STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6585

June 7, 1989

CEMETERIES AND DEAD BODIES:

Disinterment of human remains

Reinterment of human remains

COURTS:

Order to disinter and reinter human remains

PUBLIC HEALTH:

Permit to disinter and reinter human remains

WORDS AND PHRASES:

"Established scientific institution or society"

A local health department permit or court disinterment decree is required before a landowner, excavator or scientific institution or society may disinter human remains.

A local health department permit or court disinterment decree is required before a landowner, excavator or scientific institution or society may disinter partial human remains, where the remains are in a condition from which it may reasonably be concluded that death has occurred.

An "established scientific institution or society" as used in MCL 750.160; MSA 28.357, and 1982 AACS R 325.8051 means an institution for the advancement or promotion of knowledge or an association organized for the purpose of scientific investigation and pursuits, which has displayed some degree of permanence and longevity.

When an historic period cemetery is disinterred and moved, the disinterred remains must be reinterred in a cemetery located in the same governmental unit or in adjoining governmental units or within a reasonable distance from the municipality where the historic period cemetery is discovered.

The cost of removing bodies from unanticipated burials and reinterring them should be at public expense, unless next of kin can be located and are willing to undertake those expenses.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, Michigan 48918

You have requested my opinion on five questions regarding the disinterment of human remains. You have informed me that because the Michigan Department of State is charged with the responsibility for preserving and protecting Michigan's historic and archaeological resources, it has occasion to participate in the disinterment of historic and prehistoric human remains, and is consulted with respect to the subsequent storage or reinterment of those remains. Your questions will be answered seriatim.

Your first question asks:

The settled policy of this state is to preserve and maintain the burial places of the dead. Avery v Forest Lawn Cemetery Co, 127 Mich 125; 86 NW 538 (1901). Consistent with this policy, the Legislature has enacted a number of statutes regulating disinterment or reinterment of human remains.

Section 2853 of the Public Health Code, MCL 333.2853; MSA 14.15(2853), provides in pertinent part:

It is a basic rule of statutory construction that where the Legislature uses certain and unambiguous language, the plain meaning of the statute must be followed. Browder v. Int'l Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). Although the provisions of MCL 333.2853(2); MSA 14.15(2853)(2), are applicable only to the disinterment of a body located in a cemetery, the provisions of MCL 333.2853(1); MSA 14.15(2853)(1), are not so limited, and clearly and unambiguously require a permit for disinterment and reinterment before disinterment of a dead body.

The other statutes and the administrative rule to which you have referred in no way conflict with the requirements of MCL 333.2853; MSA 14.15(2853).

1982 AACS, R 325.8051, states:

This rule requires that the police be notified following the discovery of human remains. Such notification is required even if the remains are not eventually disinterred. Representatives of established scientific institutions or societies conducting archaeological excavations are exempted from the provisions of this rule, but are still required to obtain a local health department permit for disinterment and reinterment prior to disinterment of a dead body, pursuant to MCL 333.2853; MSA 14.15(2853).

MCL 35.841 et seq; MSA 4.1341 et seq, addresses the disinterment and removal of remains of war veterans for the purpose of reinterring such remains in an area set aside exclusively for the graves of United States soldiers, sailors or marines. The Act authorizes the circuit court for the county in which the veteran is buried to enter a decree directing disinterment and removal. MCL 35.841; MSA 4.1341. The Act's applicability is limited to situations where the decree is sought on behalf of the Grand Army of the Republic, the United Spanish War Veterans, the American Legion or the Veterans of Foreign Wars. MCL 35.842; MSA 4.1342. Such a court decree is not necessary before a landowner or excavator disinters remains unless the purpose of disinterment is removal to a special veterans burial area. MCL 35.844; MSA 4.1344, requires that court decrees authorizing disinterment and removal provide that the same be done under the supervision of proper health officials. Where remains are disinterred under local health department supervision pursuant to a court decree, a separate health department permit is not necessary.

Section 160 of the Michigan Penal Code, MCL 750.160; MSA 28.357, states:

This section simply makes criminal the disinterment of a dead body by a person who acts wilfully and without lawful authority. It would, therefore, not apply to a person who had obtained a proper permit as required by MCL 333.2853; MSA 14.15(2853), or a court decree as provided by MCL 35.841; MSA 4.1341. Nor would it apply to an accidental or unintentional disinterment, although once a person became aware of the presence of a dead body, the person would then be obligated to report the discovery to the police and obtain the necessary permit.

Finally, although not raised in your question, it is appropriate to examine the aboriginal records and antiquities act, as last amended by 1988 PA 452, MCL 299.51 et seq; MSA 13.21 et seq. This Act provides that it is unlawful for a person to remove any human bones without the consent of the landowner, MCL 299.54; MSA 13.24, and further provides that a person shall not explore or excavate an aboriginal remain covered by the Act upon state-owned lands unless the person has obtained a permit from the Director of the Department of Natural Resources with written approval by the Secretary of State. MCL 299.53; MSA 13.23. Violation of any of the provisions of this Act is a misdemeanor. MCL 299.55; MSA 13.25.

It is my opinion, in response to your first question, that a local health department or court disinterment decree is required before a landowner or excavator may disinter human remains, regardless of whether the disinterer is a scientific institution or society.

Your second question asks:

"Dead body" is defined by Sec. 2803(1) of the Public Health Code, MCL 333.2803(1); MSA 14.15(2803)(1), to mean "a human body, or parts thereof, in a condition from which it may reasonably be concluded that death has occurred."

MCL 333.2853; MSA 14.15(2853), requires that a permit for disinterment and reinterment be obtained before disinterment of a dead body. This provision thus applies to the disinterment of partial human remains where those remains are "in a condition from which it may reasonably be concluded that death has occurred." In general, the discovery of partial human remains would lead to the conclusion that death has occurred, unless the circumstances under which they were found indicated that the remains were the result of a loss of limb which did not result in death, e.g., an accident or amputation.

Additionally, both MCL 750.160; MSA 28.357, and 1982 AACS R 325.8051 expressly apply to bodies and portions thereof. Therefore, partial human remains may be disinterred only in compliance with this statute and this rule.

It is my opinion, in response to your second question, that a local health department or court disinterment decree is required before a landowner, excavator, or scientific institution or society may disinter partial human remains, where those remains are in a condition from which it may reasonably be concluded that death has occurred.

Your third question asks:

In Detroit Home & Day School v Detroit, 76 Mich 521, 523; 43 NW 593 (1889), the court stated:

In a similar vein, a "scientific society" has been defined as any association of individuals organized for the purpose of mutual cooperation in scientific investigation and pursuits. People v. Cothran, 27 Hun 344, 345 (NY Sup Ct, 1882).

Additionally, the word "established" connotes some degree of permanency. Cornell v. Dalpiaz, 128 NE2d 132, 134 (Ohio App, 1952).

It is my opinion, in response to your third question, that an "established scientific institution or society," as that phrase is used in MCL 750.160; MSA 28.357, and 1982 AACS, R 325.8051, means an institution for the advancement or promotion of knowledge or an association organized for the purpose of scientific investigation and pursuits, which has displayed some degree of permanence or longevity.

Your fourth question asks:

1895 PA 49, MCL 128.31 et seq; MSA 5.3071 et seq, authorizes townships to seek and obtain a court order to vacate and remove private cemeteries located within a township for certain specified reasons. MCL 128.31; MSA 5.3071. The Act requires reinterment, at township expense, in the township cemetery or if the township does not have a suitable cemetery, then in a suitable cemetery in an adjoining township. MCL 128.34; MSA 5.3074. If the vacated cemetery belongs to a church or religious society, removal may be made to another suitable cemetery belonging to the same church or society within the township or an adjoining township, instead of to the township cemetery. Id.

1871 PA 164, MCL 128.41 et seq; MSA 5.3081 et seq, authorizes cities and villages to seek and obtain a court order to vacate and remove private and public cemeteries located within their boundaries for certain specified reasons. MCL 128.41; MSA 5.3081. Reinterment, at city or village expense, must be within a city or village cemetery if one exists, and if not, must be in a suitable cemetery within six miles of the corporate limits of the city or village. MCL 128.44; MSA 5.3084.

1929 PA 297, MCL 128.51 et seq; MSA 5.3091 et seq, authorizes the voluntary sale of public and private cemeteries to cities or villages upon order of the circuit court authorizing the vacating of the cemetery and approval of a 3/4 vote of scrip holders or stockholders in the cemetery association. MCL 128.52; MSA 5.3092. In such cases, the Act provides that the cemetery association shall be responsible for interment "within a reasonable distance from such city or village,...." Id. Objecting lot owners shall be separately compensated for removing and reinterring dead bodies if removed to a different location. MCL 128.54; MSA 5.3094.

There are no statutes addressing directly the reinterment of human remains, except where removed pursuant to a formal cemetery vacation.

It is my opinion, in answer to your fourth question, that when an historic period cemetery is disinterred and moved, the disinterred remains must be reinterred in a municipal cemetery within the same township, village or city as the remains are discovered and, if no such cemetery exists, in a cemetery in an adjacent township if unearthed in a township or in a cemetery within six miles of the city or village corporate boundary if unearthed in a city or village. It is my further opinion that if the historic period cemetery is known to belong to a church or religious society, reinterment may be in another suitable cemetery belonging to the same church or society located within, or within a reasonable distance from, the township or municipality where the cemetery is discovered. Finally, it must be noted that while the statutes discussed in answer to your fourth question establish certain locations within which a municipality must reinter bodies removed from a vacated cemetery, they do not so limit an individual who may desire to reinter in a different location a body over which he or she may exercise control.

Your fifth question asks:

Relocation of established public or private cemeteries must be pursuant to the vacation procedures set forth in the statutes discussed in response to question 4. In each case, the vacating governmental entity is responsible for costs of disinterment and reinterment.

The Legislature has not addressed the issue of allocation of costs for disinterment and reinterment of burials which are not part of established public or private cemeteries. However, in the event a contractor inadvertently discovers a burial or parts of a human skeleton, the contractor is obligated to immediately notify local police authorities. 1982 AACS, R 325.8051. The contractor is also required to obtain a permit from the local health department for disinterment and reinterment before removing the body. MCL 333.2853; MSA 14.15(2853). Under these circumstances, it is most reasonable that local authorities make appropriate efforts to determine and notify any next of kin, who could then claim the body, and if unable to do so, undertake to bury the body at public expense. MCL 52.205(5); MSA 5.953(5)(5). See also MCL 333.2653; MSA 14.15(2653).

It is my opinion, in response to your fifth question, that the cost of removing bodies from unanticipated burials and reinterring them elsewhere shall be at public expense, unless next of kin can be located and are willing to undertake those expenses.

Frank J. Kelley

Attorney General