I am a professional scientist and not an attorney. Please be advised that my analysis in this post is not intended to be, and should not be construed as being, legal advice or counsel to anyone. If you need legal advice or counsel with regard to the content of TCA 11-6-107 (d)(1-7), the Tennessee Cemetery and Burial Site Laws, and how they might affect you or someone you know, please contact an attorney who is licensed to practice law in Tennessee.
Mr. Aaron Deter-Wolf at the Tennessee Division of Archaeology is hereby credited with clarifying some of the subtleties and nuances in the Tennessee Code Annotated, Title 46.
The Archaeology in Tennessee blog begins this new year by discussing an important subject that may intrude on a nice Tennessee afternoon when all else seems right with the world. You are performing some kind of soil-disturbing activity, and you run into buried bones that look as if they might be human. As actor Karl Malden used to say in the old American Express credit card commercials: “What will you do? What will you do?”
Tennessee laws prescribe your course of action. These laws are in the Tennessee Archaeology Statutes [Tennessee Code Annotated (TCA), Title 11 (Natural Areas and Recreation), Chapter 6 (Archaeology)]. Within this body of law, the specifically applicable statutes are in TCA 11-6-107 (d)(1-7). They are applicable to any person in Tennessee who disturbs soil and encounters human remains (a body, body parts, human bones, or a complete skeleton). The person performing these soil-disturbing activities might be a construction worker operating heavy equipment, a grounds worker using only a shovel, a homeowner digging a flower bed in her front yard, or an artifact collector digging for artifacts (with or without landowner permission)―basically just about any person who is disturbing soil for any reason in Tennessee. However, there are two important exemptions. These statutes do not apply to persons doing normal farming activities (including, but not limited to, plowing, disking, harvesting, and grazing) or to persons who are surface collecting artifacts. The term surface collecting is presumed to involve no soil-intrusive activities.
The provisions of TCA 11-6-107 (d)(1-7) that apply to encountering or disturbing human remains are as follows:
1. Any person who encounters or accidentally disturbs or disinters human remains on either publicly or privately owned land except during excavations authorized under this chapter, shall:
• (A) Immediately cease disturbing the ground in the area of the human remains; and
• (B) Notify either the coroner or the medical examiner, and a local law enforcement agency.
The term immediately cease means exactly what it says. A person must immediately stop their soil-disturbing activity in the area of the remains―literally freeze it in place. Why stop in the area of the remains rather than at just the specific remains that have been encountered? If a person has encountered one prehistoric human burial, other human burials may be located nearby in the same area. Prehistoric human burials often occur in spatial clusters. Immediately freezing the soil-disturbing activity in place avoids disturbance of these additional human burials. If a person has encountered the buried remains of a possible murder victim, freezing in place minimizes or prevents the dislocation and destruction of important evidence (both tangible and contextual) that may be necessary to identify the victim and prosecute the perpetrator.
After a person has frozen their soil-disturbing activity in place, he should avoid any temptation to reach out a hand, grab a bone or artifact, dislodge it from its in-situ resting place, and pick it up to examine it. Leave the bones, artifacts, and current day cultural objects (e.g., a cigarette butt) alone and let the proper authorities deal with them according to appropriate protocols and procedures.
The foregoing phrase “except during excavations authorized under this chapter” refers to legally authorized excavation work conducted by appropriate law enforcement personnel and technical personnel such as forensic anthropologists and field archaeologists.
When soil-intrusive activities have ceased, it is best to immediately call the local coroner or medical examiner and a local law enforcement agency. Waiting for hours or days can result in damage to the encountered human remains, accompanying artifacts, and legal evidence.
As previously noted, farmers are technically exempt from these notification requirements, but TCA 11-6-107 (d)(6)(A) states that any farmer who discovers or disturbs human remains should go ahead and notify the local coroner or medical examiner and a local law enforcement agency. In other words, they are not required to do it, but they are encouraged to go ahead and do it anyway.
2. Either the coroner or the medical examiner shall, within five (5) working days, determine whether the site merits further investigation within the scope of such official’s duties;
This further investigation would occur only if law enforcement authorities have reason to believe that the encountered human remains are recent and involve some sort of foul play that would be of primary concern to the Tennessee legal system.
3. If the coroner or the medical examiner, and law enforcement personnel, have no forensic or criminal concerns with regard to the site, then the coroner or the medical examiner shall notify the department.
The department refers to the Tennessee Division of Archaeology (TDOA) in Nashville, Tennessee, which is home base for the Tennessee State Archaeologist (Mr. Michael C. Moore). At this major transitioning point, further investigation of the remains becomes archaeological in nature, and decisions on the appropriate courses of action to take are made by TDOA in consultation with Native American groups and other interested parties.
4. Human remains and burial objects reported to the division of archaeology shall be treated as provided in §§ 11-6-104 and 11-6-119, and/or Title 46, Chapter 4, if applicable.
These statutory requirements apply to the TDOA and the process for legally terminating the use of a tract of land as a cemetery. The term burial objects refers to any prehistoric artifacts, historical-era artifacts, or other items of material culture intentionally buried with the encountered human remains.
5. A person who violates subdivision (d)(1)(A) or (B) [of TCA 11-6-107 (d)(1-7)] commits a Class A misdemeanor.
Provision 5 states the criminal penalties the State of Tennessee can impose on a person who fails to cease disturbing soil in the area of the human remains and/or fails to notify either the coroner or medical examiner―and a local law enforcement agency. In Tennessee, a Class A Misdemeanor is punishable by not greater than 11 months and 29 days in jail or a fine not to exceed $2,500, or both, unless otherwise provided by statute.
The history of Tennessee archaeology includes the activities of 19th century antiquarians and archaeologists who performed excavations in Tennessee. It would be fair to say that these individuals had a fetish-like attraction to prehistoric mounds and human burials, particularly the many stone box graves found on Mississippian archaeological sites in the Middle Cumberland region of Tennessee. They had a good reason for their fixation on human burials. In addition to the personal thrill that came from acquiring a so-called piece of the past and holding it in their hands, there was a prevailing belief that really nice, museum-grade artifacts would somehow “speak to them” (figuratively) about the nature of the ancient Native American peoples and cultures that made them. (Put another way, in old saw terms, they thought the way a thing was made would tell them something important about its maker and his cultural milieu.) As these folks quickly discovered in Middle Tennessee, museum-grade artifacts were most likely to be found as burial furniture in stone box graves dating to the Mississippian Period.
During the 20th and 21st centuries, this basic bit of information trickled down to a number of Tennessee artifact collectors, looters, and artifact dealers who had no personal qualms about disturbing the ancient resting places of Native American human beings to retrieve the artifacts buried with them. The State of Tennessee and Native American groups had hoped that the foregoing statutory penalties would severely curtail or end illicit burial excavations in Tennessee. A satisfying measure of success in this regard has been achieved by the State of Tennessee, but illicit disturbances of Native American burials still occur in Tennessee.
Digging for artifacts that occur outside of human burials in Tennessee is legal on privately owned lands―but only with landowner-granted permission to dig. However, the State of Tennessee had hoped that the criminal penalties for disturbing prehistoric human burials would also curtail ALL digging for artifacts on private lands. Conceptually, how was that supposed to work?
In most instances, a citizen standing on the ground surface of an archaeological site cannot see the features or artifacts buried underground. This includes human burials. Human burials may be present anywhere on an archaeological site, and a person standing on the ground surface never really knows where they are located. Consequently, a person can be sitting in their open hole and be randomly trenching along by digging into the wall of soil in front of his eyes. Then boom! It happens! A grapefruit knife or some other digging tool accidentally scrapes against a human skull or femur. Legally, at the precise moment when that happens, a human burial has been disturbed. Notice that TCA 11-6-107 (d)(1) specifically applies even if the person accidentally encounters a human burial. That is the critical moment of decision. If this person does not cease digging immediately where this human burial is located (and in the area of the human burial) and he fails to make the legally required notifications to his local coroner or medical examiner―and a local law enforcement agency―he is in violation of the law and subject to the above misdemeanor criminal penalties.
Sure enough, this hypothetical person only digs for the occasional loose artifact and always with a landowner’s permission, as Tennessee law states that he can do legally. He never goes to an archaeological site for the specific purpose of digging into a human burial and toting off its burial furniture. However, if he does not cease digging immediately when he accidentally encounters a human burial and if he does not make the required agency notifications―and he gets caught―the key problem for him is that the law enforcement officers do not know the digger’s motives with any certainty. They cannot read minds. All they see is a 175-year historical pattern of people digging into human burials to grab artifacts, a well-known artifact hound standing before them, helter-skelter holes in the ground, required notifications to agencies that were never made, and a disturbed human burial―and the overall situation looks very bad―meaning the circumstances look like probable cause to arrest our hypothetical person for misdemeanor violation of TCA 11-6-107. Even though discovering this human burial was purely accidental, chances are very high that the person will be arrested and prosecuted for intentional looting of a human burial—and this situation can lead to far worse in terms of state penalties. Here is how that can happen.
The Tennessee Cemetery and Burial Site Laws [TCA, Title 46 (Cemeteries)] give ancient Native American cemeteries and burials the exact same legal protections as the Euroamerican and African-American cemeteries and burials located in Tennessee urban areas and next to hundreds of white churches in rural areas. In other words, digging into an ancient Native American burial is the same as digging into the burial of your Uncle Fred. It is illegal to intentionally disturb any human burial in Tennessee without a written court order.
If our hypothetical person fails to immediately cease digging when the human bones in the burial are first encountered (without making the required notifications) and he continues digging into the burial, collects the bones or any accompanying artifacts, or attempts to hide the remains (e.g., by tossing the bones into the nearby woods or over a creek bank), he is committing at least one Class E Felony under TCA 39-17-312, which contains provisions relevant to abuse of a human corpse. If the human remains are in a stone box grave, mound, or shell midden, this person may also be committing a Class E Felony under TCA 46-2-105, which addresses willful destruction, defacement, or injury to any monument, tomb, gravestone, or other structures placed in a cemetery. Class E felonies in Tennessee come with a prison sentence of up to 6 years and no less than 1 year in a state facility. The jury may also assess a fine of no more than $3000.
This is why digging for artifacts on privately owned land in Tennessee, even with the written permission of the landowner, is a downright dangerous activity. You never know when you are going to encounter a human burial beneath the ground surface. As shown above, failure to obey the law upon encountering a human burial can get the digger into enormous trouble.