fumes being released into the air.  Ultimately the board decided that this matter only came into the public eye due to the mistake in zoning and that arguments opposing the rezoning merely in opposition to the addition of a crematory were irrelevant because Mr. Harwood could install the machine in his building without rezoning and they, as the local government, could do nothing to stop him.  The Board of Alderman unanimously voted to rezone Harwood Home for Funerals to a highway business district as requested.  Had the property been properly zoned for a funeral home when the city most recently updated their zoning then Mr. Harwood would be able to expand his building and business without any approval from the city or input from the citizens.

Elliott Harry

Cemetery Tourist: Salem Cemetery in Winston-Salem, NC

Salem Cemetery was incorporated in 1856-1857 by E.A. Vogler, C.S. Bonner, A.H. Shepherd, H.A. Lemly, Thomas J. Wilson, Robert Gray, William Barrow, E.S. Patterson, E. Belo, H.W. Fries, Joshua Boner, E. Fries, and Jesse A. Waugh as the "Salem Cemetery Company." 

An early depiction of Salem from 1881 shows Salem Cemetery south of Cemetery Road and west of Park Avenue.

Salem Cemetery is adjacent to the Moravian cemetery of God's Acre, established in 1771, and just south of downtown Winston-Salem.  Photos below are from a visit on November 19, 2016.

The Historic and Present Government Failure to Protect Native American Graves

The Native Americans Grave Protection and Repatriation Act (“NAGPRA”) was enacted in 1990 to “provide for the protection of Native American graves, and for other purposes.” It states that the ownership of cultural items, including human remains, “excavated or discovered on Federal or tribal lands after the date of enactment” to either the Indian tribe where lineage can be ascertained, the tribe whose tribal lands the find was made, or the tribe that can be historically linked to the area that the find was made. NAGPRA goes into more detail on what items count and how to tell which Indian tribe has priority, discusses what to do with unclaimed cultural finds, and also dictates how to get permission excavating these finds and what to do if the discovery is accidental. The National Historic Preservation Act (“NHPA”) was enacted in 1966. It calls for federal agencies to consider the effects any planned activities may have on property that contains historic significance—a class that includes cultural items of significance to Indian tribes, such as human remains. NHPA also requires that agencies consult with Indian tribes that attach religious or cultural significance to property if a Federal or federally assisted project takes place on said property. On November 6, 2009, President Barack Obama signed Executive Order 13175 (“E.O. 13175”) which proscribed that “executive departments and agencies . . . are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.”

NAPGRA, NHPA, and E.O. 13175, taken together, should have been an important tool for the Standing Rock Sioux Tribe’s fight against the Army Corp of Engineer’s permission to construct the Dakota Access pipeline. However, on September 9, 2016, a federal judge denied Standing Rock’s motion for an injunction, a legal move made by the tribe over concern of the potential destruction of their ancestral lands which had been identified as sacred tribal burial grounds. While construction was halted in much of the contested territory, a small section of land containing the burial site was still in contention. In making this decision, the judge discussed the historic background of several pieces of law including NHPA, but not NAGPRA or E.O. 13175. Standing Rock argued that the Army Corp of Engineers had not engaged in tribal consultations required by NHPA, but the District Court for the District of Columbia refuted that argument for the specific area of land containing the burial site, stating “the Corps has likely complied with the NHPA and . . . the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.” This decision was largely influenced by the fact that the land containing the burial site "was not under the jurisdiction of the U.S. Army Corp" and therefore did not fall under the category of land susceptible to federal agency action in order to trigger NHPA protections.  However, the Justice Department swiftly released its own statement calling a halt on the pipeline’s construction, contradicting the sentiment of the D.C. district court.

The district court’s decision most likely did not take the full picture into account when making its decision, which is shown by its disregard of legislative and executive materials like NAGPRA and E.O. 13175 which, while maybe not exactly on point for the issue at hand, shows the government has an interest in protecting Indian cultural materials and engaging in meaningful conversation in collaboration so as to best respect the culture and history of these tribes which have largely suffered from our government’s machinations in the past. This sentiment was expressed in an open letter signed by over 1,500 archaeologists, museum directors, historians, anthropologists, and other professionals with an interest and expertise in culture and history. While the Justice Department rightly acted in time to put a halt to things, the fact that the injunction was denied shows that Native American graves are still at risk, especially if they are discovered by private companies on land which is considered neither tribal or federal (See: If Native American remains are discovered during a construction project, does NAGPRA apply?).

The process for excavating, exhuming, or constructing on the site of other historic or ”legitimate” cemeteries usually has more protections in order to avoid disturbing the “quiet” of the dead. It is an egregious oversight of law that has allowed and still allows Indian human remains to be disturbed and/or destroyed without any input on the people who, according to their culture, have the appropriate Right of Sepulcher and arguably a Right of Interment, due to their historic claim to the land and a common law presumption that the tribe itself is the closest kin. The issue is that lands considered culturally significant to tribes do not fall under the letter definition of "tribal land" or "federal land," largely due to the negligent wording of the historic treaties which parted the tribes from their land; the boundaries in these treaties do not match what tribes consider tribal land. The law needs to catch up to this simple and ancient gaffe in order to adequately protect the rights of these tribes and their deceased.  

Caitlin Stone

Cremation and the Perception of Death: The Vatican States that Cremated Remains should be Stored in a “Sacred Place”

In recent years, cremation has become increasingly popular as a means of disposing of human remains. Cheaper than burial, cremation is more accessible for lower income families. As a result of increasing popularity, there are more cremated remains (“cremains”) than ever before. The question of how cremains should be treated after cremation often leads to difficult decisions by family members. Among other things, cremains may be buried, kept by family members, scattered in a meaningful place, preserved in pieces of jewelry or other mementos, or even grown into a tree. The question of how loved one’s cremains should be treated is a deeply personal question that reflects the family’s and the deceased individual’s perception of death.

The Vatican has recently chimed in on how Catholics should treat cremated remains. In 1963, the Vatican stated that the burial of deceased bodies should be the norm, but that cremation is not per se anti-Catholic, and Catholic funeral rites should not be denied to cremated individuals.  In response, however, to the growing popularization of cremation and the creativity with which cremains have been treated, the Vatican issued a statement declaring that cremains should be kept in “sacred place,” such as a church or cemetery. Treatment of cremains in other ways, such as incorporating the cremains into jewelry or scattering the cremains, is sacrilegious. This statement is a reflection of the Vatican’s dissatisfaction with changing views on the perception of death. In essence, the Vatican feels that the manner in which cremains are often treated in modern society reflect secular notions of death or other “New Age” perceptions of rebirth.   The new guidelines promulgated by the Vatican state “[b]y burying the bodies of the faithful, the Church confirms her faith in the resurrection of the body, and intends to show the great dignity of the human body as an integral part of the human person whose body forms part of their identity.” As a result, individuals wishing to conform to Vatican guidelines must have special permission from a bishop to keep the cremains of a loved one at home.

The Vatican’s stance on the treatment of cremains reflects the shifting views related to the connection between the treatment of human remains and personal perceptions of the meaning of death.

Maria Collins