br>Brief Fact Summary. American Indian remains were found at a site that was intended for a subdivision.
Synopsis of Rule of Law. American Indian burial grounds do not qualify as a cemetery entitled to protection from disinterment.
A demurrer admits all material and issuable facts properly pleaded.View Full Point of Law
Issue. Does the Indian burial ground achieve a protectable status as a public cemetery by virtue of its prior status as a public graveyard?
Plaintiff refers to a code, which prohibits the disinterment of human remains without authority. A cemetery is defined as six or more human bodies being buried at one place.
An 1854 law made punishable the mutilation of any public graveyard and the disinterment of any deceased person in any grave yard. This was replaced by an 1872 code, which enacted two means of creating a public cemetery. But, the 1854 law was not incorporated into the 1872 law, as claimed by Plaintiff. The Indians were not using the burial ground in 1873, so it cannot be considered a cemetery.
Discussion. The court offers no protection for American Indian burial sites. It seems as though the court is using technicalities of the cemetery codes to further property development, at the expense of American Indian burial grounds.