My Construction Project Has Discovered Human Remains: What Do I Do Now?

30 Days of Tennessee Archaeology, Day 21

Michael C. Moore
State Archaeologist and Director, Tennessee Division of Archaeology

Most archaeologists have discovered, or will encounter, human skeletal remains at some point during their career. These encounters comprise prehistoric Native American burials and/or historic period graves. Prehistoric Native American burials have been dug since the early 1800s for various reasons by researchers and hobbyists, as well as looters seeking to profit from the sale of associated burial objects on the antiquities market. Folks may not know that digging prehistoric Native American graves was perfectly legal in Tennessee until 1984 when legislative intent was established to cover these graves under the state cemetery statutes.

Historic/modern cemeteries have also fared poorly at times through landowner negligence, developer deceit, and vandalism. I’m aware of several development cases where cemetery tombstones were removed but the graves left in place. I have also observed a vandalized grave accompanied by candles and other offerings.  This particular desecration occurred the night before Easter, but fortunately the people involved did not disturb the interred individual as they dug on the wrong side of the tombstone.

fig 1

Figure 1. Coffin heavily damaged by backhoe during subdivision construction activity within an unmarked historic cemetery in Davidson County.

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Figure 2. Consultant removal of prehistoric stone-box graves, Davidson County.

Today, the current construction boom in Nashville has led to an increase in the discovery and removal of prehistoric and historic graves (Figures 1 and 2). Developers occasionally consult our office regarding the presence, or potential presence, of burials within their project areas. In those cases where graves are known to be present, a private consultant is often hired to evaluate the construction footprint. If burials are discovered, the consultant can recommend burial avoidance when possible but removal when necessary. One example is the Nashville construction project within the boundaries of a large prehistoric site where human burials had been dug in the past. In this particular case, the archaeological consultant discovered a previously unrecorded burial mound that contained well over 200 individuals. These individuals were legally removed through the process mentioned below.

However, most burial discoveries occur as complete surprises during construction. Recent cases in Nashville include an early historic cemetery within a subdivision entrance, historic graves found under an existing driveway, and prehistoric Mississippian stone-box graves within the footprint of a backyard pool.

So, what happened in those cases? First, Tennessee state law (TCA 11-6-107) required all digging to stop. That statute also required notification of local law enforcement, the medical examiner or coroner, and the Division of Archaeology. Local law enforcement and the medical examiner were contacted to assess any forensic concerns (homicide, suicide, missing person). The Division assisted in assessing remains as prehistoric or early historic, and took the lead once forensic concerns were ruled out. At that time the disposition of remains became the landowner’s responsibility. Burials could be avoided and left in place if they were not disturbed by proposed construction.

Tennessee has a legal mechanism to remove human burials, known as Termination of Land Use as Cemetery (TCA 46-4-101-104). Landowners petition Chancery Court for a court order to remove any human remains on their property (whether disturbed by proposed construction or not). The court order will include a project description, how the removal will be performed, and a designated reburial location for the removed individuals (on the same property if possible). Please visit here to see more information regarding cemetery removals.

There are several unique statutes regarding the disposition of Native American burials.  For example, under TCA 11-6-116 Native American observers are allowed (but not required) to be present during the removal of Native American graves. Also, under TCA 11-6-119 all removed Native American individuals and associated burial objects have to be reburied with six months of removal (although I can grant an additional six months for a total of one year). This particular statute also allows (but does not require) scientific analysis within that one-year period.

On a final note, what happens to prehistoric structures, palisades, refuse-filled pits, and other non-burial features exposed during the search for graves? Landowners are only responsible for human burials under state law, so over the past 20+ years the Division of Archaeology has requested permission from landowners to evaluate the non-mortuary features at no-cost. Permission to conduct such work has been granted in the vast majority of cases, including such well-known sites as Rutherford-Kizer and Brentwood Library.