Cemeteries exist as "resting places," and the norm of many cultures is that the dead should not be disturbed. However, for a variety of reasons, they are disturbed through the process of exhumation (removal of a corpse from the earth). Many early groups placed the corpse in the ground and exhumed it at a later date for religious rituals, a practice still undertaken by some traditional societies. In fourteenth-century France, "it became common procedure to dig up the more or less dried-out bones in the older graves in order to make room for new ones" (Ariès 1982, p. 54). The high death rate from the European plagues coupled with a desire to be buried in already-full church cemeteries led to old bones being exhumed so that new bodies could be placed in the graves.
In times past, on rare occasions prior to embalming, the body was removed from the ground. This happened when burial professionals or the authorities suspected that the person might have been buried alive. The French philosopher and death expert Philippe Ariès discussed necrophiliacs who disinterred dead bodies for sexual purposes and scientists who dug up corpses to conduct scientific experiments. It is common knowledge that for centuries until cadavers were legally provided, medical schools exhumed dead bodies for teaching purposes. One of the reasons the use of the wake was enacted in many societies was to deter those who might steal corpses.
In contemporary America corpses are disinterred when there is a need to identify a body or to establish cause of death like in the case of suspected homicide. For example, President Zachary Taylor was exhumed in 1991 to determine whether or not he had been poisoned, and the famous outlaw Jesse James's grave was excavated to prove that it was his body in the coffin. In addition, archaeological investigations often involve exhumation.
Under modern law, courts usually do not allow exhumation unless there are substantial and compelling reasons to do so. In a landmark U.S. Supreme Court decision ( Dougherty v. Mercantile Safe Deposit and Trust Company 1978), Justice Cardozo stated, "The dead are to rest where they have been lain unless reason of substance is brought forward for disturbing their repose." Three general principles govern the law of disinterment in the United States. First, it is presumed that a "decently buried" body should remain undisturbed where it was placed unless good reason is given to do so. Second, disinterment is considered the private concern of the immediate family and the cemetery. Third, if there is disagreement among the close relatives regarding a proposal for exhumation the matter is adjudicated by a court of equity. The court considers (in order of importance) the wishes and religious beliefs of the deceased (if these can be determined), the wishes of the spouse of the deceased, the opinions of other close relatives, and the policies and regulations of the cemetery when determining if exhumation should be allowed. California Labor Code stipulates that if it is suspected that a person has died as a result of injuries sustained in the course of his employment, the investigating appeals board may require an autopsy and, if necessary, the exhumation of the body for the purposes of autopsy. However, in accordance with the rules of equity, the close relatives can, if they wish, prevent the state (i.e., California) from either exhuming the body or performing the autopsy.
Scientists have long sought to understand life in early civilizations through the excavation of burial grounds and exhumation of human remains. In the United States the attempt to understand early cultures led to the exhumation of the remains of Native Americans, many of which ended up in the nation's museums and archaeology labs. In an attempt to prevent the desecration of Native American graves, the Native American Graves Protection and Repatriation Act was introduced in Congress in July 1990 and subsequently passed into law. The bill states that any human remains and objects found on federal or tribal lands after the date of enactment are to be considered owned or controlled by lineal descendants, the tribe on whose land it was found, the tribe having the closest cultural affiliation, or the tribe which aboriginally occupied the area. Anyone who discovers items covered by the bill must cease his or her activity, notify the federal land manager responsible and the appropriate tribe, and make a reasonable effort to protect the items. Anyone who violates the provisions of the bill may be fined, imprisoned not more than one year, or both. The penalty may increase to five years for a second violation. The act further states that all federal agencies and museums receiving federal funds that have control over any of the items covered in the bill are to, within five years, inventory and identify the items, notify the affected tribes, and make arrangements to return such items if the appropriate tribe made a request. If an item was acquired with the consent of the tribe or if the item was part of a scientific study which was expected to be of major benefit to the country, the request for repatriation (i.e., return) could be denied.
Ariès, Philippe. The Hour of Our Death. New York: Vintage Books, 1982.
Crissman, James K. Death and Dying in Central Appalachia. Urbana: University of Illinois Press, 1994.
California Labor Code. "Section 5700-5710." In the Dr. Reynoso Chiropractic and Sports Therapy [web site]. Available from www.drreynoso.com/info/laborcode/labor_code__section_5700.htm
Dougherty v. Mercantile Safe Deposit and Trust Company, 282 Md. 617, 387 A 2d.244 (1978). In the Gorman and Williams [web site]. Available from www.gandwlaw.com/articles/booth_brf.html .
"Native American Grave Protection and Repatriation Act." In the Center for Advanced Spatial Technologies [web site]. Available from http://web.cast.uark.edu/other/nps/nagpra/ .
JAMES K. CRISSMAN ALFRED R. MARTIN