Thursday, June 3, 2010

Illinois Cemetery Preservation, What you should know

The Illinois Historic Preservation Agencypage on historic cemetery preservation website is essential reading to understand the laws and regulations governing Illinois cemeteries--especially the ones located on private property.  Download the Illinois Historic Cemetery Handbook for excellent advice on attending to old, old cemeteries and grave stones.





Why do cemeteries become abandoned?

We must first define the term abandoned to understand some of the reasons why it occurs. In Illinois, a cemetery is considered to be abandoned when there have been no interments for thirty years and the cemetery has been exempt from real estate taxes during that period. A cemetery is also considered abandoned when there is no cemetery authority to care for the land (60 ILCS 1/130-5; 525 ILCS 30/3.01; 765 ILCS 835/9-14).

There are any number of reasons why cemeteries become abandoned and the most common of these are discussed here:

Size and location Small family plots, containing immediate and extended family members, were common in rural communities until the early 1900s. These plots were located on private farmland away from the main household. They were often created in the corners of farm fields, along wooded areas, and frequently on hilltops overlooking a stream. As the number of small, rural farms declined and land ownership changed through the decades, the locations of these family plots were lost and ultimately forgotten.

Ownership Land ownership is an important factor in preserving cemeteries. If family members have died or moved from the area, there is often no one interested in caring for the cemetery. The current landowner may have no personal connection to the cemetery and, therefore, has no interest in maintaining it. However, if an organization, such as a church, owns a cemetery, there is a better likelihood that the cemetery will be maintained.

Time The passage of time and exposure to the elements takes a great toll on cemeteries. Markers become worn and broken, fences fall into disrepair, and trees and brush quickly overtake the cemetery. Sometimes the task of preserving a cemetery is too physically and financially daunting and families simply choose to ignore it.

Economics Oftentimes rural cemeteries were located on a wooded or grassed ridge at the edge of a plowed field and the area was avoided. In more recent decades, some farmers have cleared these areas to increase their farm ground and removed the grave markers from their fields. This creates two important problems. First, the individual graves are no longer marked, and second, the location of the cemetery becomes permanently erased from the surface of the landscape. After 1990 in Illinois, it became illegal to remove grave markers from a cemetery (20 ILCS 3440).

Urban expansion has forced the removal or relocation of many old cemeteries. But it is a common misconception that all of the graves were moved. What often occurred is that some of the graves were moved, as well as many or all of the headstones. Historically, early cemeteries associated with urban areas were typically located away from the city limits. These burying grounds or old city cemeteries were gradually abandoned because they were full, had no permanent care funds for their continued maintenance, or were replaced by new city cemeteries organized into park-like settings. Graves left behind were unmarked and the cemetery location was eventually forgotten. This oversight became problematic as continued urban development disturbed these unmarked graves. Unfortunately, this is still a problem today.

Reasons to preserve cemeteries

It is important to clearly identify why you want to preserve a cemetery. To ensure the success of your cemetery preservation project, you need to establish short- and long-term goals. Short-term goals, such as cleaning markers of your family members, will give you small tasks to complete and you will have an immediate sense of accomplishment. Long-term goals can provide for future care of the cemetery. Many well-meaning individuals or groups want to restore a cemetery because it is the “right thing” to do and the project would contribute to the preservation of local history. However, people may meet for only a short period of time and never complete the project. Sometimes the project is completed and the cemetery looks great but the long-term maintenance of the cemetery is not planned. The cemetery will eventually fall into disrepair once again. Therefore, a successful cemetery preservation project must have plans for the immediate needs of the cemetery, but more importantly, there must be provisions for its permanent future care.

The following list of questions is specific to Illinois.

Other states may have different laws and requirements and you should contact their state historic preservation office for answers. In addition, these answers do not constitute legal advice. You should consult with an attorney concerning your legal rights.

Who is responsible for the care of old cemeteries?

The care and maintenance of abandoned, inactive cemeteries tends to be the responsibility of the family. Although active cemeteries are usually maintained by the owner or cemetery association, not all have provisions for perpetual care. These “unfunded” cemeteries will eventually become abandoned due to lack of financial support and basic care.

Under Illinois law, a county or township board can allot funds to restore a cemetery to a maintainable condition, such as brush clearing and mowing (50 ILCS 610).

Are there laws protecting cemeteries?

Yes. There are several Illinois laws that offer protection to cemeteries.

Does the Illinois Historic Preservation Agency provide grants to restore old cemeteries?

While we advise people on how to preserve their historical cemeteries, we are unable to fund cemetery preservation projects. Our staff is willing to train volunteers in the proper cemetery restoration techniques. Training opportunities and cemetery workshops will be listed on the IHPA cemetery webpage.

We encourage you to partner with local volunteer groups who may be interested in providing “hands-on” assistance to clean overgrown cemeteries.

The cemetery where my family is buried is now owned by someone else. Do I have legal rights to the cemetery?

You should consult with a lawyer on this matter. Some states have ingress and egress laws allowing for descendents and genealogists to visit abandoned cemeteries. However, there is no such law in Illinois.

If I have an abandoned cemetery on my property, do I have to maintain it? Do I have to allow access to it?

While laws exist in Illinois to protect cemeteries, there are no legal requirements for landowners to maintain abandoned cemeteries, nor do they have to allow access to them. Some landowners welcome families to visit and care for their ancestor’s graves while others do not. We encourage landowners to keep an open mind about allowing family members to visit old cemeteries on their property for this simple act of kindness can bring much satisfaction to families. To some, being allowed to visit the grave of a loved one is very meaningful. Perhaps the landowner could provide limited access to family members, for example when crops have been harvested. Ultimately, this is a moral as well as a legal issue, but you must respect the landowner’s decision.

Please note that failure to maintain a cemetery can create future problems to landowners. As cemeteries become abandoned and neglected, they are no longer visible and people forget their exact locations. A consequence of this is that future land developments can become costly when an abandoned cemetery is found and the landowner or developer must bear the financial responsibility to either preserve it or relocate it.

If a cemetery has an existing easement to it, the easement must be maintained for access. To determine if an easement exists, it will be recorded on the deed. This information is available at the Recorder of Deeds office in the county where the cemetery is located.

Can I have an abandoned grave or cemetery removed from my property?

Under Illinois’ Human Skeletal Remains Protection Act, no grave site may be disturbed without a permit from the Illinois Historic Preservation Agency. If, because of your activities, you are unable to avoid the burial site or cemetery without severe financial hardship, you may submit a permit application to remove the grave(s).

Professional archaeologists and Certified Skeletal Analysts must conduct the removal of graves and their contents. Refer to the permit application link for additional information.

Whom should I contact if I know of an abandoned cemetery that is being damaged?

If you observe vandalism in a cemetery, please contact local law enforcement and file a report. You should also notify the landowner. To discourage further damage, warning signs can be posted that inform visitors of the laws protecting cemeteries and the penalties associated with vandalism.

What should I do if I accidently disturb a grave site or find human remains?

Stop work immediately! Illinois law requires you to contact the county coroner within 48 hours of the discovery. The coroner’s office will determine if the remains are recent (less than 100 years old) and if the case warrants any further investigation. If these criteria are met, they will maintain jurisdiction. If the remains appear to be over 100 years old, then jurisdiction is transferred to the Illinois Historic Preservation Agency (IHPA) under the auspices of the Human Skeletal Remains Protection Act (20 ILCS 3440). The IHPA staff can assist you to determine the best course of action. However, it is the agency’s preference that the remains are left undisturbed and preserved in place.

I would like to restore an old cemetery. How can I get started?

Research, research, research! Contact the landowner and get their permission. A sample landowner permission form is provided here for your use. You should explain your project to them in order to reach an agreement about cleaning and maintaining the cemetery. It is important to have both short- and long-term goals in mind when you visit the landowner so that your level of commitment is clear. Landowners may be more agreeable to your project if you have plans to haul away trash and cut vegetation and then follow through with your promise.

If you are uncertain about who owns the land, visit the Recorder of Deeds Office in the county courthouse where the cemetery is located. Their staff will help you locate the property on the county maps and determine the owner’s name and address.

Please know that in Illinois, it is illegal to probe for buried grave markers. Basic cemetery preservation work, including probing, exposing, cleaning or repairing headstones, requires a permit from the IHPA. In addition, you must demonstrate that you have received proper training in basic cemetery preservation methods before you will be authorized to continue. Work can not begin until you have received a written permit from the IHPA.

Visit the Illinois Historic Preservation Agency’s cemetery webpage at www.illinoishistory.gov/Cemetery and download the cemetery preservation handbook. This handbook provides you with step-by-step instructions on how to research and document a cemetery, create a management plan, and safely clean gravestones. It lists additional on-line resources and helpful books written by experienced cemetery preservationists. Remember the number one rule – Do No Harm.

Is it appropriate to add a fence to a cemetery?

After a successful cemetery project has been completed, you might wonder if a fence is needed to protect it. Fences around a burial site help to stop intrusions and also define the cemetery boundaries. However not all cemeteries were originally enclosed with fences. If you add a fence to a cemetery that never had one before, you would be changing its content because fences have meaning. By today’s standards, enclosing a cemetery makes it look nice but to the people who established the cemetery, a fence was not necessary. Should you decide that it is necessary to have a physical barrier around the cemetery, you should consider using a material that is as non-obtrusive to the environment as possible. When possible, use vegetation or other natural materials rather than metal fencing. These create a more peaceful feeling in the cemetery as opposed to a more harsh setting.

If for any reason, you determine that a fence should be installed or replaced, you should consult with local authorities (city or county government) to make sure the fence you want conforms to any applicable codes.

Some of the older cemeteries may have had fences at one time and we would encourage you to repair or replace them. Please remember that if the cemetery is located on private property, the landowner may not want a fence constructed because it might hinder farming activities around the cemetery. You might offer a proposal of either planting trees or placing PVC pipes at the corners of the cemetery to mark the boundary. It is important to always follow through with your promises of upkeep in the cemetery because the landowner may be more supportive of your project.

Sometimes enclosing a cemetery with a fence is necessary to protect it from construction activities. In these instances, the IHPA requests a 100 foot buffer to ensure adequate protection. Once the development is completed, the fence can be removed.

Are prehistoric mounds considered burial grounds? Are Native American graves given special treatment?

In the interest of preserving cultural resources in the state and as provided by the statute, the IHPA considers prehistoric mounds to be grave markers. They are protected under the Human Skeletal Remains Protection Act, referenced above.

No. It is the intent of this Act that all graves are afforded equal treatment and respect for human dignity regardless of ethnic origins, religious affiliations, or cultural backgrounds.

Can a cemetery be listed on the National Register of Historic Places?

While cemeteries are not typically listed on the National Register of Historic Places and most can not be listed due to the restrictive nature of the National Park Service, there are criteria for archaeological resources, including cemeteries, that can be evaluated under Criterion A (association with events) or Criterion C (design). The following examples show how a grave or cemetery could be eligible:

It is the grave of a historical figure of outstanding importance and no other appropriate site or building directly associated with his other productive life exists; It is a cemetery that derives its primary significance from graves of persons of transcendent importance; The cemetery is distinguished by age, distinctive design feature, or its association with historic events.

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