A grave situation: protecting the deceased and their final resting places from destruction.

• Author: Olexa, Michael T.
• Position: GENERAL PRACTICE, SOLO AND SMALL FIRM

Eternal resting places are under threat and the dead are finding that eternity is not forever after all. History is more than words; it is the foundation of our buildings, art, tools, and household items. Final resting places of the dead have a dual existence. Gravesites serve as hallowed places of permanent rest, but more importantly, these sites often reveal how our ancestors lived and offer insights as to our current way of life. Truly constituting American "cultural resources," the physical remains of people and their way of life are worth preserving. (1) Cultural and historical resources, however, cannot be replaced if they are destroyed by land development, erosion, or relic hunters. Our heritage as Americans, and human beings, belongs to everyone. Without protection, the loss of archaeological and historic sites will result in the loss of irreplaceable information of the past. As Judge Brannon once stated, "If relatives of blood may not defend the graves of their departed, who may?" (2) This question merits exploration.

In Florida: Statutory Protection for Cultural Resources

Each state has enacted laws to protect and preserve archaeological sites. Most use a permit system to regulate digging and artifact collection on public lands. Trafficking in human remains is clearly illegal in all states. (3) Florida statutes and case law protect artifacts and human burials on public and private lands, but ownership of artifacts generally depends upon where they are found. (4) Artifacts discovered on private property belong to the landowner, and those recovered from state-owned land remain property of the state. (5) However, Florida law permits those who recover isolated artifacts from parts of Florida rivers to keep them if they report the find to the state. (6) Two caveats bear consideration: 1) entering the state's or another person's property without permission to search for artifacts is trespass to land; and 2) removing artifacts from another's land without their consent is theft. (7) Discoveries of human remains and artifacts associated with human burials are protected regardless of property ownership. (8)

Florida's legislature has enacted many statutes to further the goals of preserving and protecting the state's cultural heritage. Four pieces of legislation were devised to fund and provide public access to archaeological sites and protect unmarked human remains: 1) The Florida Museum of Natural History Act; (9) 2) Emergency Archaeological Property Acquisition of 1988; (10) 3) the Florida Historical Resources Act; (11) and 4) Offenses Concerning Dead Bodies and Graves. (12)

The Florida Museum of Natural History (FMNH) at the University of Florida must maintain a depository of archaeological and ethnographic specimens and materials to provide a base for research on the distribution of prehistoric archaeological sites, and an understanding of the Native American and historic Euro-American cultures that occupied them. (13) Under Florida law, "such collections shall belong to the state with title vested in the museum." (14) FMNH must comply with pertinent state archaeological rules. Other institutions, departments, and agencies are authorized to deposit collections from archaeological sites to the FMNH. The museum is authorized to accept, preserve, maintain, or dispose of such specimens and materials in a manner that makes each collection and its accompanying data available for research and use by FMNH staff, and by cooperating institutions, departments, agencies, and qualified independent researchers. (15)

The Emergency Archaeological Property Acquisition Act of 1988 created a rapid method of acquisition for a limited number of specifically designated properties that may bypass previously accepted state land acquisition methods. The State Archeology/Burial Sites Fund can be used to protect properties that are of major statewide archaeological significance from destruction resulting from imminent development, vandalism, or natural events. (16) The act requires $2 million to be annually segregated in an account for emergency archaeological acquisition. This funding applies only to property that is an archaeological resource of statewide significance, and when such resource's historical significance will be irretrievably lost if the state cannot acquire the property. (17)

Under the Florida Historical Resources Act, all treasure trove, artifacts, and objects having intrinsic historical and archaeological value that have been abandoned on state-owned lands or state-owned sovereign submerged lands belong to the state, with the title thereto vested in the Division of Historical Resources (DHR). (18) The Florida Historical Resources Act authorizes DHR to 1) adopt rules as deemed necessary to carry out its duties and responsibilities; 2) enter into contracts or agreements with other public and private entities; and 3) accept gifts and loans. (19)

DHR must acquire, maintain, preserve, interpret, exhibit, and make available for study objects that have intrinsic historical or archaeological value relating to the history, government, or culture of the state, including tangible personal property. (20) The act also authorizes DHR to arrange for the disposition of such specimens at accredited state institutions, and to loan specimens to permit-holding institutions (e.g., museums) for study, display, and curatorial responsibilities. (21) The DHR can designate any archaeological site of significance to the scientific study or public representation of the state's historical, prehistorical, or aboriginal past as a state archaeological landmark, or any interrelated grouping of significant archaeological sites as a state archaeological landmark zone.

Individuals are prohibited from conducting field investigation activities on land designated as an archaeological site without first securing a permit from DHR. (22) However, DHR may allow permitted archaeological activities to be undertaken by reputable museums, universities, or other qualified entities that have, or will secure, the archaeological expertise for performing "systematic archaeological field research, comprehensive analysis, and interpretation in the form of publishable reports and monographs," which must be submitted to DHR. (23) State institutions that DHR designates as "accredited institutions" are allowed to conduct archaeological field activities on state-owned or controlled lands, or within the boundaries of a state archaeological landmark zone, without obtaining an individual permit for each project. (24)

Penalties for violation are more stringent for those who undertake prohibited activities by excavation, in part because of the substantial damage that is often left behind. (25) Another reason for the harsher penalties is that excavation can disturb the spatial arrangement of archaeological artifacts and human remains. (26) For example, fines do not exceed $1,000 or one year in prison where no excavation is involved. Committing such offenses via excavation can result in fines up to $5,000 and five years in prison. (27)

Protection Specifically for Buried Human Remains

Buried human remains in Florida have distinctive legal protections--both statutory and court-sanctioned. Under Florida law, knowledge of the gravesite's existence can define which law is applicable.

* Statutory Protection for Unmarked Human Burials--The Florida Legislature has enacted statutes pertaining to unmarked human burials, intending that "all human burials and human skeletal remains must be accorded equal treatment and respect based upon common human dignity without reference to ethnic origin, cultural background, or religious affiliation." (28) This section discusses some of the laws that may apply in the event that historical human remains are encountered unexpectedly.

The mandates of Florida Statutes apply when human skeletal remains, human burial, or associated burial artifacts have been discovered within the state. (29) An "unmarked human burial" is statutorily defined as "any human skeletal remains or associated burial artifacts" or any location connected with such remains (whether artifacts were located there or legitimately believed to be present) and the location is not marked as a gravesite. (30)

Upon discovery of an unmarked human burial, other than during an authorized archaeological excavation, "all activity that may disturb the unmarked human burial shall cease immediately, and the district-medical examiner (DME) shall be notified." (31) After receiving notification of the unmarked human burial, the DME has 30 days to determine whether to maintain jurisdiction or to refer the matter to the state archaeologist. If the unmarked human burial is determined not to be involved in a legal investigation and represents the burial of an individual who has been dead 75 years or more, the DME will notify the state archaeologist. (32)

Upon receiving notice from the DME, the Department of State's DHR may assume jurisdiction over and responsibility for the unmarked human burial. This procedure is conducted to initiate efforts to properly protect the burial, human skeletal remains, and associated burial artifacts. (33) The state archaeologist must attempt to locate and consult with people who may have familial, community, tribal, or an ethnic relationship with the deceased, to determine proper disposition of the remains. (34) Frequently, no links to family or community can be identified. To determine the proper disposition of the burial in such cases, the state...