Law After Death: Disinterment of Human Remains for the Journey Home
Researched and drafted by Kasey Reese, a student at Roanoke College. Edited and approved by Attorney Michael Modl.
On March 4th, 1865, the words of President Lincoln’s second inaugural address rang forth from the steps of the Capitol. His remarks of reconciliation are now immortalized into American history:
“With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”
Nearly 850 miles away, in Madison, Wisconsin, the sod covering the graves of 140 Confederate prisoners had settled. Most would consider Lincoln’s hope fulfilled, as many Union soldiers were given a “just, and a lasting peace.” Not so for those Confederate dead buried at Forest Hill Cemetery. They have been long forgotten by many and deprived of the opportunity to return home. Now, 150 years later, the labor to “care for him who shall have borne the battle,” has been given new breath for those that no longer have it. Whether Union or Confederate, all deserve a fundamental American burial tradition, which is a chance to have a proper and lasting resting place, near where they considered home. Genealogy, coupled with the law in regards to disinterment of human remains, is the first step in the long journey home for the Forest Hill Confederates.
Disinterment Legal Authority
The prevailing disinterment question is who has the authority over such an act? According to Wisconsin statutory law, there are more individuals than just next of kin to be considered. The highest level of authority is a representative directed by the deceased individual to carry out his/her will. Following, in order, is a spouse, child, parent, or sibling. If these avenues are exhausted, the degree of kinship, as determined by WI Stat. § 990.001(16), will be used to determine disinterment authority.
There are also non-familial authorities that have control over a decision to disinter. Bearing in mind the notion that a body and grave are considered two separate entities, cemetery authorities have the ability to disinter human remains for the purposes of maintaining cemetery grounds or to correct mistakes, as long as they notify the family of the deceased that the reburial process is taking place.
The party with absolute authority to disinter human remains is the court. Oftentimes, human remains are disinterred to aid in the process of a criminal investigation. Moreover, if a conflict arises between individuals claiming to have authority over a gravesite, the courts will become involved to resolve the dispute. In the meantime, no action will be taken to disturb the gravesite without proper resolution by the court system.
Disinterment Process: Two Avenues Without Court Involvement
In the state of Wisconsin, two routes can be taken to accomplish the legal removal of human remains, without court involvement: the conventional method and lobbying the state. The conventional approach is the typical vehicle for pursuing disinterment. However, if projects based on scientific research, education, historical value, or other compelling reasons arise, individuals can appeal to what is known as the Wisconsin Burial Sites Preservation Board.
A permit obtained from the county coroner is required to disinter human remains. An individual claiming disinterment authority must submit a written application to the coroner’s office stating the relationship and reasons for disinterment. The coroner will use discretion to approve the permit, as long as the request fulfills the legal requirements and there is no opposition by others claiming priority of authorization. Once the authorization for disinterment has been obtained, the process moves into the hands of the cemetery authority.
Wisconsin law states only cemetery authorities, or their designees, can open and close gravesites. The individual requesting the disinterment assumes the cost associated with opening, transporting, and reburying the remains. Overall, it is clear that descendants have a very straightforward path to disinterring and relocating remains.
Wisconsin Burial Sites Preservation Board
A more complex option is the process outlined by the Wisconsin Burial Sites Preservation Board (“Board”). The Board is an entity whose purpose is to catalogue and protect burial sites in the state of Wisconsin. The Board maintains a registry of persons with a claim of interest toward a single burial site or class of graves. Parties with Board-approved interest can then request a permit to disturb a burial site through the director of the Board, who is also the director of the State Historical Society.
To claim an interest in a catalogued burial site(s), one must submit an application for review by the Board. The Board considers whether or not an application is approved based on the type of interest claimed. Much like determining the authority of disinterment, the type of interest is hierarchical, and a permit applicant must demonstrate one of the following:
- Direct kinship
- Cultural, tribal or religious affiliation
- Scientific, environmental, or educational purpose
- Land use
- Commercial purposes
- Any other interests deemed to be within public interest.
Upon approval, the next step is to petition the director of the Board for permission to disturb a burial site. A written application stating the reasons for disturbing the burial site must be submitted. Any individual with catalogued interest, or the director, can request a hearing to be conducted to review, discuss, and determine the outcome of the application. If a hearing is not requested, it falls upon the director of the Board to determine the viability of the application. Either way, catalogued interests of the site and the interest of the public as a whole are taken into consideration.
If the application for burial site disturbance is approved, the director of the Board oversees archeological excavation of the remains. During and immediately following the archeological excavation, the remains stay within the control of the Board, unless otherwise agreed upon. Persons with catalogued interest in the registry can submit a written application for control of final disposition. The director will again consider priority of interests outlined at the beginning of the process and will turn over the remains pursuant to a decision.
Transportation of Human Remains
The final consideration to be made is the actual transportation of disinterred remains. According to Wisconsin law, the disinterment permit from the coroner’s office constitutes an authorization to transport human remains throughout the state. Nationally, there is no federal law or code regulating the transportation of human remains across state lines. Consulting the individual laws and codes of each state is the proper route to ensure compliance with the law.
At the outset, many individuals would likely consider repatriating the Forest Hill Confederates impossible. However, based on Wisconsin law and codes, such an undertaking is possible. Why should such a journey be pursued? Reconciliation? Sentiment? Justice? The most principled purpose is that those 140 Confederate dead are Americans and veterans in the eyes of the law. Entombed beneath the Madison sod are boys, men, sons, fathers, brothers and husbands who lived, fought, and died for home. Manifesting Lincoln’s generosity of spirit, for their veteran status, sacrifice, and dedication, they deserve to rest at home in a “just, and a lasting peace,” thus upholding the long-valued American burial tradition.
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